A closely-divided Supreme Court stayed an injunction blocking the ATF from enforcing its rule treating unfinished frames and receivers as “firearms” under the Gun Control Act on Tuesday, with four justices dissenting from the decision to allow the rule to be enforced while a lawsuit challenging its constitutionality proceeds to trial.

A brief order was issued by Justice Samuel Alito in the case, noting that he and several other justices would have denied the application requested by the Department of Justice.

Application (23A82) for stay presented to Justice Alito and by him referred to the Court is granted. The June 30, 2023 order and July 5, 2023 judgment of the United States District Court for the Northern District of Texas, case No. 4:22-cv-691, insofar as they vacate the final rule of the Bureau of Alcohol, Tobacco, Firearms and Explosives, 87 Fed. Reg. 24652 (April 26, 2022), are stayed pending the disposition of the appeal in the United States Court of Appeals for the Fifth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought. Should certiorari be denied, this stay shall terminate automatically. In the event certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court. Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would deny the application for stay.

In Bruen we had six justices vote to overturn New York’s “may issue” carry law, but Chief Justice John Roberts and Justice Amy Coney Barrett declined to join their colleagues in keeping the ATF’s rules on frames and receivers on ice.

Correct. No pro-2A (I realize this wasn't a 2A case, but it's at least adjacent) injunction ever seems to survive, even though preliminary injunctions are supposed to be given deference. This time, even a circuit court upholding one was narrowly stayed by SCOTUS.

Frustrating as… https://t.co/WS9R7N75CQ

— Kostas Moros (@MorosKostas) August 8, 2023

As Moros says, this is frustrating as hell, though whether this is an example of undue deference to the federal government or an indication that the Bruen majority is splintering on Second Amendment (or Second Amendment-adjacent) issues is an open question. I can’t help but wonder if Roberts (and possibly ACB as well) is looking to provide some “moderation to the Court’s 2A jurisprudence after Bruen, and allowing the ATF to continue enforcing its rule treating items that might become firearms as if they’re guns themselves is a win for the forces of gun control, even if this isn’t the last word in Vanderstok v. Garland.

So what’s next? Well, the underlying case continues at the Fifth Circuit Court of Appeals, and as Alito’s order indicates, SCOTUS will eventually decide whether or not to hear the case itself and not just the emergency appeal requested by DOJ. With the injunction now stayed, Merrick Garland is facing less pressure to get the case to the Supreme Court as quickly as possible, but hopefully the Fifth Circuit will expedite the lawsuit as much as possible.

This isn’t the only litigation dealing with the ATF’s executive branch overreach either. The Fifth Circuit also recently reversed a district court’s decision to not grant a nationwide injunction against the ATF’s rule on pistol stabilizing braces, sending the case back to the U.S. District Court judge for further review, while “maintaining the preliminary injunction pending appeal” that applied only to the named parties in the lawsuit. Any injunction issued by the trial court and upheld by the Fifth Circuit could go before the Supreme Court in relatively short order, though after today’s decision I’m not particularly confident that SCOTUS would go along with a determination that continuing to enforce the rule would cause irreparable harm to gun owners. In fact, I’m more than a little concerned that the 6-3 majority in Bruen is conflicted on the cases emerging in its aftermath, and a couple of its members are poised to greenlight government infringements and executive branch abuses going forward.

***Update***

The Firearms Policy Coalition has issued a response to today’s order, with FPC’s counsel Cody J. Wisniewski stating that the organization is “deeply disappointed that the Court pressed pause on our defeat of ATF’s rule effectively redefining ‘firearm’ and ‘frame or receiver’ under federal law,” but adding that “[r]egardless of today’s decision, we’re still confident that we will yet again defeat ATF and its unlawful rule at the Fifth Circuit when that Court has the opportunity to review the full merits of our case.”

I certainly hope that’s the case, but in the 13 months since the Bruen decision was handed down SCOTUS has repeatedly declined to halt government overreach directed against gun owners; turning away an emergency appeal of New York’s sweeping “sensitive places” and other recently-imposed restrictions on concealed carry applicants and licensees as well as rejecting an emergency appeal seeking to block Illinois’ ban on so-called assault weapons and large capacity magazines from being enforced. The Court may be taking a “wait and see” approach when it comes to how the lower courts are interpreting Bruen, but considering the scope of the infringements gun owners are facing I’d much prefer a “FAFO” mindset from SCOTUS and our Second Amendment rights.