Recent U.S. Supreme Court Ruling on ATF Ghost Gun Regulation

The Supreme Court of the United States recently handed down an order in a pending case relating to the ghost gun regulation promulgated in 2022 by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). A Texas federal court invalidated the ATF regulation in June (2023). Shortly afterwards, the Supreme Court granted an emergency request filed by the Biden administration, allowing the regulation to remain in place while the legal challenge plays out in the courts. The Court did not resolve any of the legal issues in the pending case. 

Ghost Guns: The Back Story

The term ghost guns commonly refers to unregistered firearms without serial numbers, often made from kits or parts purchased online or printed by a 3D printer. The lack of serial numbers means ghost guns are untraceable and have no transfer records, which creates problems for law enforcement when a ghost gun is used for criminal activity. The terminology is not used in federal or state laws but has become commonly used and understood in the context of firearms law.

Our previous blog post addressed Nevada’s ghost gun law, adopted in 2020 with an effective date of January 1, 2022, which was ruled unconstitutional by a state court before it went into effect. We subsequently wrote another blog article discussing the AFT ghost gun regulation that went into effect in August 2022, detailing the provisions of the government’s new rules.

In late June 2023, a Texas federal district court invalidated the ATF regulation nationwide in a case filed by two Texas residents wishing to manufacture ghost guns for their personal use, ghost gun retailers, and a gun rights advocacy group. Shortly thereafter, the U.S. Fifth Circuit Court of Appeals declined to implement a hold (stay) on two key provisions in the lower court’s ruling, which meant the lower court ruling remained in effect pending appeal.

The United States Solicitor General then filed an emergency request with the U.S. Supreme Court, asking the Court to issue a stay on the lower court’s ruling. Without an opinion, the Supreme Court granted the stay request on August 8, 2023. The Court’s order effectively revives the ATF regulation and the ghost gun restrictions in it, pending resolution of the ongoing court challenge.

As a result of the Supreme Court order, the ATF regulation remains in effect until the pending appeal of the case in the Fifth Circuit Court of Appeals concludes. By the terms of the order, the stay will extend if a writ of certiorari is filed with the U.S. Supreme Court after the Fifth Circuit rules. The stay will conclude if the writ is denied or, if the writ is granted, until a decision in the case the Supreme Court. In other words, it is unlikely that the case will be resolved anytime soon.

Primary Legal Issue

The ATF ghost gun regulation does not ban the sale of gun kits and components. It requires manufacturers and sellers of components to inscribe serial numbers and conduct background checks, the same requirements that apply to the sale of assembled guns. To accomplish the ghost gun restrictions, the ATF revised the definition of “firearm” in the regulation. By redefining the term, the ATF regulation closed what is characterized as a loophole in federal and state laws that allowed untraceable ghost guns without serial numbers and background checks.

The legal challenge to the law by gun owners, gun rights advocacy groups, and manufacturers of firearm kits and components asserts that the ATF went beyond its authority in federal gun law by redefining the term firearm in the regulation. The Texas federal judge who struck down the regulation agreed that the ATF exceeded its authority by extending the definition of firearms to include ghost gun components and kits.

The Supreme Court decision was only an emergency order that effectively allows the regulation to remain in effect until final resolution of the court case. A written decision and analysis of the law did not accompany the Supreme Court’s order.

Challengers to the ATF regulation also question the government’s basis for the regulation that ghost guns are fueling an increase in crime. The debate on that subject has been ongoing since ghost guns started gathering government and public attention. 

Reason for the ATF Regulation

In promulgating the ghost gun regulation, the federal government claimed that the use of ghost guns has proliferated because of loopholes in federal and state laws. While ghost guns existed primarily in the realm of hobbyists for many years, the government asserts that their use in criminal activity, including organized crime, has increased exponentially in recent years. The ATF cited that increase as the reason for promulgating the regulation to address the untraceable character and lack of a background check requirement that create problems for law enforcement in criminal investigations.

Within the court action and in public discussion, opponents of the ATF regulation question the validity of the data that supports the government’s claim of increased ghost gun use in recent years. That debate is likely to continue, along with the question of the ATF’s statutory authority to adopt the regulation.

Talk With a Las Vegas Firearms Defense Attorney

Las Vegas criminal defense attorney Joseph Gersten represents clients on all federal and state gun charges in Clark County and in other Nevada jurisdictions. As an approved Concealed Firearm Instructor for Nevada and Utah with certification from the National Rifle Association (NRA) in more than nine (9) disciplines, Joe Gersten knows and understands firearms. We welcome you to contact The Gersten Law Firm to schedule a free consultation about ghost guns, firearm offenses, or any other federal or state criminal matter.