What is a Gun, Anyway? The Ongoing Legal Battle Surrounding the Recent Epidemic of “Ghost Guns.”

By: Jonah Berman

Edited by: Alanna Liu and Jonah Elkowitz

What is a gun? The question may initially appear rhetorical; however, it assumes a significant degree of ambiguity within the framework of American law. In the wake of the rapid proliferation of "ghost guns"—untraceable weapons, that can be homemade via various parts—federal courts and bureaucracies have grappled with the evolving definitions of what precisely classifies as a firearm, as these “ghost” weapons cleverly circumvent the stringent regulations intended to preserve public safety.

“Ghost guns” are guns that aren’t purchased whole, or through a traditional firearms dealer, but rather assembled vis-a-vis various parts obtained from a “ghost gun kit.” These kits contain “unfinished” receivers and frames, which are the pieces of the firearm that enable the firing mechanism. All one has to do is purchase a kit, open one of many assembly videos on YouTube, and then assemble their gun. In a matter of minutes, the purchaser will possess a completely untraceable, unregistered, fully functioning firearm; they would undergo no background check or any other sort of regulation meant to weed out criminals or individuals not of age. The parts found in ghost gun kits are deliberately forged to evade legal criteria; [1] just because these guns aren’t purchased whole – despite the fact that they’ll soon become a complete, fully-functioning gun–they escape the classification of being a “gun” and thus bypass regulation. It’s a flagrant loophole that can allow guns to fall into dangerous hands.

Unsurprisingly, communities around the United States have shouldered the brunt of the ghost gun epidemic. In 2020, nearly 50% of firearms seized by the Bureau of Alcohol, Tobacco, and Firearms (ATF) in Los Angeles were ghost guns. [1] Ghost guns are especially prevalent in states with stricter gun laws; states with strong laws prevent criminals or individuals with mental illnesses from obtaining firearms through traditional means. They have thus turned to ghost guns as a solution. Luckily, California and a handful of other states have since taken steps to combat ghost guns, and recently, President Biden and the federal government have followed suit–but not without resistance. 

In response to the pervasive ghost gun epidemic, the ATF broadened its conceptualization of what typifies a gun, enabling them to regulate gun parts–even the “unfinished” ones found in ghost gun kits–not only fully ready guns. On August 24, 2022, the ATF’s "Frame or Receiver" Final Rule went into effect; this updated rule provides a contemporary definition of a firearm–broadening the definitions found in the 1968 Gun Control Act–explicitly stating that parts kits that can be easily transformed into working weapons, as well as functional "frames" or "receivers" for firearms, are now subject to the same regulations as conventional firearms. [2] This new conceptualization allows the federal government to strike back against the proliferation of ghost guns, finally giving them license to regulate the deadly, untraceable loophole.

Unsurprisingly, the gun lobby and the more conservative voices in politics struck back against the ATF’s move. Lawsuits and appeals were filed against the ATF’s Frame or Receiver Final Rule. The Supreme Court ruled 5-4 in favor of granting a stay, provisionally allowing the new Biden-backed interpretation to stay intact as legal proceedings developed. Justice Amy Coney Barrett and Chief Justice John Roberts joined the liberal bloc to form the majority. [3] However, not long after the initial provisional ruling, Justice Reed O’Connor, a judge in North Texas, attempted to block the ATF’s new regulations, arguing that even if a gun part might one day become a gun, that doesn’t give the ATF the right to regulate it as if it already was a gun. [4] However, the Supreme Court soon after repudiated the ruling of the lower court, asserting that a lower court cannot countermand the Supreme Court’s stay ruling. This has enabled the ATF’s new policy to remain in effect pending the ongoing legal battle [5]. Even more recently, on November 10, 2023, the entirely Trump-appointed 5th Circuit Federal Appeals Court echoed the sentiment of the Texas judge and undermined the ATF’s new definition. This result could be appealed to the Supreme Court once again, which will likely continue to grant a temporary stay. It remains to be seen how the situation will evolve, but for the time being, ghost gun manufacturers and their customers will not go quietly. 

The burgeoning crisis of "ghost guns" unequivocally necessitates regulatory measures, and the contention that firearm components should remain unregulated—despite their potential to be assembled into functional guns—is a deeply flawed argument that jeopardizes public safety and undermines the rule of law as well as human lives.

The current legal contention surrounding "ghost guns" underscores a critical lapse in public safety measures. These unserialized and untraceable firearms, assembled from parts designed to skirt existing regulations, represent a clear and present danger to society. It is untenable to maintain that the unassembled parts of a firearm, which can rapidly be transformed into a lethal weapon, should be exempt from regulation based on their disassembled state. This perspective fails to acknowledge the evident end-use of these components; ghost guns often find their way into the hands of dangerous individuals who otherwise would have been prohibited from obtaining a firearm via a background check. The resulting accessibility of such weapons to individuals who would otherwise be barred from firearm ownership not only contravenes the spirit of firearm legislation but also facilitates a route for criminal activity, effectively nullifying the preventative intent of gun laws. Hence, to uphold the principles of public safety and responsible gun ownership, it is imperative that we advance and enforce regulations that encompass all facets of firearm assembly, including the so-called "ghost gun" components. This is not merely an issue of semantics or regulatory overreach but a fundamental necessity to close lethal loopholes that currently undermine community safety and the efficacy of gun control efforts. 

The gun lobby asserts that regulating firearm parts proves a hindrance to law-abiding gun owners’ ability to obtain the gun parts that they desire. This is flawed reasoning; if the citizen is law-abiding and proven so by an extensive background check, they will be allowed to purchase their gun parts. Sure, the process of acquiring these weapon parts might be more cumbersome, but this concern is nothing when the result is consolidating the efficacy of gun safety laws and saving lives. Additionally, when it comes to any sort of gun legislation, the gun lobby employs a trite slippery slope argument. In the recent 5th Circuit ruling concurring opinion, a conservative judge claimed that the ATF interpretation “purports to regulate any piece of metal or plastic that has been machined beyond its primordial state for fear that it might one day be turned into a gun, a gun frame, or a gun receiver.” [6] The argument that one piece of legislation must be prohibited because it might someday give way to another piece of legislation is a completely invalid and strawman-esque argument. The gun lobby always claims that life-saving legislation is just a first step in efforts to ultimately overturn or undermine the Second Amendment; such is not nor has ever been the case. The ATF’s definition is strictly meant to prohibit ghost guns, nothing more. 

Although Justices Roberts and Coney-Barrett initially granted a stay, the existence of an overwhelmingly conservative Supreme Court will threaten the ATF’s new definition of ghost guns indefinitely. If forced to adjudicate on the matter rather than just deliberating on a timeline, it is possible, if not likely, that SCOTUS will repudiate the ATF’s new conceptualization and allow ghost guns once again. If this is the case, ghost gun regulation will fall to the states. The situation will be one to monitor over time; hopefully, with the safety of everyday Americans in mind, ghost guns will continue to be held in check.

Notes:

1. Brady United. “What Are Ghost Guns?” Brady United. Accessed November 9, 2023. https://www.bradyunited.org/fact-sheets/what-are-ghost-guns.

2. Department of Justice. “Frame and Receiver Rule Goes into Effect.” Office of Public Affairs. Last modified on August 24, 2022. Accessed November 9, 2023. https://www.justice.gov/opa/pr/frame-and-receiver-rule-goes-effect.

3. Liptak, Adam. “By 5-4 Vote, Supreme Court Revives Biden’s Regulation of ‘Ghost Guns” The New York Times. August 8, 2023. https://www.nytimes.com/2023/08/08/us/supreme-court-biden-ghost-guns.html.

4. Liptak, Adam. “Supreme Court Again Lets Biden’s Limits on ‘Ghost Guns’ Stand” The New York Times. October 16, 2023. https://www.nytimes.com/2023/10/16/us/supreme-court-biden-ghost-guns.

5. Totenberg, Nina. “Supreme Court tells 5th Circuit to stop its defiance in ghost gun case” NPR. October 16, 2023. https://www.npr.org/2023/10/16/1206245991/supreme-court-ghost-guns.

6. Robertson, Nick. “Appeals court says ATF exceeded authority with ‘ghost gun’ rule” The Hill. November 11, 2023. https://thehill.com/regulation/court-battles/4304682-appeals-court-atf-ghost-gun-rule.

Bibliography:

Brady United. "What Are Ghost Guns?" Brady United. Accessed November 9, 2023. https://www.bradyunited.org/fact-sheets/what-are-ghost-guns.

Cutler, Joyce E. "Ghost Guns’ Rule Exceeds ATF Authority, Appeals Court Holds." Bloomberg Law. Accessed November 11, 2023. https://news.bloomberglaw.com/litigation/ghost-guns-rule-exceeds-aft-authority-appeals-court-holds.

Department of Justice. "Frame and Receiver Rule Goes into Effect." Office of Public Affairs. Last modified August 24, 2022. Accessed November 9, 2023. https://www.justice.gov/opa/pr/frame-and-receiver-rule-goes-effect.

Liptak, Adam. "By 5-4 Vote, Supreme Court Revives Biden's Regulation of 'Ghost Guns'." The New York Times, August 8, 2023. https://www.nytimes.com/2023/08/08/us/supreme-court-biden-ghost-guns.html.

Liptak, Adam. "Supreme Court Again Lets Biden's Limits on 'Ghost Guns' Stand." The New York Times, October 16, 2023. 

https://www.nytimes.com/2023/10/16/us/supreme-court-biden-ghost-guns.

Totenberg, Nina. "Supreme Court tells 5th Circuit to stop its defiance in ghost gun case." NPR, October 16, 2023. https://www.npr.org/2023/10/16/1206245991/supreme-court-ghost-guns.

Robertson, Nick. "Appeals court says ATF exceeded authority with 'ghost gun' rule." The Hill, November 11, 2023. https://thehill.com/regulation/court-battles/4304682-appeals-court-atf-ghost-gun-rule.

Raymond, Nate. "US appeals court calls Biden's 'ghost gun' limits unlawful." Yahoo News, November 9, 2023. https://news.yahoo.com/us-appeals-court-calls-bidens-015832550.html.