Opinion
The U.S. Supreme Court’s recent decisions to enter stays in the “ghost gun” cases in favor of the Biden Justice Department has some Second Amendment supporters questioning Justice Amy Coney Barrett’s commitment to enforce the constitutional right to bear arms.
To discover whether her position on the right to bear arms has changed for the worse, we should discuss how the Supreme Court works and the judicial philosophies of the conservative justices on it.
The Ghost Gun Cases
Recently, the Second Amendment movement suffered setbacks before the Supreme Court on emergency applications from Merrick Garland’s Department of Justice in the VanDerStok/Blackhawk cases arising from federal courts in Texas. Both cases challenge a new ATF rule, sometimes called the “ghost gun” rule, that regulates the sale of parts of frames and receivers and weapons parts kits.
On August 8, 2023, the U.S. Supreme Court issued a stay of the lower court’s orders vacating (“vacatur”) the Biden administration’s so-called “ghost gun” rules. This had the effect of allowing these regulations to become binding law. The Supreme Court’s order noted that four of the justices would have allowed the district court’s vacatur decision to stand, namely, Justices Thomas, Alito, Gorsuch, and Kavanaugh. Therefore, Chief Justice Roberts and Justice Barrett sided with the liberals to stay the vacatur in favor of the Biden Administration.
On October 16, 2023, the Supreme Court ordered another stay in favor of the Department of Justice against a Fifth Circuit decision to enjoin through a preliminary injunction Biden’s “ghost gun” rules. (NOTE: a vacatur is a different, but similar, remedy to an injunction in that they both prevent or limit an administrative agency’s authority to enforce a regulation). This time, the Supreme Court’s order did not specify which justices agreed with the stay, but, presumably, it would have included Justice Barrett, given her earlier ruling on vacatur.
Maybe It’s Not About the Second Amendment After All
The Supreme Court’s “stay” decisions in the “ghost gun” cases have led some to label Justice Barrett a traitor to the Second Amendment. Now, I have no personal knowledge of Justice Barrett’s thinking here. However, I am highly skeptical of any claim that Justice Barrett will not defend our fundamental rights under the Second Amendment. There are several non-traitorous reasons why Justice Barrett may have allowed the “ghost gun” regulation to remain in effect while the litigations are pending.
Let’s just keep in mind who the jurist, Amy Coney Barrett, is. She was elevated to the U.S. Supreme Court from the Seventh Circuit Court of Appeals largely because of a dissent she wrote in a case called Kanter v. Barr. Kanter addressed whether a nonviolent felon could possess a firearm under the Second Amendment, which has come to be known colloquially as the “Martha Stewart question.”
Then-judge Barrett, in her dissent, explained why nonviolent felons do indeed possess a right to keep and bear arms under the Second Amendment and Heller. When she authored her dissent, her recognition of a distinction between violent and nonviolent felons was arguably a more robust and aggressive pro-Second Amendment stance than what had been articulated then by many of its staunchest supporters.
This caused a great stir in the legal community. Has Justice Barrett gone from being a powerful Second Amendment ally to a squish in such a short period of time? I don’t think so.
Beyond her work as a Seventh Circuit judge, Justice Barrett supported NYSRPA v. Bruen, which upheld the right to carry firearms outside the home. She joined in full Justice Thomas’s excellent majority opinion and wrote a short concurring opinion indicating that the time of the Founding is likely the most relevant time period for interpreting the Second Amendment, which is correct. Again, if Justice Barrett was not a staunch supporter of the Second Amendment, it is unlikely that she would have been such a strong voice in Bruen, which was decided less than two years ago.
Legally, Federal Administrative Procedure Act Cases Are NOT Second Amendment Cases
So, when it comes to the VanDerStok and Blackhawk applications for an emergency stay by the Department of Justice, why did Justice Barrett decide the way she did?
First, Justice Barrett does not decide legal cases in the same way that a left-wing judge does, that is, as a partisan legislator cloaked in a black robe. She does not come to a case with a predetermined outcome in mind, but rather, she wants to hear all the facts and law to decide the case correctly.
In my view, a major factor at play here is the concern that she (and likely the other conservative justices on the Supreme Court) do not want to bless or approve of decisions by the lower federal courts that vacate nationwide laws and regulations. Suppose Justice Barrett voted to allow ATF’s “ghost gun” regulation to remain in effect. In that case, it is likely that she did so to send a message to the lower, “inferior” courts that they cannot strike down federal laws with impunity. If you recall, rogue district court judges plagued President Trump’s administration by, for example, declaring virtually all of his executive actions involving illegal immigrants unconstitutional. Justice Barrett may simply want to clamp down on such activity.
The second thing we need to consider is the so-called “shadow docket.” There are times when emergency applications are made to the Supreme Court, and the Court must decide an issue without the benefit of full briefing and oral argument. Because the Court wants to get the case right, it prefers to have a matter fully litigated, with a final judgment on the merits before it gets involved. This gives the Court the benefit of a complete record before the case even hits its docket. Additionally, if they grant certiorari, they then receive additional briefing from both sides as well as from amici, and with the benefit of oral argument.
In contrast, with an emergency application in a pending case yet to be fully decided by the lower courts, the appeal process to the Supreme Court is expedited and is decided on a much more limited record. The Supreme Court doesn’t like to get involved in such “interlocutory appeals” because rushing decisions increases the risk of erroneous decisions. An erroneous outcome is more likely to occur on an emergency application where the Court doesn’t have the benefit of a complete and final factual record, full-blown legal briefing, and oral argument. As a result, it is not unusual for the government to get the benefit of the doubt. In other words, if there is a question about a challenged regulation and its legitimacy, the Supreme Court tends to defer initially to the executive branch, the head of which swore an oath to uphold the Constitution. Thus, whether it is Donald Trump or Joe Biden in office, the Supreme Court generally defers to the executive in emergency situations.
Whether such institutional deference is warranted is a matter of debate, but it’s our current reality.
Another reason Justice Barrett may have decided to stay the vacatur and injunctions in the Blackhawk/VanDerStok cases is because they involved commercial relationships instead of obvious Second Amendment implications. These cases ultimately address regulations over the sale of frames and receivers or parts thereof. From Justice Barrett’s (and the rest of the Court’s) point of view, the issue in these cases is likely less about the Second Amendment and more about questions of commercial law and the federal Administrative Procedural Act. Under federal administrative law, what regulatory powers does ATF have under its authorizing statutes passed by Congress? Because the Court does not involve itself as much in regulated commercial transaction problems that businesses and government regulators can resolve in the lower courts, it will often defer to the government in the short run and simply allow the case to proceed.
Take Heart, Second Amendment Supporters,
Despite its initial victories in these early innings, the Department of Justice should not take much comfort here. In my view, once these “ghost gun” cases are finalized and then appealed to the Supreme Court in the normal course, the ATF’s regulations may still be declared unlawful. Yes, the delay is frustrating (and perhaps to some companies financially devastating), but if and when these cases are heard on the merits, I am confident that there will be at least five votes against the ATF, including Justice Barrett.
To close, I do not believe that Justice Amy Coney Barrett will abdicate her duties to respect, uphold, and enforce the Second Amendment.
About Mark W Smith
Constitutional attorney and bestselling author Mark W. Smith, host of the Four Boxes Diner Second Amendment channel on Youtube, is a member of the U.S. Supreme Court Bar. His Second Amendment scholarship has been cited by many attorneys and judges, including by attorneys in legal briefs submitted to the Supreme Court in NYSRPA v. Bruen and in U.S. v. Rahimi.
His most recent book is DISARMED: What the Ukraine War Teaches Americans about the Right to Bear Arms.
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