Joe Biden Angry
(AP Photo/Carolyn Kaster)

Another defeat for Biden’s war on guns always gets the week off to a good start. On July 1, a Federal District Judge threw out the ATF’s “frame and receiver” that bans so-called ghost guns. The ATF asked the Fifth Circuit to stay the District Judge’s order, allowing them to enforce the ban while the case is being decided. Today, the Fifth Circuit told the ATF to pound sand.

You can read today’s ruling here, but in a nutshell, the court ruled that . . .

Because the ATF has not demonstrated a strong likelihood of success on the merits, nor irreparable harm in the absence of a stay, we DENY the government’s request to stay the vacatur of the two challenged portions of the Rule. “[V]acatur . . . reestablish[es] the status quo ante,” Defense Distributed v. Platkin, 55 F.4th 486, 491 (5th Cir. 2022), which is the world before the Rule became effective. This effectively maintains, pending appeal, the status quo that existed for 54 years from 1968 to 2022.

While the ATF is likely to appeal further, the Firearms Policy Coalition couldn’t be happier. Here’s their announcement of the win . . .

Today, Firearms Policy Coalition (FPC) and FPC Action Foundation (FPCAF) announced that the Fifth Circuit Court of Appeals has denied the federal government’s attempt to completely stay the district court’s decision in VanDerStok v. Garland, which vacated ATF’s unlawful “frame or receiver” rule. This decision, which the Fifth Circuit stayed for 10 days, prevents ATF from enforcing the rule’s “regulatory definitions of ‘frame or receiver’ and ‘firearm’ as applied to the Gun Control Act of 1968,” while allowing the (non-challenged) remainder of the rule to be enforced while ATF appeals the district court Order. The Fifth Circuit’s Order can be viewed at FPCLegal.org.

“Because the ATF has not demonstrated a strong likelihood of success on the merits, nor irreparable harm in the absence of a stay, we DENY the government’s request to stay the vacatur of the two challenged portions of the Rule,” stated the Court in its order. “‘[V]acatur . . . reestablish[es] the status quo ante,’… which is the world before the Rule became effective. This effectively maintains, pending appeal, the status quo that existed for 54 years from 1968 to 2022.”

“We’re elated that the Fifth Circuit has seen through ATF’s unpersuasive arguments and has determined that ATF failed to show it is likely to win on appeal,” said Cody J. Wisniewski, FPCAF’s Senior Attorney of Constitutional Litigation and FPC’s counsel in this case. “ATF lost at the district court and has now lost its first bite at the Fifth Circuit; we look forward to continuing to win against ATF’s unlawful and unconstitutional gun control regime.”

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

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57 COMMENTS

  2. I have faith that my Good President Joseph Robinett Biden will be able to remove these judges that protect Americans freedoms.

    • Something tells me they will dig up a Leftist/Fascist judge sympathetic to their position.

      The BBW vocalist ain’t sung yet… 🙁

      • Gonna be hard for them to do that. The Fifth Circuit (where the case is now) has a comfortable conservative majority. From there, only SCOTUS is left, and they are pretty clearly steering toward overturning Chevron.

        • “…and they are pretty clearly steering toward overturning Chevron.”

          Crossing fingers, toes, and testicles that comes to pass… 😉

  4. While I am not ungrateful for this ruling (the logic is obvious to anyone but a complete moron, MajorLiar, or dacian the demented – ah, but I repeat myself), in the “grand scheme of things”, I am more focused on where SCOTUS is likely to end up on the execrable Chevron doctring. That would kill not just THIS unconstitutional agency lawmaking by BATFE, it would compel them to at least PRETEND to be carrying out Congressional mandates.

    On the gripping hand, any victory over those jackibooted, gun-grabbing morons is to be celebrated.

    • Chevron deference is a dead doctrine walking. The writing is on the wall. SCOTUS will kill it next term.

      • “Chevron deference is a dead doctrine walking. The writing is on the wall. SCOTUS will kill it next term.”

        I think you are correct, they did seem to be moving that direction.

        I’m not sure why it is so hard to understand that laws are suppose to be constitutional. For constitutional rights cases, for years the anti-gun built and practiced their own ‘self serving law’ within the ‘legal’ system with chevron deference and interest balancing, not only for the second amendment rights cases but for others as well, for example, California trying to suppress the first amendment for the firearms industry. They even taught it in law schools that way. The more they taught and used and practiced it the farther we moved away from the underlying question and issue of “is it constitutional?” and that is simply not how its suppose to work or how it was ever envisioned to work in the constitution or by our country founders.

        For cripes sake, its not difficult to see what happens when a government can determine that inherent unalienable rights are ‘privileges’ subject to their control.

        I’ve seen writings by left wing liberals for first amendment complain about government actions having to do with the first amendment write “don’t take my first amendment rights” while at the same time in other writings scream “suppress the first amendment for the firearms industry or others expressing interest in guns.” — its the same thing, first amendment, its not guns like they think but its also their rights that has been subjected to government control. Once a government can set a precedent that it can ‘censor’ speech it doesn’t like then that can be applied to speech by anyone and not just for guns. Its no different for the second amendment or any other constitutional right, once government can set a precedent of control over any constitutional right by dictating ‘its in the interest of public safety’ or ‘this is our definition and its whats going to be used’ it basically becomes ‘boilerplate’ and from there its simply some word changes to make it apply to any other right they don’t like being used.

        For a constitutional rights case, anytime a government can go into a court and basically go ‘its in the interest of public safety’ or ‘this is our definition and its what the court should use’ and win with that there is something wrong and a ruling favoring the state is probably not constitutional.

        • Remember, however, that the “frame or receiver” case at bar is NOT a 2A case at all. It’s an Administrative Practices Act case (i.e., we’re the regs properly promulgated and do they conform with the underlying statute). Same with the bump stock case (fed’s cert petition now pending at SCOTUS).

          Both these cases implicate Chevron deference (i.e., courts must defer to agency interpretations of statutes). If you really want to read up on this, Prof. Phil Hamburger (who has been leading the academic charge that argues that Chevron deference and most of the other bases of the modern administrative state are utterly unconstitutional — arguments that SCOTUS has never addressed) has just filed a superb amicus brief on the subject:

          https://nclalegal.org/wp-content/uploads/2023/07/22-451-Amicus-NCLA-Supp.-Pet.pdf

          If Chevron deference gets nuked, it will be a seismic shift in the law, with far more impact on our daily lives that Bruen, Dobbs, or any other case in the last decade or two.

        • “Remember, however, that the “frame or receiver” case at bar is NOT a 2A case at all. It’s an Administrative Practices Act case…”

          This particular case, yes. It could be argued to be a 2A case as well, no?

          Home-building firearms was here at the very beginning, with zero registration requirements of any sort.

          I’d kinda be interested in finding out how much those imported lockworks would cost a working man, back then. A month’s wage, more?

        • Thanks for the link. That brief is an excellent read. From the Interest statement:

          “Although Americans still enjoy the shell of their Republic, there has developed within it a very different sort of government—a type, in fact, that the Constitution was designed to prevent.”

          It is refreshing to witness the turning of the tide.

        • Nero:

          Phil Hamburger may go down as the most influential legal scholar of his generation. Like Sandy Levinson’s seminal 1989 Yale Law Review article that pretty much forced constitutional scholars to take Second Amendment arguments seriously for the first time in decades, Hamburger’s attacks on the legality of the modern administrative state have forced even his opponents to admit he has many very, very valid points.

          He’s asking SCOTUS very hard questions that it likely never even thought about when it created Chevron deference out of thin air. (Nino Scalia’s support of Chevron deference has to have been biggest mistake.) Here’s hoping they can get to five on the case.

  5. No doubt that in the next 18 months dear Joe will be issuing a pardon to his drug infested son to cover any remaining legal issues on that front.

  6. I’ve set up a recurring monthly donation to FPC. I suggest you do the same. They are the most aggressive and successful civil rights organization operating today. Support them.

    • But all of my spending cash goes to the Shriners Hospital, St Judes, the ASPCA, Wounded Warrior project, DAV … anyone who only asks for $19 per month.

      • “Wounded Warrior project”

        Does that organization provide direct services, or, like United Way, provide funding for other organizations that do the actual work of Wounded Warriors?

        • I don’t know how much good they do, but they have refused money from things like gun raffles or charity matches by third parties because they feel being associated with gun owners like that will imperil their ability to raise the most funds.

          So….

        • Sam, I dunno. I’m bombarded with the commercials every day and I thought if I subscribed to a few, the ads would stop. They haven’t.

        • seven years ago wounded warriors top execs were fired in the exact same way that whine la pewpew was not. lavish misappropriations of funds.
          they may be back on track now…

      • shrine is near and dear. check out their daily (free children’s) hospital budget. amazing. i admit the onion money goes towards frivolity, but they raise it elsewhere.

    • Cody and the FPC definitely know how to pick and run test cases to get **results** — not just to provide rationales for fleecing donors.

      (Yeah, Wayne, I’m talking bout you!)

      • I hope they check under their cars/trucks before starting them. considering who they are dealing with, I wouldn’t put it past them to try and permanently silence them… 🙁

  7. It would be nice if the 80% pistol frame manufacturers would be encouraged enough to really ramp up production back to pre-ban levels. I’d like to crank out a few more 1911 based pistols in more styles than what you can normally find now. At least find easier/cheaper.

  8. this is great news
    but wake me up
    when the same thing happens
    to the bumpstock ban
    and the pistol brace ban

  10. Carolyn Kaster’s AP photo of My President is in bad taste. He had not had a bowl movement in several days and the ExLax and ice cream finally kicked in. Perhaps she did not know of this problem and if she did she should be executed for taking that photograph.
    The press should not be allowed to make mockery of Mister Biden, the Greatest President America has or ever will have.
    JRB in 2024.

  13. @raz-0
    “I don’t know how much good they do, but they have refused money from things like gun raffles or charity matches by third parties…”

    Rather figured WWP wasn’t a pro-gun organization. From the TV ads, people lauding WWP for “being there”, as if providing direct services, rather than being a fund raiser for actual service providers.

  14. There needs to be a constitutional review in the rule making or something to discourage blatant unconstitutional violations. Unfortunately the process now is write whatever rules they like, and kick everything down the road until someone possibly has enough money to challenge them and many them stop. It’s a waste of time and money, and of course meanwhile businesses and people have to either try to comply or risk regulatory agency wrath (arrest, prison, even death by ATF raid) while they wait for the courts to sort it out.

    Meanwhile the politicians get to claim their victory and move on with nothing to pay, and the agency gets no real harm either. DOJ doesn’t seem to suffer any harm when they are unjust and don’t head the law.

  15. @tsbhoa.p.jr
    “seven years ago wounded warriors top execs were fired in the exact same way that whine la pewpew was not. lavish misappropriations of funds.
    they may be back on track now…”

    That’s not good.

    • LOL doubt it but keep going with your fantasy. Ghost guns are here to stay even if they get banned.

      • Just a heads up but the ATF monitors radical right wing websites and then watches guys like you when you make such posts.

        • I know and they know exactly why that is pointless when they have looked into what I do. Now you on the other hand are a prime candidate for all kinds of psych holds so feel lucky you are in Ohio where you are of no use to the NY system.

        • well look at that, dacians feeble attempt to bully and cancel like a good little left wing communist nazi.

        • Well he doesn’t have facts or even made up facts on his side so needed to go with something. Plus if ATF starts going after people for reasonable assessments of the situation we will run out of jail cells long before they get to me.

    • The ATF appeal has already been denied. They can only appeal the parts that were not stuck down to the fifth circuit and that appeal at the fifth was denied, now they have left the remaining of the 10 days to appeal the vacating parts (to the same fifth circuit that just struck down the other stuff) and those are inconsequential to anything at all really. If they appeal from there, its likely to also be struck down completely, and again, look carefully at it – it was not stuck down on constitutional grounds, it was struck down based upon the law as written, its very obvious the GCA did not give them authority to do this and they manufactured their rule out of thin air with no legal basis at all. The GCA simply does not give them the authority to do this and does not contain what they said it does, anyone who can read can see that (and obviously you can’t read dacian). This and a whole lot more is going to end up getting stuck down, so get used to it daican.

      • .40 cal:

        Your appellate analysis is slightly inaccurate.

        The **appeal** has not been denied. The motion to STAY the order vacating the two regs **pending** appeal is what was just denied. (The court entered a 10 day administrative stay to allow the feds to file a motion with SCOTUS for a stay pending appeal. Rotsa ruck with that one.)

        The Fifth Circuit appeal will be handled on an expedited basis. While I don’t expect the Fifth Circuit to reverse on anything other than the overbreadth issue detailed in the order denying the stay motion, the Fifth Circuit hasn’t been heard or decided the appeal yet.

        But you are 100% correct that Dacian knows even less about law and appellate procedure than he knows about guns (if indeed that is possible). The requirements of the APA and normal canons of statutory construction (to say nothing of routine appellate procedures) aren’t superseded or optional because someone thinks “but there’s a huge problem!”

        If there’s actually a “huge problem,” get Congress to change the law. If it won’t or doesn’t, tough luck.

        • but anyway…. I’m thinking the ATF is basically done for on this matter after having been basically stripped of power to regulate by rule making and its not likely the 5th is going to reverse their own decision on this.

          but anyway…maybe SCOTUS but good luck with that ATF.

          ATF Stripped of Power To Regulate & Control Under The NFA & GCA With Rules!

          https://www.youtube.com/watch?v=HvRGlG62XNc

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