Updated September 1, 2023.
“Ghost Guns” and Biden’s Attack on an American Tradition
Guns that appear and disappear without a trace—sounds scary, right? Anti-gun advocates and politicians call them “ghost guns,” but these firearms are just the modern version of a proud tradition of American individualism. The terms “ghost gun” and “untraceable firearm” are simply more of the alarmist rhetoric surrounding guns we have come to expect from the anti-Second Amendment crowd. However, what has changed is an executive branch that now may have both the desire and the political clout to impose its will on gun owners. In the past, while the ghost gun has drawn the public’s attention, it has shown to be difficult for the government to regulate, despite numerous attempts. Why are ghost guns such a high-priority target? Why do we need to protect our ability to legally build these firearms?
What is a “Ghost Gun?”
First the basics: what is a ghost gun? The term is thrown around regularly by politicians, but it is not defined in federal law. Colloquially, it refers to firearms built from parts without serial numbers (which are required on firearms made by licensed manufacturers). The argument goes that the availability of the parts allow prohibited persons to easily bypass the National Instant Criminal Background Check System (“NICS”) and obtain firearms. The fear is a homemade firearm could be used in a crime and the police could not trace its origin if collected as evidence.
ATF’s Rule Change
On Friday, May 7th, 2021, the United States Bureau of Alcohol, Tobacco, Firearms and Explosives (the unelected “ATF”) issued a notice of proposed rulemaking to change several definitions that are found in the Code of Federal Regulations. This notice stated the ATF’s intent to update the terms “frame” and “receiver” as well as the terms contained in those definitions. The ATF seems to believe the present definitions are restrictively narrow and are attempting to cover more components. The main argument for regulating unserialized parts is the inability to track. Anyone with a router and jig can machine a personal use AR-15 lower receiver from an 80% lower. This could possibly include someone who would ordinarily fail a background check when purchasing a firearm from a licensed gun dealer. The ATF cites crime statistics, claiming the proliferation of 80% lowers has led to more untraceable firearms in the hands of criminals. The implication is that requiring serial numbers of 80% lowers would somehow prevent crime.
The Timeline for Change
On April 11, 2022, the Attorney General signed ATF final rule 2021R-05F, Definition of “Frame or Receiver” and Identification of Firearms. The rule went into effect August 24, 2022, 120 days from the date of publication in the Federal Register.
Typically, a firearm is built at home with unserialized components like 80% lowers and 3D printed frames. Recently, in an effort to make building a firearm a more turn-key operation, some companies have offered “buy build shoot” kits for sale. These kits contain all the parts and instructions to build a firearm but are not actually regulated as firearms themselves. However, the ATF seeks to change this by adding the following sentence to the definition of “firearm” in 27 CFR 478.11:
“[t]he term shall include a weapon parts kit that is designed to or may readily be assembled, completed, converted, or restored to expel a projectile by the action of an explosive.”
Further, the ATF believes that the terms “frame or receiver” have been too narrowly interpreted by the courts. As understood, the definition currently is treated as a housing for three components: the hammer, the bolt or breechblock, and the firing mechanism. The ATF argues changes in technology and manufacturing have created many frames or receivers that technically do not meet this definition. Therefore, the ATF is proposing a new definition to more broadly describe a “frame or receiver” as a part that provides housing or structure designed to hold or integrate any fire control component. Integral to this new regulatory definition is the use of the broad term “fire control component,” which includes,
“any housing or holding structure for a hammer, bolt, bolt carrier, breechblock, cylinder, trigger mechanism, firing pin, striker, or slide rails; but is not limited to those particular fire control components.”
In fact, the new definition specifically contemplates there will be future changes in firearm parts technology and terminology that will be preemptively covered. For example, under the new definition, in a split or multi-part receiver such as the AR-15, both the lower and the upper parts would be classified as a “firearm.”
Casting a Wide Net
When it comes to the popular 80% lower, the ATF proposes that the definition of “frame or receiver” should include:
“in the case of a frame or receiver that is partially complete, disassembled, or inoperable, a frame or receiver that has reached a stage in manufacture where it may readily be completed, assembled, converted, or restored to a functional state.”
To determine this status, the rule reads, “the Director may consider any available instructions, guides, templates, jigs, equipment, tools, or marketing materials.” Further, the words “partially complete” would include:
“a forging, casting, printing, extrusion, machined body, or similar article that has reached a stage in manufacture where it is clearly identifiable as an unfinished component part of a weapon.”
In order to ascertain when a chunk of metal has reached a state of “readily,” the following factors will be considered: time, i.e., how long it takes to finish the process; ease, i.e., how difficult it is to do so; expertise, i.e., what knowledge and skills are required; equipment, i.e., what tools are required; availability, i.e., whether additional parts are required, and how easily they can be obtained; expense, i.e., how much it costs; scope, i.e., the extent to which the subject of the process must be changed to finish it; and feasibility, i.e., whether the process would damage or destroy the subject of the process, or cause it to malfunction. Therefore, if these new definitions become law, will there now be a clearly drawn line for the purposes of stating when a metal blank or billet becomes a firearm? Probably not, and it appears violations of law will be made on a case-by-case basis.
Compared to the Current Law
Under current law, can an unlicensed individual legally build their own ghost gun? Yes. One of the magnificent facets of our American history is that traditionally, citizens have always been able to lawfully build firearms for their own use. While some states have regulated the at-home manufacture of a firearm, in Texas, this right not only exists but thrives. Would the rule make ghost guns illegal to build at home? Interestingly, no. Although the rule targets ghost guns, one of the most important lines in the over 100-page rule is tucked away on page 21:
“However, nothing in this rule would restrict persons not otherwise prohibited from possessing firearms from making their own firearms at home without markings solely for personal use[.]”
The ATF proposes to describe these guns more accurately as privately made firearms (“PMFs”), and they are subject to regulation if they find their way into the hands of an FFL. If this, or a similar clause, is included in the final rule, it would protect our individual freedoms. However, it seems the impact the new regulations would have on a PMF would be to make it difficult for an individual to create a firearm without using regulated, serialized parts.
Where Does it End?
It is very challenging to regulate the process of building a firearm. Once the government requires a serial number to be placed on 80% lowers, what is to stop a company from providing materials and instructions on how to build a gun at home from a 50% lower? If the ATF then requires a serial number on 50% lowers, where does it stop? Americans do not want to give up our autonomy. We do not want to forfeit our individual rights for a regulation that is unlikely to achieve its intended purpose—”crime reduction.” The ATF has taken note and wisely included the personal use exception stated above. But rest assured, these parts will be much more expensive if this rule becomes final, and criminals will likely find a way around the regulation—perhaps by using a 3D printer to manufacture a receiver. Will the ATF then try to regulate 3D printers or the polymer material that they use? Although the ATF and the anti-gun advocates claim new laws and regulations will “keep America safe,” realistically, legal gun owners keep themselves—and their communities—safe.
What You Need to Know
For now, it appears this rule is a mixed bag for gun owners. On one hand, it creates more restrictions on parts manufacturers, and on the other, it specifically states the law will continue to protect the individual freedom to privately manufacture a firearm for personal use. It is no secret the Biden administration has an anti-gun agenda with many high-priority targets such as ghost guns, 80% lowers, expanded background checks, and pistol braces. The current status of these planned executive or administrative actions remains unclear. The lawyers of Walker and Taylor, PLLC will continue to keep our eyes on Second Amendment rights, so check back with us any time the news reports on the latest attempts to curtail our freedoms.
Author: Richard D. Hayes II
DISCLAIMER: The information on this website does not contain legal advice or create an attorney-client relationship. Every case is different, and this material is not a substitute for, and does not replace the advice or representation of, a licensed attorney.