*Ellie Roser
I. Introduction
Privately made firearms created from “firearm parts kits, standalone frame or receiver parts, and easy to complete frames or receivers,” also known as ghost guns, pose a unique issue in firearm regulation.[1] Purchasers typically buy ghost guns in kits or create the individual parts using 3-D printers, and can then easily assemble the parts into a useable gun.[2] Ghost guns bypass federal requirements imposed on other gun manufacturers because ghost guns are not fully assembled upon purchase, and they can be purchased without a background check or serial number.[3] The Gun Control Act of 1968 imposes requirements on gun manufacturers including: obtaining a license, keeping records of sales, conducting background checks, and issuing a serial number with each gun sold.[4] Because ghost guns do not have serial numbers, law enforcement agencies cannot track a gun to its purchaser, presenting a difficult roadblock to identifying their origin.[5] Law enforcement agencies reported “a ten-fold increase from 2016” of ghost guns in their criminal investigations.[6]
II. The Biden Administration’s Final Rule
To regulate ghost guns and combat the difficulties caused by their increased usage, the Biden administration created a rule under the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).[7] In 2022, Biden announced ghost gun kits qualified as “firearms” as defined in the Gun Control Act (the Act).[8] Under the Act, “firearm” is defined as “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 . . . .”[9] The expanded definition of “firearm” applies to ghost guns made from “individual parts, kits, or by 3-D printers.”[10]
III. Manufacturers’ Challenge of Biden’s Final Rule
In 2022, a handful of manufacturers brought suit in the United States District Court for the Northern District of Texas to challenge President Biden’s new rule.[11] The court decided the rule and its expanded definition of “firearm” violated federal law, and vacated enforcement of the rule.[12] In a 5-4 decision under limited certiorari, the Supreme Court allowed ATF to enforce the rule while the Biden administration sought circuit appeal.[13] The Fifth Circuit affirmed in part, relying on legislative purpose and plain text meaning of the original rule.[14] The court decided the rule improperly expanded executive power and encroached on Congress’ role.[15] In April of 2024, the Supreme Court granted the Biden Administration’s petition for writ of certiorari.[16]
IV. How Ghost Guns Fit within the Definition of “Firearm,” “Frame,” or “Receiver”
At oral argument in October, the manufacturers argued that including ghost guns in the definition of “firearm” exceeds the authority of the ATF.[17] The manufacturers relied on differences in definition of “firearm” and “frame” or “receiver” to show the meaning of “frame” or “receiver” constitutes components of a firearm, not the firearm itself;[18] therefore, according to the manufacturers, Congress did not intend for the Gun Control Act to apply to ghost guns.[19] To undermine the policy considerations raised by the government, the manufacturers argued that hobbyists, not criminals, primarily use ghost guns. [20]
The government contended the new rule fits within the meaning of firearm, as the term firearm is meant include assembled guns as well as material that may be “readily converted” to a gun.[21] Further, the government argued manufacturers of ghost guns sell them to be so easily accessible as to be “dummy-proof[,]”[22] and the simplistic assembly of ghost guns makes them more consistent with “firearm” under the definition of the Gun Control Act of 1968.[23]
The government also introduced colorful analogies to depict the ease with which gun kits can be bought and assembled.[24] The government compared a meal delivery kit, describing how a ghost gun kit includes each specific ingredient needed to make the proverbial meal, and is quickly and easily converted to the meal.[25] The government concluded by responding to the manufacturers’ policy-based retort, stating that if hobbyists really are the main users of ghost guns, they may still purchase them with federal regulations in place to make them traceable.[26]
V. Anticipating the Impact of the Supreme Courts’ Decision on Ghost Gun Regulation
Jurisdictions across the United States see a rise in the amount of ghost guns they recover.[27] A favorable decision for the government, resulting in federal regulations, would assist law enforcement and criminal investigators in tracing the origin of ghost guns.[28] Importantly, while a Court decision will provide guidance for the time being, Congress may also use its power to rewrite the Gun Control Act to explicitly include or exclude ghost guns in the language of the Act.[29] The Supreme Court’s initial decision to allow the rule to remain in place during the government’s appeal may indicate a likely decision favorable to the government in the months to come.[30] A decision in favor of gun manufacturers will require government and law enforcement agencies to develop other strategies or technology to limit or trace the prevalence of ghost guns in communities across the United States.[31]
Photo Credit: Adam Schultz, Biden White House Archived / Flickr
*Ellie Roser is a second-year student at the University of Baltimore School of Law. Ellie serves as a UB LEADS mentor and is a distinguished scholar of the Royal Graham Shannonhouse III Honor Society. In the summer of 2024, Ellie worked as a judicial intern to the Hon. Laura S. Ripken at the Appellate Court of Maryland. Next summer, she plans to join Miles & Stockbridge as a summer associate.
[1] See VanDerStok v. Garland, 86 F.4th 179, 184–85 (5th Cir. 2023).
[2] Cara Tabachnick, Ghost Gun Use in U.S. Crime Has Risen More than 1,000% Since 2017, Federal Report Says”, CBS News (Feb. 2, 2023, 9:01 PM), https://www.cbsnews.com/news/ghost-gun-use-crimes-1000-percent-rise-since-2017-atf-report/.
[3] Id.
[4] Amy Howe, Justices to Hear Challenge to Regulation of Unserialized “Ghost Guns”, SCOTUSblog (Oct. 2, 2024, 5:35 PM), https://www.scotusblog.com/2024/10/justices-to-hear-challenge-to-regulation-of-unserialized-ghost-guns/.
[5] See Tabachnick, supra note 2.
[6] The Biden Administration Cracks Down on Ghost Guns, Ensures That ATF Has the Leadership it Needs to Enforce Our Gun Laws, Statements and Releases, The White House (Apr. 11, 2022), https://bidenwhitehouse.archives.gov/briefing-room/statements-releases/2022/04/11/fact-sheet-the-biden-administration-cracks-down-on-ghost-guns-ensures-that-atf-has-the-leadership-it-needs-to-enforce-our-gun-laws/.
[7] Id.
[8] See Tabachnick, supra note 2.
[9] 27 C.F.R. § 478.11 (2024).
[10] See Howe, supra note 4.
[11] See VanDerStok v. Garland, 680 F. Supp. 3d 741 (N.D. Tex.).
[12] Id. at 750.
[13] See VanDerStok v. Garland, 86 F.4th 179 (5th Cir. 2023); See Howe, supra note 1.
[14] VanderStok, 86 F.4th at 188, 197.
[15] Id. at 197.
[16] See Garland v. VanDerStok, 144 S. Ct. 1390 (2024).
[17] Amy Howe, Court Likely to Let Biden’s “Ghost Gun” Regulation Stand, SCOTUSblog (Oct. 8, 2024, 5:07 PM), https://www.scotusblog.com/2024/10/court-likely-to-let-bidens-ghost-gun-regulation-stand/; Brief for Appellee at 16, VanDerStok, 86 F.4th 179 (5th Cir. 2023) (No. 23-10718) (“ATF has extended its regulatory reach beyond the limits set by Congress and seeks to wield a power it does not possess under federal law.”).
[18] See Howe, supra note 17.
[19] Id.
[20] Steven D. Schwinn, Does the Gun Control Act of 1968 Authorize Bureau of Alcohol, Tobacco, Firearms and Explosives to Regulate “Ghost Guns?”, 52 Preview of U.S. S. Ct. Cases 13, 15 (2024).
[21] See Howe, supra note 4.
[22] See Howe, supra note 17.
[23] Id.
[24] Lawrence Hurley, Supreme Court Appears Likely to Uphold Biden Plan to Crack Down on “Ghost Gun” Kits, NBC News (Oct. 8, 2024, 12:57 PM), https://www.nbcnews.com/politics/supreme-court/supreme-court-weighs-challenge-biden-ban-untraceable-ghost-gun-kits-rcna174278.
[25] Id.; Brief for Petitioner at 4, VanDerStok, 86 F.4th 179 (5th Cir. 2023) (No. 23-10718) (“A bicycle remains a bicycle, even if, for example, it includes plastic guards attached to the gears that must be removed just before use-just as, for example, Polymer80’s partially complete frame that merely contains temporary rails or tabs that must be removed before use remains a frame.”).
[26] See Howe, supra note 17.
[27] Victoria Sheber, Ghost Guns: What Prosecutors Should Do to Combat the New Frontier of Untraceable Violence, 59 Am. Crim. L. Rev. Online 55, 60–61 (2022).
[28] Rina Torchinsky, The Biden Administration is Regulating “Ghost Guns.” Here’s What the Rule Does, NPR (Apr. 12, 2022, 5:30 AM), https://www.npr.org/2022/04/12/1092063600/what-are-ghost-guns-explained.
[29] See Schwinn, supra note 20, at 16.
[30] See Howe, supra note 17.
[31] See supra Part I.
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