ATF's Proposed Rules Threaten a Legal Mess but No End to Ghost Guns

There’s little reason to expect the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) proposed “ghost gun” regulations to actually eliminate ghost guns. That doesn’t mean that plans to regulate the market for 80 percent receivers and otherwise impose new red tape on gun users and makers won’t have an impact—they will undoubtedly create headaches for many people. But it does mean that the vague verbiage in the proposed rules has a long way to go through a comment period, implementation efforts, and court challenges before we know what it means. And it certainly won’t be the end of home-manufactured “ghost guns” no matter the advertising.

President Joe Biden entered the White House promising to toughen government restrictions on privately owned firearms, but most of his schemes require legislative action of the sort that’s tough to get through a closely divided Congress. He can, though, revise administrative rules, such as those around the (legal) home manufacture of firearms (let Reason show you how!).

“The Justice Department, within 30 days, will issue a proposed rule to help stop the proliferation of ‘ghost guns,’” the White House announced on April 7. “We are experiencing a growing problem: criminals are buying kits containing nearly all of the components and directions for finishing a firearm within as little as 30 minutes and using these firearms to commit crimes.”

In fact, criminals, being criminals, have long armed themselves without regard for laws intended to restrict their activities. “An estimated 287,400 prisoners had possessed a firearm during their offense,” the Bureau of Justice Statistics noted in 2016 after a survey of prison inmates. “Among these, more than half (56%) had either stolen it (6%), found it at the scene of the crime (7%), or obtained it off the street or from the underground market (43%). Most of the remainder (25%) had obtained it from a family member or friend, or as a gift. Seven percent had purchased it under their own name from a licensed firearm dealer.”

To the extent that privately manufactured guns find their way into criminals’ hands, they’re just another way of supplying people who don’t obey laws anyway. But the president issued his order and the ATF obliged with a 115-page document that redefines what constitutes firearms and addresses popular kits for assembling weapons, among other issues. Since many end users pair kits with unfinished 80 percent receivers (such as for AR-15s) that they finish themselves, these points are of particular concern to gun enthusiasts. 

There is a lot of verbiage in here, but from the perspective of DIY gun makers, one key term is “readily be converted,” as in “weapon parts kits that are ‘designed to’ or ‘may readily be converted’ to expel a projectile by the action of an explosive are ‘firearms’ under the [Gun Control Act of 1968].” And yes, the ATF explicitly refers to 80 percent receivers in this context.

So, what does “readily be converted” mean? According to the ATF, “readily” describes “A process that is fairly or reasonably efficient, quick, and easy, but not necessarily the most efficient, speedy, or easy process.” The ATF defines “readily” by eight factors “with no single one controlling” including time, ease, expertise, equipment, availability of additional necessary parts, expense, scope, and feasibility. 

That’s a pretty wide-ranging set of criteria that potentially encompasses an awful lot, including kits based around AR-15 upper receivers that have not previously been regarded as firearms. The rules can have a far broader reach than that, though, given that the ATF has previously claimed that toy airsoft guns can be turned into firearms. In an age of jigs, online instructional videos, CNC machines, home workshops, 3D printers, and other conveniences that put many projects within reach of hobbyists, it’s not obvious where a line will be crossed with the legally fraught goulash of factors that make something readily convertible into a firearm by ATF definition.

An industry insider told me that the ATF obviously is trying to give itself latitude to determine whatever it wants about what constitutes a firearm without objective standards. This way it can evoke any interpretation that seems politically expedient at the moment.

But there are limits even to vague language. The ATF allows that an object must be “clearly identifiable as an unfinished component part of a weapon” to be subject to regulation and that “frame or receiver molds that can accept metal or polymer, unformed blocks of metal, and other articles only in a primordial state would not—without more—be considered a ‘partially complete’ frame or receiver.” At some point, by necessity, a component stops short of being a firearm part and escapes regulation.

That’s going to be interesting, since the current market for firearms kits and 80 percent receivers evolved in response to earlier ATF rules. Demand for the kits largely exists among people who oppose legal restrictions. The proposed revisions are part of an ongoing game of whack-a-mole between government officials and gun enthusiasts. What vendors offer in the future will be a response to the outer boundaries of these rules, not just the prohibitionist desires of the current administration or of ATF agents. The industry insider told me that the commercial market for DIY firearms components will ultimately be determined more by consumer demand than by politicians’ wishes. If buyers continue to seek products that help them make guns, sellers will find a way to keep them happy.

What that future market looks like won’t be determined until after a 90-day comment period, followed by a time during which the ATF pretends to consider the comments, implementation of rules, and then lawsuits over that implementation—lots of lawsuits, probably, as people challenge the ATF on its interpretations of “readily,” “time,” “ease,” and “expertise.”

Meanwhile, it’s worth remembering that tighter government restrictions aren’t a surprise, nor are they serious barriers to making guns. Anticipating the move, DIYers uninterested in obeying such rules have been developing designs and manufacturing techniques for firearms that don’t depend on gun-specific parts or particular interpretations of regulations.

“The FGC-9 design is a homemade, semi-auto, 3D printed, polymer 9mm carbine, for $600 in parts and tooling, and a two week build time,” AmmoLand’s Dean Weingarten wrote last year of one such design. “The strength of the FGC-9 Carbine is it can be produced by an individual, at home, even in a small apartment, if electricity and access to the Internet are available,” he added.

The ATF’s proposed rule changes will eventually reshape an industry that evolved in response to earlier regulatory interpretations. What federal bureaucrats can’t do is abolish the demand for firearms made and owned beyond government control that created that industry.