DOJ Unveils Proposed Rule Targeting "Ghost Guns" And More

AP Photo/Jae C. Hong, File

The Biden administration released a new proposed rule late Friday afternoon imposing new restrictions on home-built firearms and attempting to redefine what a “receiver” is; delivering the first salvo in what is expected to be a barrage of regulations aimed at the firearms industry and gun owners in the months ahead.

In a press release issued by the Department of Justice, Attorney General Merrick Garland spun the new proposal as an attempt to “update the definitions of ‘firearm’ and related parts for the first time since 1968,” though he neglected to mention that the definitions are part of the Gun Control Act of 1968; legislation passed by Congress and not imposed via executive action or through rule-making.

More spin from the DOJ:

  • To help keep guns from being sold to convicted felons and other prohibited purchasers, the rule would make clear that retailers must run background checks before selling kits that contain the parts necessary for someone to readily make a gun at home.
  • To help law enforcement trace guns used in a crime, the rule would require that manufacturers include a serial number on the firearm “frame or receiver” in easy-to-build firearm kits.
  • To help reduce the number of “ghost guns” on our streets, the rule would set out requirements for federally licensed firearms dealers to have a serial number added to 3D printed guns or other un-serialized firearms they take into inventory.

In other words, even unfinished frames and receivers would have to be serialized if they’re sold as part of a kit, though the summary from the Department of Justice is silent about whether or not the unfinished gun parts would need to be serialized if they were sold by themselves.

Gun control groups won’t be thrilled that the Biden administration waited until late on a Friday afternoon to release its new proposed rules on home-built firearms, but they’re going to be happy with the text of the proposal. Gun owners, on the other hand, won’t care much about the timing, but the actual text is going to be of great concern.

A copy of the proposed rule can be found here, and at first glance it appears substantially similar to the draft proposal that was first published by Stephen Gutowski at The Reload. The proposed rule would redefine what constitutes a frame or receiver to not only include those components that are uncompleted when they’re sold to the public, but also gun parts that don’t currently meet the federal definition of either a frame or a receiver. As Gutowski explained when he posted the draft proposal:

The document also lays out plans to broaden and update the federal definition of firearms receiver to correct a problem with the ATF’s interpretation of the current definition. Courts have begun questioning the ATF’s long-running determination that an AR-15 lower is a receiver despite not including several of the parts required in the current definition. Prosecutors have been forced to drop cases involving the ATF’s determination in recent years.

The ATF admitted in the document that “neither the upper nor the lower portion of a split/multi-piece receiver firearm alone falls within the precise wording of the regulatory definition” but lashed out in the document at the “erroneous district court decisions” that employ a “narrow interpretation” of the definition.

“These courts’ interpretation of ATF’s regulations, if broadly followed, could mean that as many as 90 percent of all firearms now in the United States would not have an identifiable frame or receiver,” the document said. “Those firearms would include numerous widely available models, such as Glock-type and Sig Sauer P32013 pistols, that do not utilize a hammer – a named component – in the firing sequence.”

The ATF said it is necessary to update the definition of a receiver to ensure it won’t “be misinterpreted by the courts, the firearms industry, or the public at large to mean that most firearms in circulation have no part identifiable as a frame or receiver.” The proposed receiver definition would only require one fire control component, such as a trigger mechanism, cylinder, or firing pin, instead of requiring multiple parts as the current definition does. The ATF said it plans to keep in place the determinations on which specific parts qualify as receivers for guns currently on the market and create a voluntary process for gun makers to submit new designs for determinations.

The courts aren’t “misinterpreting” the ATF’s regulations. They’re correctly using the ATF’s definition of what makes a firearm a firearm. The Department of Justice now wants to declare that the words “frame” and “receiver” now mean something entirely different than what they’ve meant since 1968.

There’s a reason why the ATF and DOJ haven’t tried to “update” these definitions before now. It’s a real stretch to say that something that isn’t a receiver suddenly is, reversing 50 years of existing regulations. It’s also worth noting that the Department of Justice appears to want to have it both ways; expanding the definition of a frame or receiver while still being able to rely on 50+ years of previous determinations under the old definition.

Although the new definition would more broadly define the term “frame or receiver” than the current definition, it is not intended to alter any prior determinations by ATF of what it considers the frame or receiver of a particular split/modular weapon

I won’t pretend to know how the courts might rule on such an issue, but I’m guessing we’ll get a chance to find out before long. It’s going to take some time for Second Amendment organizations to carefully parse the language of the new rules, but I suspect there are going to be a lot of attorneys taking a close look at the new language this weekend.

Lawrence G. Keane, senior vice president and general counsel of the National Shooting Sports Foundation, says that the firearms industry trade group will “carefully look at the proposed rule and will gather input from our members. The details will matter. We are fully aware of the impact that this proposed rule could have on the firearm industry and gun owners in general. We are interested to know if the proposed rule is consistent with what we saw in the leaked draft documents or if it has changed and what those changes might be. NSSF will file comments concerning the rule.”

The proposed rule also has to go through a 90-day public comment period. Once the proposed rule has been published at the Public Register website, we’ll be able to submit our comments to the ATF, and I suspect that we’ll see a flood of comments in opposition to the proposal. In the past, overwhelming public opposition might have been enough to stop a bad draft from becoming a bad regulation, but I have a feeling that the Biden administration is prepared to move ahead, no matter what the public has to say about it.