WASHINGTON – A new Biden administration rule governing “ghost guns,” the kits that had allowed people to assemble homemade firearms without serial numbers, took effect on Wednesday after two federal judges declined to block the measure.
The rule mandates serial numbers on gun kits and directs licensed dealers to sell them only with background checks. The judges’ decisions were legal victories for the Biden administration, which has portrayed the rule as a necessary tool to help law enforcement officials combat a surge in gun violence. Other court challenges are pending.
Ghost guns have drawn growing scrutiny in recent years, with law enforcement agencies saying they are increasingly used in crimes. At a Rose Garden ceremony in April that included gun kits as props, President Joe Biden called ghost guns the “weapons of choice for many criminals.”
Between 2016 and 2021, the Bureau of Alcohol, Tobacco, Firearms and Explosives got more than 45,000 reports of “privately made firearms” being recovered by authorities during criminal investigations, the Justice Department said.
The increase over that span was dramatic, federal data show. The department reported more than 19,300 such firearms recovered by law enforcement in 2021 – nearly five times the tally from 2018.
Attorney General Merrick Garland said in a statement in April that the new ghost guns rule “will make it harder for criminals and other prohibited persons to obtain untraceable guns, will help ensure that law enforcement officers can retrieve the information they need to solve crimes, and will help reduce the number of untraceable firearms flooding our communities.”
Some law enforcement officials and firearm-safety advocacy groups have called for the government to tackle ghost guns, either with legislation or other action. The new rule addressing ghost guns follows an unusual wave of activity on Capitol Hill, where legislation connected to firearms often goes nowhere. But in the wake of high-profile mass shootings this year, lawmakers passed modest gun-control legislation.
Opponents of the rule denounced it as unconstitutional overreach. A federal lawsuit filed in North Dakota by plaintiffs including a gun store in the state; a group of Republican attorneys general; and Gun Owners of America, a gun lobbying group, said the rule “violates principles of federalism” and “will sow chaos within large segments of the firearms community.”
On Tuesday, Chief Judge Peter Welte of the District of North Dakota denied their requests for a preliminary or permanent injunction, writing that the Biden administration had acted within its authority in laying out the rule. Welte, nominated in 2019 by President Donald Trump, wrote that the new measure “was and remains constitutional under the Second Amendment.”
“Without a doubt, this case presents divisive issues that all parties care about deeply and that are of national concern and importance, as demonstrated by the participation of nearly every state in this country in this action,” he wrote in a 27-page order. “Nevertheless, the court’s role and responsibility remains the same – to apply the law to the facts (and not the arguments or policy) of each case.”
The new rule changes how a “firearm frame or receiver” is defined in federal regulations, expanding it to “include a weapon parts kit” that can be quickly assembled. The Justice Department said the rule does not ban anyone from having a privately made firearm.
But in lawsuits challenging the rule, opponents assailed it as overly broad and said it would have a catastrophic effect on businesses and workers.
In a separate Texas case, the measure was opposed by Division 80, a company that distributes receiver blanks, which are also used by people looking to build firearms themselves.
The Biden administration rule violates Division 80’s constitutional rights and “will destroy Division 80’s entire business,” the company argued in a federal lawsuit that asked for the rule be blocked or delayed.
The Justice Department argued against any injunction in that case, saying the rule was properly issued and is constitutional. Not long after Welte’s order was issued on Tuesday, federal authorities submitted a filing in the Texas case highlighting the North Dakota ruling.
U.S. District Judge Jeffrey Brown, who was also nominated in 2019 by Trump, denied a request to issue an injunction in the Texas case. The company, he wrote, “failed to show that it will suffer irreparable harm absent an injunction.”
In the North Dakota case, the lawsuit challenging the new federal rule said it would subject gun owners “to ever encroaching, illegal and unconstitutional infringements of their right to keep and bear arms.”
Gun dealers, it said, “will be conscripted into federal service to keep illegal records of privately made firearms on behalf of the federal government – records that are not required by any federal law.”
The rule, the lawsuit argued, could cost businesses tens or hundreds of million dollars in sales. “Protected Second Amendment activity will grind to a halt,” the lawsuit said, “numerous companies will falter or go out of business, and jobs will be lost.”
A spokesperson for Arizona Attorney General Mark Brnovich, a Republican who in July had announced that he was co-leading a group of 17 states joining the North Dakota case, said Brnovich’s office was “disappointed” with Welte’s decision and “will continue to defend the 2nd Amendment against overly burdensome regulations.”
“The right to keep and bear arms includes the ability to procure guns, as well as parts and ammunition,” spokesperson Brittni Thomason said in a statement.
Lawyers for the other plaintiffs in that case did not immediately respond to a request for comment.
The Justice Department had argued in court filings that the new rule was necessary “to provide clarity to the public and the firearms industry on the proper application of federal law.”
In the North Dakota case, the department wrote that technological advances made it easier to create kits and parts that “allow unlicensed persons to make firearms quickly and easily” – usually without serial numbers, making it hard for law enforcement officials to trace the weapons if they are used in crimes.
The department argued that the rule was “a valid exercise of the authority ATF has been expressly granted by Congress” and pushed back against the idea that the rule created “an unlawful national gun registry.” Instead, the department wrote in court papers, the rule only extended how long certain records already kept must be maintained.
The Justice Department said the rule does not prohibit businesses from selling the products, but instead makes it so that they “must comply with the same regulatory framework that all federally licensed firearms dealers must comply with.”
Granting the requested injunction, the department said in the North Dakota case, “would significantly harm the government’s interests in law enforcement and public safety.”
In his order on Tuesday, Welte wrote: “The rather speculative risk of harm to the plaintiffs, on the one hand, does not outweigh the harm to the ATF’s interest in law enforcement and public safety, on the other.”
Authorities representing a group of cities – including New York, Chicago, Los Angeles and Philadelphia – also weighed in to support the federal rule in the North Dakota case.
They wrote in a filing that their cities had experienced “dramatic increases” in ghost guns being used in criminal activity. The new rule, they said, was “absolutely necessary to stop the dangerous proliferation of ghost guns and to promote public safety.” A group of states wrote in a separate filing that the rule would help them as they updated their own gun laws.
(c) 2022, The Washington Post · Mark Berman
When police officers arrived at the home of a suspected armed robber on Wednesday, they noticed a private-made gun sitting on his table.
“What’s this?” they asked him.
“I don’t know where THAT came from,” the suspect said. “I never saw it before, must be a ghost gun. I thought I heard some otherworldly noises coming from the basement last night.”
You got me rolling again.