The ATF’s rule treating unfinished frames and receivers as if they’re fully functional firearms, which was the subject of a sweeping injunction from a U.S. District Court judge, has been partially restored by the Fifth Circuit Court of Appeals, but Merrick Garland and company shouldn’t pop any champagne corks in celebration.
In a decision released on Monday, a three-judge panel on the Fifth Circuit Court of Appeals rejected the government’s request to vacate the district court’s injunction in its entirety, but did “agree with the Government that the district court’s injunction sweeps too broadly.” As a result, the Fifth Circuit panel concluded that non-parties to the lawsuits filed by Tactical Machining, the Firearms Policy Coalition, Second Amendment Foundation, JSD Supply, Polymer 80, and several individual plaintiffs are once again subject to the ATF rule, while those named parties are still protected by the district court injunction.
That’s not great news for the DOJ, but it’s the sole bright spot for anti-gunners in an opinion that casts major doubt about the viability of the “frame and receiver” rule once the Fifth Circuit has a chance to weigh on whether the policy is an abuse of executive branch authority. The panel held that “Injunctions that afford relief to non-parties are potentially problematic,” but even there the Fifth Circuit says its decision is subject to further review based on the government’s actions going forward.
And it appears the district court’s injunction sweeps too broadly insofar as it affords relief to non-party customers. That is particularly true because the Government has been adamant—in both writing and at oral argument on this motion—that it will not enforce the Final Rule against customers who purchase regulated “frames or receivers” and who are otherwise lawfully entitled to purchase firearms. Of course, if circumstances change, the district court is free to narrowly tailor injunctive relief to meet the changed circumstances. But as things stand today, the Government is correct that the injunction cannot extend to non-party customers.
If DOJ goes back on its word and begins prosecuting lawful gun owners simply for purchasing an “unfinished frame or receiver” in violation of the ATF rule, then the Fifth Circuit has given the green light for the district court to once again impose the injunctive relief that was taken away. And the three-judge panel reminded DOJ that when the overall case, not simply the request for an injunction, comes before that court, the government is likely to lose bigly.
The party-plaintiff manufacturers would be irreparably harmed by being forced to shut down their companies or by being arrested pending judicial review of the Final Rule. The party-plaintiff manufacturers are likely to succeed on the merits because the Final Rule is contrary to law. And both the balance of equities and the public interest weigh in favor of allowing orderly judicial review of the Final Rule before anyone shuts down their businesses or sends them to jail.
The panel noted that it’s “sensitive” to the irreparable harm to the government when its rules are enjoined, but declared the “ATF’s desire to change the status quo ante does not outweigh the few additional weeks or months needed to complete judicial review of ATF’s work,” adding that “we cannot say the Government has shown that it is entitled to emergency vacatur of the district court’s injunction as to the two party-plaintiff manufacturers.”
If there was any doubt as to where the Fifth Circuit panel stands, it was removed by the judges’ conclusion.
At the end of the day, we think four things are paramount. First, inferior federal courts must exhibit unflinching obedience to the Supreme Court’s orders. Second, the Court has directed us to be skeptical (if not altogether unwilling) to order universal relief that extends to non-parties. Third, insofar as possible, we should have orderly judicial review in which the status quo is maintained, and the legal rules sorted, without asking courts to make monumental decisions in short-fuse emergency dockets. Fourth and finally, courts should be able to review ATF’s 98-page rule, and the decades of precedent it attempts to change, without the Government putting people in jail or shutting down businesses.
Like I said, while DOJ technically scored a partial win with today’s decision, it’s not anything for Garland, Steve Dettelbach, or Joe Biden to celebrate. The ATF’s “frame and receiver” rule is on life support and living on borrowed time, and the named plaintiffs and parties to Vanderstok v. Garland still have the injunctive relief they’ve been seeking. Obviously, I’d prefer to see the general public granted that same relief as well, but I suspect that will come in time… and if DOJ tries to go after those consumers after assuring the courts that lawful gun owners don’t have to fear prosecution, it shouldn’t be long before the district court steps in once again to set things right.