Fifth Circuit Court of Appeals Doubles Down on its Extreme, But Futile, Decision to Invalidate ATF’s Life-Saving Ghost Gun Rule, Everytown Responds

NEW YORK – Yesterday, in another dangerous and misguided decision from the Fifth Circuit Court of Appeals, the court once again issued a decision that —were it not for the Supreme Court’s prior interventions— would strike down portions of the Biden Administration’s life-saving ghost gun rule. The Fifth Circuit’s decision comes after the United States Supreme Court twice reversed the Fifth Circuit’s decisions that would have struck down or undermined the rule. While yesterday’s decision puts the ATF’s life-saving rule in peril once more, the rule will remain in effect at least until the Supreme Court decides whether to hear the case.

In recent years, the Fifth Circuit Court of Appeals has made it a habit to issue extreme and dangerous decisions concerning gun safety. The Supreme Court has already agreed to hear two critical cases stemming from extreme decisions from the Fifth Circuit: United States v. Rahimi, where the Fifth Circuit struck down the federal law prohibiting individuals subject to domestic violence restraining orders from possessing guns, and United States v. Cargill, where the Fifth Circuit ruled to invalidate the ATF’s common sense rule prohibiting the production, sale, and possession of bump stocks, devices that are designed and intended to convert semi-automatic firearms into machine guns. Yesterday’s decision from the Fifth Circuit is just one of countless extreme and reckless decisions from the court that has made it a priority to put the gun lobby’s agenda over the lives of our communities. 

“Once again, the Fifth Circuit has issued an extreme decision that makes it feel like it’s Groundhog Day all over again,” said Nick Suplina, Senior Vice President for Law and Policy at Everytown for Gun Safety. “Ghost guns shoot like guns and kill like guns – only an extremist court could look at these deadly, untraceable weapons and argue they shouldn’t be treated like guns, but that’s exactly what the Fifth Circuit has done, yet again. This isn’t the end of the road – we refuse to stand by while extremist judges cater to the demands of the gun lobby over the resounding call for gun violence prevention from Americans across the country.”

“The ATF’s ghost gun rule is a no brainer: federal law clearly regulates not only finished firearms, but also gun building kits and the key components of firearms that can easily be converted into deadly weapons,” said Eric Tirschwell, Executive Director of Everytown Law. “The Fifth Circuit continues to get this wrong, plain and simple, and their reckless decision would no doubt put our communities in danger if allowed to stand. We are grateful to the Biden Administration for their continued work to protect this life-saving rule and we are confident that the Administration will prevail when this case again reaches the Supreme Court.”

The ATF’s rule, which was finalized in April last year and took effect last August, confirms that ghost guns are to be treated like the deadly firearms they are. ATF’s rule updated and clarified key definitions, including “firearm,” “frame,” and “receiver” to ensure that kits and components that are easily assembled into untraceable ghost guns are subject to the same regulations as firearms. 

Following an extreme decision by a federal judge in the Northern District of Texas to block the ATF’s rule, the Fifth Circuit, without any meaningful explanation, declined to put the lower court’s order on hold, prompting the Supreme Court to intervene. In August, the Supreme Court decided to overrule the Texas court’s decision, allowing the rule to stay in effect until it issued a decision on whether to take up the case for a full decision. Flouting the Supreme Court’s order, the same federal judge in the Northern District of Texas again blocked ATF from enforcing the rule against two ghost gun distributors. The Fifth Circuit then affirmed the decision to block ATF enforcement against the two distributors. In requesting the Supreme Court to step in, the U.S. Solicitor General characterized the lower courts’ decisions as “extraordinary and unprecedented.” The Supreme Court then unanimously ruled to reverse the Fifth Circuit’s decision. 

The Washington Post recently reported on how American teenagers can, with ease, acquire the parts for ghost guns, often leading to deadly outcomes. Everytown Law recently filed a suit in Virginia on behalf of the estates of two 17-year-old Virginians who were shot and killed by an 18-year-old classmate using an unserialized, self-assembled ghost gun purchased from ghost gun seller 80P Builder. 

ATF estimates that more than 45,000 ghost guns have been recovered by law enforcement between 2016 and 2021, and local law enforcement agencies are seeing staggering increases in rates of recovery — rising as much as 100 percent in the last three years in places like San Diego and Los Angeles. Other communities have seen significant ghost gun recoveries, with sharp increases in the past year. In 2022, ATF recovered 25,785 ghost guns in domestic seizures, as well as 2,453 through international operations. So far in 2023, the Department has recovered more than 10,000 privately made firearms (PMF’s) domestically and 1,000 internationally. According to the LAPD, the department recovered 1,921 ghost guns in 2021, more than double the 813 ghost guns recovered in 2020. In Philadelphia, the police reported recovering 571 ghost guns, compared to 95 in 2019 and 250 in 2020. Ghost guns have also been weapons of choice for militant right-wing extremists and people who otherwise would not be able to pass a background check. In recent months, the country has also seen an increase of gun fire on school grounds with ghost guns and recoveries of ghost guns on campuses. Schools in Arizona, New Mexico, Maryland, and Kansas have been devastated with these instances of gun fire on school grounds – highlighting a scary trend and another important reason to regulate these guns. 

Everytown has compiled examples of ghost gun shootings from across the country since 2013, available here. Everytown’s report on ghost guns, featuring testimonials from law enforcement officers, can be found here.