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The Fifth Circuit’s Jurisprudence Is Too Far Right Even For This Supreme Court – Above the Law

(Photo
by:
HUM
Images/Universal
Images
Group
via
Getty
Images)

Pretty
much
everyone
knows

the
jurisprudence

coming
out
of
the
Fifth
Circuit
is

an
outlier

from
the
rest
of
the
federal
judiciary.
So
much
so
that
even
the
right-leaning
Supreme
Court

has
no
problem
overturning
the
circuit.

Like,
on
the
regular.
Whether
it’s
the
lack
of
understanding
of
basic
legal
concepts

like,
you
know,
standing,

or
their

“overly
cramped
view”
of
precedent
,
they’ve
been
overturned
a
lot
recently.

And
reading
the
SCOTUS
tea
leaves
seems
to
indicate
it’ll
happen
again.

Yesterday,
the
Supreme
Court

heard
oral
arguments

in


Garland
v.
VanDerStok
.
The
case
is
about
whether
“ghost
guns,”
that
is,
weapons
that
are
sold
in
kits
to
be
assembled
by
the
purchaser,
are
exempt
from
federal
gun
regulations
requiring
background
checks
when
purchasing
firearms
and
serial
numbers
on
said
firearms.

And
it
sure
looks
like
the
Fifth
Circuit
is
going
to
be
overturned
by
the
Supreme
Court.
Again.

From
jump,
gun
control
advocates
seemed
to
have
the
upper
hand
in
this
particular
case.
As

reported
by

SCOTUSblog:

A
group
of
challengers
that
included
two
individual
gun
owners
and
a
gun-rights
advocacy
group
went
to
federal
court
in
Texas,
seeking
to
block
the
ATF
from
enforcing
the
rule.
U.S.
District
Judge
Reed
O’Connor
agreed
with
them
and
barred
the
agency
from
applying
the
rule
anywhere
in
the
United
States,
and
the
conservative
U.S.
Court
of
Appeals
for
the
5th
Circuit
largely
upheld
that
decision.

But
after
O’Connor
issued
his
order,
the
Biden
administration
came
to
the
Supreme
Court,
asking
the
justices
for
permission
to
enforce
the
rule
while
it
appealed.
By
a
vote
of
5-4,
with
Justices
Clarence
Thomas,
Samuel
Alito,
Neil
Gorsuch,
and
Brett
Kavanaugh
indicating
that
they
would
have
denied
the
request,
the
Supreme
Court
allowed
the
rule
to
remain
in
place.

So
either
Chief
Justice
John
Roberts
or
Justice
Amy
Coney
Barrett
need
to
flip
their
votes
to
uphold
the
Fifth
Circuit
(given
the
history
of
their
votes
on
gun
regulations,
let’s

accurately

assume
the
three
justices
appointed
by
Democrats
are
going
to
be
in
favor
of
the
Biden
administration’s
regulations).
And
that
doesn’t
seem
likely.

Both
Chief
Justice
John
Roberts
and
Justice
Amy
Coney
Barrett,
at
least
one
of
whose
votes
[Peter
Patterson,
attorney
for
the
ghost
gun
manufacturers]
would
likely
need
to
prevail,
appeared
skeptical.
Roberts
was
dubious
about
Patterson’s
suggestion
that
the
sales
of
partially
complete
frames
and
receivers
are
targeted
at
hobbyists
who
want
to
build
their
own
guns.
“I’m
suggesting
that
if
someone
who
goes
through
the
process
of
drilling
the
one
or
two
holes
and
taking
the
plastic
out,
he
really
wouldn’t
think
that
he
has
built
that
gun,”
Roberts
asked,
“would
he?”

And
Barrett
seemed
to
dismiss
the
“critical
machining
operations”
standard
as
“a
little
made
up.”
It
isn’t
derived
from
the
statute,
she
observed.
Instead,
she
suggested,
“it’s
just
sort
of
a
way
of
allowing
for
a
de
minimis
exception,
right?”

And
there
might
even
be
a
sixth
vote
in
favor
of
the
regulations,
as

Ian
Millhiser
at
Vox

notes:

The
biggest
wild
card
in
the
case
is
Justice
Brett
Kavanaugh,
who
revealed
that
he
voted
in
favor
of
ghost
guns
in
2023
because
he
was
concerned
that
a
gun
seller
who
was
ignorant
of
the
law
might
accidentally
sell
an
unregulated
kit
without
realizing
it
was
illegal
to
do
so
and
then
be
charged
with
a
crime.

But,
as
[Solicitor
General
Elizabeth
Prelogar]
told
Kavanaugh,
a
gun
seller
can
only
be
charged
with
a
crime
if
they
“willfully”
sell
a
gun
without
a
serial
number
or
if
they
knowingly
sell
a
gun
without
a
background
check.
So
Kavanaugh’s
fears
appear
unfounded.

Of
course,
even
if
the
Fifth
Circuit
gets
overturned,
it’s
still
carrying
water
for
the
conservative
legal
movement,
pushing
the
Overton
window
further
and
further
to
the
right.




Kathryn Rubino HeadshotKathryn
Rubino
is
a
Senior
Editor
at
Above
the
Law,
host
of

The
Jabot
podcast
,
and
co-host
of

Thinking
Like
A
Lawyer
.
AtL
tipsters
are
the
best,
so
please
connect
with
her.
Feel
free
to
email

her

with
any
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questions,
or
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and
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