Appeals court says ATF exceeded authority with ‘ghost gun’ rule

A federal appeals court struck down the Biden administration’s limits on so-called ghost guns, affirming a lower court’s ruling Friday that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) didn’t have proper authority to change its rules.

The ATF rule change specified the definitions of “firearm” and other terms in order to regulate the production and distribution of gun parts and kits that could be easily assembled by a consumer at home, avoiding regulation and requirements for serial numbers. 

Judge Kurt Engelhardt led the 5th Circuit in a unanimous decision throwing out the ATF rule.

“The agency rule at issue here flouts clear statutory text and exceeds the legislatively-imposed limits on agency authority in the name of public policy,” he wrote.

“ATF, in promulgating its Final Rule, attempted to take on the mantle of Congress to ‘do something’ with respect to gun control,” he continued. “But it is not the province of an executive agency to write laws for our nation. That vital duty, for better or for worse, lies solely with the legislature.”

The Supreme Court has allowed the ATF rule to stay in place following lower court rulings, and it is likely to do so again after the appeals ruling Friday. The Justice Department is expected to appeal the decision to the Supreme Court for its final determination.

In a concurring opinion, Judge Andrew Oldham said the ATF’s rule could be interpreted to be “limitless.”

“It purports to regulate any piece of metal or plastic that has been machined beyond its primordial state for fear that it might one day be turned into a gun, a gun frame, or a gun receiver,” he wrote. “And it doesn’t stop regulating the metal or plastic until it’s melted back down to ooze.”

The challenge was led by a group of gun rights advocacy groups, firearm manufacturers and dealers in Texas.

President Biden touted the rule as necessary for public safety at its introduction last year.

“If you buy a couch you have to assemble, it’s still a couch. If you order a package like this one over here that includes the parts you need, the directions of assembling a functioning firearm, you bought a gun. Take a look,” Biden said, walking over to a ghost gun kit on a table.

“Anyone can order it in the mail, anyone,” he added. “Folks, a felon, a terrorist, a domestic abuser, can go from a gun kit to a gun in as little as 30 minutes.”

In 2021, there were about 20,000 suspected ghost guns reported to ATF as having been recovered by law enforcement in criminal investigations, a tenfold increase from 2016, according to officials.