Supreme Court Ruling Allows 'Ghost Gun' (For the Time Being)

FILE - In this Jan. 13, 2014 file photo, California State Sen. Kevin de Leon, D-Los Angeles, displays a homemade fully automatic rifle, confiscated by the Department of Justice, as he discusses his proposed legislation dealing with "ghost guns," at the Capitol in Sacramento, Calif. Two weeks after turning the calendar on a year that saw four members of the state Senate face criminal charges, the body's new leader on Wednesday, Jan. 14, 2015, defended one of his own bills amid reports the FBI had questions about it. De Leon said his office has not been contacted by the FBI about a failed clean energy bill he presented two years ago. (AP Photo/Rich Pedroncelli, File)

There’s been a significant step (backward) in the ongoing “Ghost Gun” issue. On Tuesday, August 8th, the Supreme Court ruled that the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE)’s “Frame or Receiver” rule being litigated in VanDerStok v. Garland may go into effect pending further litigation.

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WASHINGTON, DC (August 8, 2023) – Today, Firearms Policy Coalition (FPC) and FPC Action Foundation (FPCAF) responded to the Supreme Court’s order in VanDerStok v. Garland, which will allow ATF’s “Frame or Receiver” Rule to go into effect while the government appeals the district court’s judgment that vacated it. The case will now continue at the Fifth Circuit where oral arguments are scheduled for September 7th.

“We’re deeply disappointed that the Court pressed pause on our defeat of ATF’s rule effectively redefining ‘firearm’ and ‘frame or receiver’ under federal law,” said Cody J. Wisniewski, FPCAF’s General Counsel and Vice President of Legal, and FPC’s counsel in this case. “Regardless of today’s decision, we’re still confident that we will yet again defeat ATF and its unlawful rule at the Fifth Circuit when that Court has the opportunity to review the full merits of our case.”

Plaintiffs in this case are two individuals, Tactical Machining, LLC, and FPC. FPCAF represents the Plaintiffs, alongside Mountain States Legal Foundation.

The Court’s order, which grants the government’s application to stay the district court’s ruling while the matter is on appeal, allows the BATFE rule to take effect pending the government’s appeal of the district court’s judgment to the Fifth Circuit. Further arguments in this case will be heard in the Fifth Circuit in September.

Here is the key language from the “Frame and Receiver” rule:

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Definition of a “frame or receiver” includes a partially complete, disassembled, or nonfunctional frame or receiver that has reached a stage in manufacture where it may quickly and easily (“readily”) be made to function as a “frame or receiver” and expressly excludes a block of metal, liquid polymers and other raw materials or a frame or receiver that has been destroyed.

BATFE doesn’t know how to define “…quickly and easily (‘readily’),” and neither does anyone else, although they do have the sense to exclude “a block of metal, liquid polymers and other raw materials…” and so on. If one was the betting sort, the smart bet would be that when the Frame and Receiver Rule has no discernible effect on the appearance of hand-crafted firearms, that exclusion will disappear. In fact, it wouldn’t be surprising if they went after private ownership of mills, metal lathes, and 3D printers.

For anyone who understands anything about firearms, this is an issue that is well to the left of nonsensical. The government appears to be concerned about how easily someone can assemble a semi-auto rifle, but the fact is that no matter what stock materials one may start with, guns, in general, just really aren’t very complex pieces of machinery. The modern form of a semi-auto rifle, that being a self-loading rifle that fires one time for each trigger pull and has a detachable box magazine in front of the trigger guard, has been around since 1905. The vaunted AR-15 platform is the flower of 1950s technology. Semi-auto handguns date to the late nineteenth century, as do pump shotguns. Revolvers? They’ve been around as mass-produced pieces since the 1830s.

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Nothing the government can do will stop anyone from obtaining a firearm if they really want one. Forget 3D printers; a drill press and a welder will allow someone to turn out a working submachine gun along the lines of a Sten or an M3 Grease Gun. Those kinds of weapons are the easiest of all to make; cheap, mostly stamped parts, and quick and easy to put together. That is what the country can expect with real hand-made guns.

And, yes, they can easily be made with “a block of metal” as a starting point.

This ruling is a loss for Second Amendment advocates, but it’s a tactical loss, not a strategic loss. The real action will come in the Fifth Circuit’s ruling in September. We here at RedState will keep you posted.

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