This week, the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) finalized a rule tweaking a number of firearm-related regulatory definitions. The rule targets legitimate problems, including that privately made “ghost guns” have played an increasing role in gun crime lately. It also draws attention to how vague the federal laws in this area are, giving presidential administrations great discretion to rewrite the rules as they see fit.
When a business makes or sells a firearm, all typical gun laws apply. The business must have a license, for example, and put serial numbers on its guns (to make tracing possible) and run background checks on buyers.
By contrast, individuals are legally free to make firearms at home for their personal use, and are not required to include serial numbers. In terms of the materials they need, most gun parts are easy enough to buy on their own, but the law treats the “frame or receiver” of a weapon the same as the weapon itself. That term isn’t defined in the law, but the ATF has let these parts be sold in an incomplete state to avoid the background-check and serial-number laws. The colloquial term is “80 percent receiver”: it’s just about finished, but still needs some time in the workshop to be functional.
Two major issues with this system have reared their heads lately. First, while it’s never exactly been difficult for American criminals to acquire guns—thanks to a black market drowning in diverted and stolen weapons—homemade, serial-number-free “ghost guns” have recently become an attractive option for gangs and traffickers. “Buy build shoot” kits, for example, include the 80 percent frame or receiver and all the other parts needed; they can be bought online and finished with some machining know-how in hours or even minutes. From 2016 through 2021, police traced more than 45,000 apparent ghost guns, including nearly 700 involved in homicides or attempted homicides, with the annual number increasing tenfold over that time frame. This year, about 12 percent of the guns recovered by the NYPD have been ghost guns.
Second, the old regulatory definition of “frame or receiver” wasn’t a great fit for many modern weapons, such as AR-15s. An AR-15 has both an “upper” and a “lower” receiver, but neither counted as a receiver under a literal reading of the regulation. This issue flew under the radar for decades—the ATF simply treated the lower receiver as the receiver—but recently some judges have begun to recognize the problem.
The Biden ATF’s solution is simply to tighten up the regulations, overhauling numerous policies with no input from Congress. The new rule rewrites the definitions of every major term in the relevant statutes to make them stricter. In short, the AR-15 loophole is gone, the days of unregulated “buy build shoot” kits are over, and those wanting to buy unregulated frames and receivers in the future will have to do more work to complete them.
The term “firearm” is defined to include “a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive.” “Frame or receiver” is defined to include “a partially complete, disassembled, or nonfunctional frame or receiver, including a frame or receiver parts kit, that is designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver.” When deciding whether a given item counts, the ATF will also consider whether it’s being sold with jigs, molds, instructions, or other bonuses to make it easier to complete.
These changes, alongside a smattering of others in the new rule (such as requiring gun dealers to store their sales records longer), are unlikely to reduce gun crime drastically. Long before ghost guns, again, criminals could easily procure weapons, and the gun-tracing process was often of limited use for the simple reason that criminals did not use guns that could be traced to them. In a nation with more guns than people, tinkering around the edges of gun availability is unlikely to have major effects.
Thanks to their vague wording in places, not to mention their unenviable task of saying exactly how complete a gun part has to be before it becomes a gun part, the changes are likely to create some confusion among legitimate gun-building enthusiasts as they work out the finer points of what they can still buy and what they can’t (at least without serial numbers and background checks), and among companies as they ask for the ATF’s okay to sell rejiggered products. Litigation is all but assured.
Ultimately, though, if the government is going to regulate commercial gun sales while maintaining the tradition of private gun-building, it has to draw some lines between the two. The old lines stopped working, and hopefully new ones will develop in a sensible direction. One wishes, however, that Congress would write new rules directly into the law, rather than leaving it to the executive branch.
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