Because gun control has little or nothing to do with solving problems (other than the “problem” of Americans owning guns), marketing is crucial to its success. And crucial to the success of marketing is devising compelling catch-phrases for products being foisted upon the public. Firearm prohibitionists have succeeded so well at this that their nomenclature is often adopted by Second Amendment advocates themselves. Thus, phrases like “assault weapon,” “gun violence,” “gun show loophole,” “Charleston Loophole, “buyback,” “large capacity magazines,” “smart gun,” and “universal background checks” have come to define the terms of the debate in a way that puts a thumb on the scale for prohibition.
A more recent addition to this list is “ghost gun,” which refers to an unserialized firearm made by someone other than a federal firearm licensee that is therefore said to be “untraceable.” Last week, the U.S. Supreme Court agreed to hear an appeal from the Biden Justice Department that asks the high court to lift a stay on an ATF rule supposedly meant to crack down on “ghost guns.” But the bigger, and oft-ignored, issue in the case is ATF’s attempt to massively expand its authority by reinterpreting the meaning of “firearm” itself.
Our previous reporting explained the basics of the rule. Crucially, it does not actually ban (nor could it, under the Second Amendment) the making of unserialized firearms for one’s own use. What it does do, however, is expand the meaning of what is considered a regulated “firearm” under federal law.
This is a key point, as “firearms” are subject to a wide range of regulations that do not apply to mere gun parts or materials that could, with sufficient effort and know-how, be used to make an operable firearm. Under federal statute, a “firearm” is “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive,” as well as, “the frame or receiver of any such weapon.” The statute does not, however, define “readily … converted” or “frame or receiver.”
The disputed rulemaking is entitled, “Definition of `Frame or Receiver' and Identification of Firearms.“ Among other things, It seeks to move back the line on what counts as a regulated “frame or receiver” so that certain unfinished blanks or castings would be treated under the law as if they were operable firearms themselves. Thus, a piece of metal or plastic that would still have to be machined, filed, drilled, or otherwise altered to be usable as a frame or receiver from which a firearm could be built would attain the legal status of a firearm merely by being, in ATF’s view, “readily convertible” for that purpose. In practical terms, the rule currently sets it sights on so-called 80% receivers or Polymer-80 type kits. Yet ATF clearly wants the authority to determine when and how the line should be moved even further, should the agency determine it is necessary. Somewhere between iron ore and petroleum deposits and a manufactured object lies the invisible line where raw materials become a “firearm.” ATF wants to occupy as much of that space as possible.
The “problem” the rule supposedly seeks to address is that technology has made it easier for individuals to build their own firearms. And building firearms from unregulated parts gives those who are prohibited under the law from having guns another way to obtain them without creating the paper trail associated with licensed manufacturing and sales. Lack of serialization also makes it more difficult to determine where a firearm originally came from if it is recovered at a crime scene.
While in theory those are non-frivolous concerns, it’s important to keep several things in mind.
First, a prohibited person who possesses an operable “ghost gun” is just as guilty of a crime as if they possessed a “mortal” firearm produced and sold through licensed channels of commerce with all the formalities that entails. There is no “loophole” that protects this conduct from being actionable under the law.
Second, there are many ways criminals get around existing laws to illegally obtain and possess firearms. ATF’s recently released “Volume Three of the National Firearms Commerce and Trafficking Assessment” divides these ways into 18 different categories. Personally-made firearms constituted a very small share of the illicit firearms market described in the report. The assessment extracts data from 9,708 ATF firearms trafficking investigations covering the period from 2017 to 2021. Of these, “personal” or “unlicensed” making was identified as a “trafficking channel” in only 253 cases, or about 3% of the total.
Third, while a person can make an unserialized firearm for his or her own personal use under current federal statute, making those guns to sell to others already subjects that person to licensing requirements. Some states, moreover, have enacted stricter laws that essentially seek to ban unserialized, personally-made firearms altogether.
Fourth, while firearm tracing is treated with holy reverence by gun control advocates, it’s not clear how often it’s actually used to solve individual crimes. As we’ve noted, the typical “crime gun” has been in circulation for a number of years and has changed hands a number of times. Identifying the original retail purchaser (which is the point of a federal trace), may well be a time-consuming and labor-intensive dead end, at least from an evidentiary standpoint. On the other hand, gun control advocates prize using “trace data” in making broad (and often inaccurate) generalizations about “crime guns” for their propaganda or even legal efforts. Yet, as ATF itself acknowledges, trace data was not intended, nor is a reliable basis, for these sorts of generalizations.
Fifth, whether or not ATF thinks it is confronting an important problem, its option for addressing it are still limited by the authorities granted to it by duly enacted legislation. Congress, not ATF, determines the scope of ATF’s authorities.
And that, for Second Amendment advocates, is the important issue at stake in the upcoming Supreme Court case. The decision under appeal, VanDerStok v. Garland, was issued by the U.S. Court of Appeals for the Fifth Circuit last November. It held, “The agency rule at issue here flouts clear statutory text and exceeds the legislatively-imposed limits on agency authority in the name of public policy.” More specifically, the court observed: “After almost fifty years of uniform regulation, ATF, via the Final Rule, now purports to expand the terms ‘frame’ and ‘receiver,’ as they were understood in 1968, to include changes in firearms in modern times.” “But,” the court continued, “the meanings of statutes do not change with the times.”
Because the government appealed that decision, the case will be known as Garland v. VanDerStok before the Supreme Court. A key issue for the court will be determining how much discretion ATF has to define statutory terms when their altered meanings could turn conduct long treated as lawful into a crime. The case will be a follow-up to the still undecided Garland v. Cargill, in which the high court will determine whether ATF had the authority to reverse its long-standing position that bump-stocks are not “machineguns” under federal law.
Joe Biden is proving to be the most anti-gun president in American history. Fortunately, Congress has so far resisted his most ambitious plans to diminish the right to keep and bear arms. Thus, Biden has turned to Merrick Garland’s Justice Department and Steven Dettelbach’s ATF to do his onerous bidding and “reinterpret” long-settled meanings of law to crack down on Second Amendment activity. All eyes in the gun debate will now be on the U.S. Supreme Court, as they determine how long a leash the Executive Branch has to make up the law as it goes along.
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