The United States Government has filed for a Writ of Certiorari with the United States Supreme Court challenging the Fifth Circuit Court of Appeals decision to uphold a District Court’s preliminary injunction enjoining the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) from enforcing the final rule on frames and receivers (Final Rule 2021R-05F).
The case, VanDerStok v. Garland, was filed in Texas by Jennifer VanDerStok, Michael Andren, the Firearms Policy Coalition (FPC), and Tactical Machining L.L.C challenging the ATF’s rule that reclassified unfinished frames as firearms. After success in the case, multiple other companies in the 80% firearms space filed motions to intervene. After JSD Supply filed its motion to intervene, District Court Judge Reed O’Connor issued a nationwide injunction, knocking down the rule in its entirety.
Lawyers for the Department of Justice (DOJ) appealed the judge’s decision to the Fifth Circuit Court of Appeals, asking the court to overturn the injunction. A three-judge panel decided to let most of the injunction stand, effectively killing the rule. Instead of asking for an en banc hearing where the full Fifth Circuit would hear the case, the government requested SCOTUS to stay the decision until they could petition the high court to hear the case.
Most likely, the government chose to forgo the request for an en banc hearing because of the makeup of the Fifth Circuit. The court ruled in a 13-3 decision against the ATF’s bump stock rule in Cargill v. Garland. The plaintiffs in that case made arguments similar to those in VanDerStok, including violations of the Administrative Procedures Act (APA). Chances are small that the en banc would rule differently than in Cargill, which is currently docketed for SCOTUS to hear.
The Supreme Court, by a 5-4 margin, would grant the stay until the government could file a Writ of Certiorari with the court. The stay will remain in effect until SCOTUS decides whether to grant Cert. If the high court doesn’t take up the case, the stay will automatically be removed, meaning the rule will again be dead.
The government’s main argument for the Supreme Court to grant Cert is that it is important for public safety. This argument appears to be trying to apply “interest balancing,” but that legal test was struck down in the Bruen decision, which states that only the original text, tradition, and history of the Second Amendment can be considered when it comes to firearms. The government lawyers seem to be trying to walk back the SCOTUS opinion that Associate Justice Clarence Thomas wrote.
“Ghost guns provide a ready means for felons, minors, and others who are prohibited from buying firearms to circumvent the law—thwarting Congress’s ‘comprehensive scheme’ intended to ‘verify a would-be gun purchaser’s identity,’ ‘check on his background,’ and thereby keep guns out of the hands of criminals and others who should not have them.’” The government states. “And on the back end, the lack of records and serial numbers means that ghost guns have ‘severely undermine[d]’ law enforcement’s ability to ‘determine where, by whom, or when’ a firearm used in a crime was manufactured and ‘to whom [it was] sold or otherwise transferred.’ That, in turn, has impaired law enforcement’s ability to apprehend violent individuals who may pose an ongoing threat to public safety. By ensuring that ghost guns are regulated as what they actually are—firearms—the two challenged provisions of the Rule ‘prevent easy circumvention of the [Act’s] entire regulatory scheme’ and are thus ‘critical to public safety.’”
The Supreme Court doesn’t have a timeline for deciding whether to grant Cert, but the decision will have a lasting impact on the 80% firearms market and other ATF rules.
About John Crump
John is a NRA instructor and a constitutional activist. John has written about firearms, interviewed people of all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons and can be followed on Twitter at @crumpyss, or at www.crumpy.com.
Hahaha! Claiming they need records and serial numbers for tracking and solving cases, when they cannot point to a SINGLE CASE, not one, that was solved by tracing the gun’s serial #. All #s do is help create a registry and later confiscate and track, the scumbags! Besides which, public interest and balancing interests is no legal arguement when it comes to arms and the 2A. The gov always used that bs to claim posting guns prohibited signs protected people, which was in their interests, when all it did was disarm and victimize them, creating shooting galleries for evil and… Read more »
LOL, the cop pulled over a car on my tv cop show live last night and he ran the VIN numbers on an AR and two Glocks. So, I guess now, cars have serial numbers since guns have VIN’s. LOL The number is good for one other purpose besides tracking who owns what where, it can tell where the gun was stolen from but not who took it. The bad guy uses it or trade/sells it and then it gets thrown away or sells it again. I have never heard of the stolen gun being returned to the person it… Read more »
Good question. I personally don’t know anyone that has had their guns stolen. I know of a couple who lived on a sailboat that lost a couple of guns when their boat sank in a storm…
I’ve seen a few others like that when watching cop shows and they ask where their guns are.
I’ve seen that – but those shows depicted NYC. Doesn’t NY openly keep registry of all legal guns in the state? Difference from ATF is that federal law outlaws federal registry – so they have to hide it and give it a different name (it’s a database, not a registry!). Other different is that pretending they don’t have a registry makes AFT’s backwards approach miss some firearms and work less effectively (thank goodness!).
Many moons ago while at work one day I received a call from someone saying they were from the (then) Dade County Public Safety Department (county cops in the Miami, FL area). This unknown (to me) person wanted to know what guns I owned. When I responded that how many and what kind of guns I owned were none of his business, he responded that they had recovered some stolen guns, the person in custody said they had been taken from my apartment, and he wanted to know if I could identify them. Bottom line, they were mine and were… Read more »
Yeah, all my guns were on that boat, too! A real tragedy, and a coincidence that you knew them.
Seriously, thoughI worked a burglary once, in which firearms and jewelry were stolen. I asked the victim if he had a list of the serial numbers, and he looked sheepish and said, “Yeah. It was in the jewelry box.”
My son had a pistol stolen from him. It was recovered after about a year from an arrest. It took three years after that but it was returned. That was in Neb. They waited until court and appeals were done.
I guess they figured that he didn’t have a right to have it back until they were done with it. They could have taken photo’s, did the test for the bullet if they needed it and returned it ASAP like they should of in the first place. It was not their gun. 3yrs. Ridiculous.
I agree but at least he got it back. For a while I thought it wouldn’t happen. And I’m sure the state it’s in makes a difference
I’m pretty sure if it was commiefornia he could have kissed them good by.
Like I told a maggot infested brain LIEyer one time, what is the point of buying one of his “Gun Trusts” to convey any guns into, if they get taken and then you have to spend 50K in attorney’s fees to get back 5K worth of guns? He asked me if I was an attorney, and I told him that I’m better than any attorney on the planet! Then he asked me how that was true, and I said that “it’s because I UNDERSTAND the Law!” The little weasel nearly crapped his pants right there! No one yet has been… Read more »
Gun trust conveys right of possession to all listed trustees for NFA items. That an removal from probate are only purposes I can see. Trust lawyers recommend not keeping a list of guns in the trust… NFA tax stamps and engraving prove ownership. Other items – discuss with your family – likely best to claim they belonged to trust when you die. Can simply transfer from trust to individuals thereafter if desired – since it’s a personal transaction. When AFT offered “free tax stamps” as part of brace rule – they also required a notarized document proving braced pistol belonged… Read more »
I would say the department matters, have a friend that the city of miami recovered a gun stolen from his condo after a few months, has been trying to get it returned for around ten years all he gets is excuses
It was probably “held as evidence” by a detective who took a liking to it. Or, destroyed when the case concluded, which means it really got sold by the evidence locker chief, and the money used to line pockets.
“Hey, mang! I just stole some great tires off an AR-15 I found. I would have hotwired it, but I din want the vin number to get me in trouble.”
You would think a law enforcement officer would know these things, but I’ve seen some profoundly ignorant (and a few stupid) ones. Most police officers aren’t “gun” people, either. There is probably a higher percentage of firearm enthusiasts in law enforcement that most careers, but it’s still not a majority.
fun part is “serial” numbers on government contract guns are not serial numbers they are contract specified, I have 2 1911s (to be fare 1 is a A) with the same number 1 is a ww2 us&s the other a ww1colt I also have a Remington Rand that has close to the same number and according to records there IS a gun with the same number (it passed through cmp)
I would be real interested in knowing how many actual 80% homemade firearms have been recovered at the scene of a crime nationwide. If they are stating that they can’t solve the crime without serial numbers and registered owners, then they must have a list with every 80%er they have recovered. I would be willing to suggest that there is less than 10. Anyone who took the time to build one is not likely to let it be stolen, and remember there are severe penalties in a whole lot of states if your gun is stolen and you don’t report… Read more »
All the S/N tells is who last legally transferred the weapon through an FFL. Literally not a single case has been solved tracing the weapon to last owner, and the majority of stolen guns are never returned to those who report the theft. Making reporting mandatory is making you a slave, and reporting a gun stolen does nothing to prevent its use in a crime, so the states that have that bs and unconstitutional “law” can suck it.
Actually the S/N can only lead to the first purchaser unless the weapon subsequently passed through the hands of another FFL and that FFL has turned in its bound books (or had them illegally copied by ATF inspectors.)
Good post question, but first off, WHO gets to say what an 80% completed gun is? Is it measured by the number of hours of machining that are involved? Is it by the volume or the weight of material removed? Is it by the number of separate steps of the machining that was done? Is an 80% gun made by one company actually the same as from another company? How do you measure that for uniformity across the boards?? If no set standard is available, then the idea falls under the Void For Vagueness Doctrine! If it’s vague, then it’s… Read more »
Fawk JoeBama!
Just imagine when Slo CCP Joe dies and Kamala (or Big Mike) takes over. The left will really afraid of ghosts. They’re starting to be afraid now.
Background checks and NICS were non-existent 35 years ago… we ordered guns via usps delivery by catalog, even from Sears. No problems. We must return to that freedom. The GCA and NFA and various state bans on mags and scary black rifles are unconstitutional, and without any legal power, and thus they will all be disavowed, set aside, abolished, neutered. We recognize no gun control laws, as the gov is specifically prohibited from having any legal authority over citizens’ arms.
If you CUT OFF government funds the prosecutors and judges will go home and the ATFE will disperse.
Problem solved.
HLB
And just how is that done? By showing your UNIVERSAL Get Out Of Jail For Free Card!, that is how! Is there really a UNIVERSAL Get Out Of Jail For Free Card?? Well, yes, there IS such a thing! But it is kept well hidden and is known about by only a very few though, due to various reasons. The main one, is the populace is kept ignorant, dumbed down, as some like to say, via the public fool system. No one is taught real history or how to think about things anymore. Virtually no one knows what logic is… Read more »
give a rest, Mark. no cares to read your excessive borish diatribes.
It is said that when all you have is a nail everything starts to look like a hammer. Technology has made every facet of governments’ gun control regime obsolete so quickly that they’re desperately trying to pretend that something that never worked in the first place still works. You almost have to feel sorry for them but not quite. That explains their frantic attempts to ban stuff that cannot be banned (3D printers) in order to continue to control things (guns) that they never really controlled in the first place. It’s a tricky problem and we should all be thankful… Read more »
serial numbers were not required until 1968, so there goes the historic analogue. there has never been a tradition to have serial numbers on privately made firearms EVER. and the Second Amendment doesn’t say anything about serial numbers.
case dismissed with prejudice.
they were oked by nra but no registry, ……..atf needs to go fbi needs about half or their people jailed for crimes
WHO CARES what any of those cretins and bozos at ANY point in the 100% corrupted legal system may say?? They are all down to a man or woman, incompetent, immaterial and irrelevant due to the crimes they commit on a daily basis!! WHY does anybody have to bow down to criminals of any kind, stripe or color? If anyone wants to know why American society has gone so criminal and psychotic, just look to the legal system where real justice doesn’t matter one little bit, only who has the most power and money behind them! Innocent people go to… Read more »
copy and post this to the hawaii clown court page