Courts

The Fifth Circuit's Jurisprudence Is Too Far Right Even For This Supreme Court

SCOTUS predictions say the Fifth Circuit will be overturned in ghost guns case.

By  
on
ghost gun Reportage: President Joe Biden delivers remarks at an event to announce new rules on manufacturing “ghost guns”, Monday, April 11, 2022, in the Rose Garden of the White House

(Photo by: HUM Images/Universal Images Group via Getty Images)

Pretty much everyone knows the jurisprudence coming out of the Fifth Circuit is an outlier from the rest of the federal judiciary. So much so that even the right-leaning Supreme Court has no problem overturning the circuit. Like, on the regular. Whether it’s the lack of understanding of basic legal concepts like, you know, standing, or their “overly cramped view” of precedent, they’ve been overturned a lot recently.

And reading the SCOTUS tea leaves seems to indicate it’ll happen again.

Yesterday, the Supreme Court heard oral arguments in Garland v. VanDerStok. The case is about whether “ghost guns,” that is, weapons that are sold in kits to be assembled by the purchaser, are exempt from federal gun regulations requiring background checks when purchasing firearms and serial numbers on said firearms.

And it sure looks like the Fifth Circuit is going to be overturned by the Supreme Court. Again.

From jump, gun control advocates seemed to have the upper hand in this particular case. As reported by SCOTUSblog:

A group of challengers that included two individual gun owners and a gun-rights advocacy group went to federal court in Texas, seeking to block the ATF from enforcing the rule. U.S. District Judge Reed O’Connor agreed with them and barred the agency from applying the rule anywhere in the United States, and the conservative U.S. Court of Appeals for the 5th Circuit largely upheld that decision.

But after O’Connor issued his order, the Biden administration came to the Supreme Court, asking the justices for permission to enforce the rule while it appealed. By a vote of 5-4, with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh indicating that they would have denied the request, the Supreme Court allowed the rule to remain in place.

Sponsored

So either Chief Justice John Roberts or Justice Amy Coney Barrett need to flip their votes to uphold the Fifth Circuit (given the history of their votes on gun regulations, let’s — accurately — assume the three justices appointed by Democrats are going to be in favor of the Biden administration’s regulations). And that doesn’t seem likely.

Both Chief Justice John Roberts and Justice Amy Coney Barrett, at least one of whose votes [Peter Patterson, attorney for the ghost gun manufacturers] would likely need to prevail, appeared skeptical. Roberts was dubious about Patterson’s suggestion that the sales of partially complete frames and receivers are targeted at hobbyists who want to build their own guns. “I’m suggesting that if someone who goes through the process of drilling the one or two holes and taking the plastic out, he really wouldn’t think that he has built that gun,” Roberts asked, “would he?”

And Barrett seemed to dismiss the “critical machining operations” standard as “a little made up.” It isn’t derived from the statute, she observed. Instead, she suggested, “it’s just sort of a way of allowing for a de minimis exception, right?”

And there might even be a sixth vote in favor of the regulations, as Ian Millhiser at Vox notes:

The biggest wild card in the case is Justice Brett Kavanaugh, who revealed that he voted in favor of ghost guns in 2023 because he was concerned that a gun seller who was ignorant of the law might accidentally sell an unregulated kit without realizing it was illegal to do so and then be charged with a crime.

But, as [Solicitor General Elizabeth Prelogar] told Kavanaugh, a gun seller can only be charged with a crime if they “willfully” sell a gun without a serial number or if they knowingly sell a gun without a background check. So Kavanaugh’s fears appear unfounded.

Of course, even if the Fifth Circuit gets overturned, it’s still carrying water for the conservative legal movement, pushing the Overton window further and further to the right.

Sponsored

Kathryn Rubino HeadshotKathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].

Topics

, , ,