Supreme Court Allows Frames & Receivers Enforcement to Proceed

The US Supreme Court has issued a stay, allowing the ATF to continue enforcing the Frames and Receivers Rule despite a Federal District Judge’s ruling that it was unconstitutional. Judge Reed O’Connor vacated the entire rule in July, with injunctive relief ordered for the plaintiffs, Defense Distributed and 80 Percent Arms, and their employees and customers.

The case in question, Vanderstok v. Garland, was then appealed to the 5^th Circuit Court of Appeals, where a 3-judge panel upheld O’Connor’s ruling, denying the stay requested by the government. The government then sought an emergency stay from the Supreme Court, which was granted on a 5-4 vote. Justices Clarence Thomas, Brett Kavanaugh, Samuel Alito, and Neil Gorsuch voted against granting the stay.

The emergency stay was set to expire on October 16, but the government appealed once again, this time securing an extension in an apparent unanimous vote, with no written dissent. This appears to be a big blow to gun rights advocates, who have felt all along that the Vanderstok case was very strong and would ultimately succeed.

But there may be more to this than meets the eye. The ATF will be able to enforce the rule, though they have pledged to not go after Defense Distributed and 80 Percent Arms customers until the case is finally decided, assuming it goes their way. The Supreme Court did not provide any reasoning or explanation for the action, but there’s reason to believe it’s more about the judicial process than the case’s merits. Let’s look at what’s happening behind the headline.

The 5^th Circuit Isn’t Done

As noted, the 5^th Circuit’s 3-judge panel rejected the government’s initial request for a stay on Judge O’Connor’s initial ruling, writing that “the ATF has not demonstrated a strong likelihood of success on the merits, nor irreparable harm in the absence of a stay.” The likelihood of success and showing irreparable harm are necessary components of any action seeking injunctive relief, including a stay on a lower court’s order. The panel’s denial shows they believe the plaintiffs are likely to succeed on the merits of the evidence.

The next step in the government’s formal appeal is for the case to be heard by a full en banc panel of the 5^th Circuit. But without the stay, the ATF would not have been able to enforce the rule while waiting for the en banc hearing. So, the government sought and received an emergency stay from the Supreme Court, which is when they pledged to operate in good faith by not going after the plaintiffs and their customers while the case proceeds.

The case is still with the 3-judge panel as of this writing, but the en banc panel will eventually get to it. We just don’t know when that will be. Courts do things in their own time, and they have certain procedures. They’ll get to it when they get to it.

Why Did the Supreme Court Act as it Did?

It does seem counter-intuitive that the Supreme Court would issue a stay when the 5^th Circuit so strongly denied it. Do the Supreme Court justices know something the 5^th Circuit doesn’t? No, they don’t. And it’s likely that fact which led to the stay.

The judicial system purposely limits access to the Supreme Court. That’s why we have distinct hierarchies in that system. The Supreme Court wants cases to work themselves out as much as possible at the Federal District and Circuit Court levels. Only when cases have seemingly had every possible argument wrung from them at those levels will the Supreme Court consider hearing them. That process provides a mature body of evidence and precedent from which the justices can make their determinations.

We cannot say for certain why the Supreme Court granted, and then extended, the stay on Judge O’Connor’s initial ruling because they didn’t tell us. That’s not unusual because they don’t want to influence lower court proceedings with immature opinions. By “immature,” I mean opinions issued without considering the full body of available evidence, which they clearly have not done. Frankly, I was surprised that four justices voted against the initial stay for that very reason.

But that, along with how the Court has traditionally operated, gives us the clues we need to understand why the stay was granted. We should not take this stay to mean the Supreme Court is siding with the government on the merits of their case, which would be the opposite of how the 5^th Circuit’s 3-judge panel ruled.

Rather, it looks like the high court wants to let the case play out. Also, the Court has a history of deferring to government requests for such actions while cases are still under adjudication. Given that history, a denial would have been an unusual move. A denial could have been seen as affirming the 3-judge panel’s ruling, thus influencing the upcoming en banc hearing. The Supreme Court generally avoids giving such impressions. Granting the stay, and preserving the status quo, is the most neutral action they could take once the government asked for the emergency stay.

So, What Now?

Well, now we wait. ATF has been enforcing the rule since April, though Defense Distributed, 80 Percent Arms, and their employees and customers have been exempted. That should stay the same, especially since the 5^th Circuit wrote that Judge O’Connor could widen his injunction should the ATF break their word. ATF has a history of flirting with the edges of its authority, so that’s an important point. For what it’s worth, 80 Percent Arms announced today that they will continue processing orders, despite the Supreme Court’s stay. Do with that what you will, but they sound pretty confident.

The case will eventually be heard by a 5^th Circuit en banc panel. The prospects are good, based on the 3-judge panel’s comments regarding the case’s merits. No matter how the 5^th Circuit rules, we can expect an appeal to the Supreme Court. And that, perhaps, is the rub. While the justices tend to stay out of lower court proceedings, they are certainly aware of what’s going on. They want the evidence and precedents to be as complete as possible before hearing the case themselves. Issuing and continuing the stay on Judge O’Conor’s original rule is perhaps the best way of achieving that goal, while also protecting the plaintiffs from enforcement as the case moves forward.

Admittedly, it’s not the decision we wanted. But it’s probably not as bad as it seems. What it likely means is that we have to wait for the courts to do their thing, and that takes time. But we already knew that. We won’t cover every detail of this case ad nauseum but we will report on the 5^th Circuit’s decision and anything that moves on to the Supreme Court.