On May 7, 2021, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), announced a notice of proposed rulemaking that would make significant strides in ending the proliferation of ghost guns by regulating their core building blocks—ensuring they are traceable and that licensed dealers conduct a background check before their sale.1Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, “Definition of ‘Frame or Receiver’ and Identification of Firearms,” May 7, 2021, https://www.atf.gov/rules-and-regulations/definition-frame-or-receiver. The proposal is part of the recent slate of lifesaving executive actions announced by President Joe Biden to address the nation’s gun violence crisis.
Ghost guns are do-it-yourself guns made from readily available, unregulated building blocks.
- Ghost guns are very easy to make: their core building blocks can be bought online or at a gun show and are designed and marketed to be easily converted into a fully functional firearm with little skill.
- Ghost guns have emerged as a weapon of choice for violent criminals, gun traffickers, dangerous extremists, and other people legally prohibited from buying firearms. The under-regulation of these core parts has made ghost guns the fastest growing gun safety problem facing our country.
The proposed rule corrects ATF’s previous flawed interpretation of federal law which allowed gun traffickers and prohibited purchasers to make untraceable and unregulated firearms.
- Under federal law, the definition of “firearm” includes both operable weapons and the core building block of a weapon—the frame of a handgun or the receiver of a long gun. The law also covers partially complete weapons that can readily be converted into an operable firearm or an operable frame or receiver.
- ATF had previously taken the position that certain frames and receivers do not qualify as firearms, even if they only require a minimal amount of drilling or milling to “finish” them.
- The proposed rule would cure this flawed interpretation by clarifying that partially complete frames and receivers are firearms if they are designed to be part a functioning firearm, or could easily be turned into one.
- The proposed rule clarifies that all-in-one ghost gun kits are considered “firearms” and it codifies a list of factors that courts have used to determine if a core building block may be “readily” converted into an operable firearm, ensuring that the partially complete frames and receivers, such as 80% receivers, that have fueled the market for illegal ghost guns are regulated as firearms under federal law.
Under the proposed rule, ghost gun parts manufacturers and dealers who are engaged in the business of selling those parts would need to be federally licensed, the core building blocks marked with serial numbers, and purchasers would have to pass a background check before buying a ghost gun or the core building blocks of a ghost gun from a licensed dealer.
- The proposed rule does not exempt from regulation all existing ghost guns, but it doesn’t require individuals to serialize their privately made firearms either. Rather, it provides a serialization process to be conducted through licensed dealers so that existing untraceable ghost guns will become traceable firearms any time they pass through a dealer’s hands.
The call for action on ghost guns has grown significantly in the past couple years.
- Everytown first urged ATF to address the growing threat of unregulated ghost guns in a petition for rulemaking filed back in December 2019, and followed up with a lawsuit against ATF filed in August 2020.
- Everytown Law partnered with the Los Angeles City Attorney to file a lawsuit against ghost gun manufacturer Polymer80 in February 2021.
- In March, 2021, 18 states Attorneys General sent a letter to U.S. Attorney General Merrick Garland calling on him to expedite ATF’s rulemaking on ghost guns.
There are a few required steps before the proposed rule is finalized.
- The proposed rule marks the first step in the regulatory process. The public has 90 days to submit comments on the proposal, which ATF is required to respond to.
- Then ATF must receive approval from the Office of Information and Regulatory Affairs (OIRA)—a process ATF started when it sent OIRA a draft of the proposal rule in mid-April. OIRA examines whether an agency has adequately considered the costs and benefits of a rulemaking.
- Once those steps have been completed, the rule can be finalized and an effective date for compliance with the terms rule will be set.