President Biden’s Justice Department is asking the Supreme Court to resurrect a regulation on ghost guns that the feds say is necessary since the weapons have been used in “an explosion of crimes” nationwide.
A lower court had issued a decision vacating a rule implemented by the Bureau of Alcohol, Tobacco, Firearms and Explosives that would update the definition of firearm, permitting the requirement of a serial number to be added to ghost guns among other restrictions related to firearm sales.
The district court reasoned ATF went beyond its authority directed by Congress in implementing the rule. That led to a nationwide order vacating ATF’s rule.
But the Biden administration says the regulation is necessary because police saw a 1,000% increase in the use of ghost guns to commit crimes from 2017 to 2021.
The guns are made from kits sold online where an individual can use a tutorial video to assemble one in “as little as 20 minutes,” according to the feds.
“Some manufacturers of those kits and parts assert that they are not ’firearms’ regulated by federal law, and thus can be sold without serial numbers, transfer records or background checks. Those features of ghost guns make them uniquely attractive to criminals and others who are legally prohibited from buying firearms,” wrote Elizabeth Prelogar, the U.S. solicitor general, in the government’s filing Thursday.
The request was submitted to Justice Samuel A. Alito Jr., who oversees appeals from the 5th U.S. Circuit Court of Appeals. The 5th Circuit had rejected the Biden administration’s request to vacate the lower court’s order, and set oral arguments in the matter for September as the appeal is pending.
Ahead of those arguments, the feds have asked the high court for permission to implement the rule while the appeal is ongoing.
Firearm owners, advocacy groups, and manufacturers and distributors of ghost guns challenged the regulation.
Roughly half a dozen lawsuits have been filed against AFT’s rule, and most cases are still undecided. Two courts, according to the Biden administration’s filings, rejected the challenges to the rule. But the lower court in this case decided to invalidate it.
Brian Abbas, the lawyer for the plaintiffs who challenged the ATF ghost gun regulation, said making guns in one’s home is part of American pastime and the agency has tried to broaden its control by redefining “firearm” to include ghost guns.
“The ATF cannot unilaterally expand its own power by defining more and more items as ’firearms.’ Our current position is essentially the same position that the government has held for over 50 years: that the ATF does not have the power to regulate non-firearms,” he said.
In the district court, they argued the executive branch violated the separation of powers trying to regulate ghost guns as if they were firearms.
They also said the feds violated the Administrative Procedure Act while issuing ATF’s rule.
“Congress also did not give the agencies the authority to regulate the broad array of materials that may, at some point in the future, be manufactured into firearms by private individuals,” their complaint read.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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