SCOTUS ‘Ghost Gun’ Vote Underscores Importance of Vetting Judicial Candidates on Second Amendment

  • “Ghost Guns” Rule Reinstated: The Supreme Court allowed the Biden administration to temporarily reinstate a rule regulating “ghost guns,” with a tight 5-4 vote, signaling division among the justices.

  • Justices’ Surprising Stances: Chief Justice John Roberts & conservative Justice Amy Coney Barrett sided with the court’s liberals, raising eyebrows given their perceived conservative inclinations & past rulings on other key issues.

  • Judicial Ambiguity: Despite the Supreme Court’s decision, there remains uncertainty about where certain justices stand on the Second Amendment. Nominees often avoid specific stances during confirmation hearings, leading to unpredictability in their rulings.

Supreme Court Washington DC USA iStock-Bill Chizek-1149364911.jpg
Ostensible “conservatives” Roberts and Barrett have joined with SCOTUS “progressives” to allow ATF’s rule to stay in effect. (iStock-Bill Chizek-1149364911.jpg)

“The Supreme Court on Tuesday allowed the Biden administration to temporarily reinstate a rule by the Bureau of Alcohol, Tobacco, Firearms, and Explosives regulating ‘ghost guns’ while a challenge to the rule continues in a federal appeals court,’” SCOTUSBlog reports. “The vote was 5-4, with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh indicating that they would have denied the government’s request and allowed the ban on enforcement of the rule to continue.”

“Ghost guns” sounds scarier than “frames and receivers.” And there’s a conflict in the courts, so requirements for manufacturers to mark products with serial numbers and keep records will continue for now.

Per NBC News:

“Manufacturers and sellers have challenged the regulations in court, with two federal judges ruling in favor of the government. But in Texas, Judge Reed O’Connor came to the opposite conclusion in a case brought by Jennifer VanDerStok and Michael Andren, people who own components that they want to use to build guns.”

Today’s SCOTUS vote putting a hold on O’Connor’s block shows a Bruen Second Amendment majority does not necessarily reflect across-the-board solidarity on the separate issue of regulatory authority. And at least one of the votes is no surprise.

“Chief Justice John Roberts and fellow conservative Justice Amy Coney Barrett joined with the court’s three liberals to allow the rule to take effect,” CNN reports. How Roberts and Barrett square the regulatory part of the law with text, history, and tradition test is left unstated. Such requirements and restrictions on the private manufacture and sale of arms were not part of the Founding Era understanding. But that the Chief Justice would disappoint is hardly a jaw-dropper. He’s the judge who, among other betrayals from the bench, notoriously sided with High Court collectivists on Obamacare, and joined with them again to nix the Trump administration from asking about citizenship on the Census.

Barrett has been a lesser-known quantity.

When she was nominated, the major gun groups signaled high hopes, with the National Rifle Association proclaiming, “Judge Barrett’s record demonstrates a steadfast commitment to the fundamental rights enshrined in our Constitution,” Gun Owners of America assessing ““From a Second Amendment perspective, Judge Amy Coney Barrett appears to be a strong choice,” and the Second Amendment Foundation opining ““Judge Barrett is eminently qualified to take a seat on the highest court in the nation.”

Conversely, upon her confirmation, the Big Three gun-grab groups, Everytown,  Giffords, and Brady, gnashed their teeth and wailed that “The Senate … failed us,” that they “broke their own rules and stole this seat by jamming Judge Barrett, a gun rights extremist, onto the Supreme Court at the behest of the NRA and the rest of the gun lobby,” and that Barrett would “jeopardize our health and safety in the middle of a pandemic and gun violence crisis.”

Hysteria: It’s what they do.

Left unknown in the confirmation process is where a candidate stands on the Second Amendment, relegating constituents to take their chances on what could accurately be described as judicial potluck. And that’s by intent.

Typically, in judicial confirmation hearings, nominees have been able to rely on an “out” giving them a pass on answering specific questions. Per Congressional Research Service:

“Usually, when Senators at confirmation hearings have asked Supreme Court nominees to comment on topical legal and constitutional issues, the nominees have firmly declined to do so. In those situations, the nominees typically have taken the position that answers to questions which convey their personal views would conflict with their obligation to avoid appearing to make commitments, or provide signals, as to how they would vote as a Justice on future cases.”

Think of one job you’ve applied for where you’d have gotten it if you decided to play coy with the hiring managers.  While it may be “inappropriate” for a judge to weigh in on a specific case before confirmation — for legitimate reasons, including not having studied and evaluated all the particulars, evidence and precedents against the “supreme Law of the Land,” — there’s no reason why general principles of understanding should be off-limits. Such hearings are supposed to be, among other things, high-level employment interviews, not pre-coronation ceremonies.

For now, Barrett and Roberts have opted to punt, but it still doesn’t tell us how they would vote if the case came back to them. But it may not come to that.

“The Supreme Court, in issuing its ruling, did not address the merits of the case,” Alan Gottlieb of the Second Amendment Foundation noted in an alert. “They only said the stay will remain in effect pending the appeal now before the Fifth Circuit, and disposition of a writ of certiorari, if such a writ is timely sought. Now that the Fifth Circuit can actually rule on the merits of this case, we expect a very favorable ruling.”

About David Codrea:

David Codrea is the winner of multiple journalist awards for investigating/defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. He blogs at “The War on Guns: Notes from the Resistance,” is a regularly featured contributor to Firearms News, and posts on Twitter: @dcodrea and Facebook.

David Codrea