Eisenstein: Biden’s “Ghost Gun” Crackdown Hardly Makes Sense


Courtesy of Polymer80

Columnist Daniel Eisenstein breaks down President Biden’s plan to limit the manufacturing and use of “ghost guns.” 

Daniel Eisenstein

On June 23, 2021, President Biden instructed a handful of administrative decisions with the intention of preventing firearm-involved crimes, and on the 11th of this month, the final draft of the new regulations were published. One of the intended changes was to mitigate the use of “ghost guns” in criminal activity, though the specifics were highly unclear. A “ghost gun” is generally regarded as a firearm without a serial number. This may include homemade firearms for personal use, the manufacture and possession of which is legal in most states. Many studies and statistics also conflate the term, “ghost gun,” with firearms that have obliterated serial numbers. Obliterating the serial number on a firearm was federally criminalized with the enactment of the Gun Control Act of 1968. Nevertheless, to effectively restrict the private manufacture of firearms, one must ask a few questions. What is a firearm? How are they privately produced? What measures can the executive branch take to stop people from making them?

What is a firearm? To many, the answer is obvious, but for the law, it must be carefully defined. Federal law defines a firearm as “any weapon which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.” In my opinion, this definition is clear and logical. More specifically, however, what piece of the firearm is, legally speaking, a firearm? The next line in the statutes codify that a firearm is “the frame or receiver of any such weapon.”

From my experience, there are many ways to manufacture a firearm utilizing a 3D printer, mill, and/or lathe, for example. Some designs may require parts purchased “off the shelf” while others may not. Certain parts may be specific to firearms and others may not. The only catch is the frame or receiver. Purchasing one is akin to purchasing a functional firearm, so hobbyist gunsmiths usually err on the side of making that part themselves. Some manufacturing companies sell incomplete frames or receivers. These are designed so that the end-user may mill away some holes, pockets, or tabs of material, making the incomplete frame or receiver as easy to sell as any block of metal or plastic and making the end-user the legal, private manufacturer of the firearm. In other words, these incomplete frames or receivers were sellable like packaged candy, no questions asked, until now … maybe.

President Biden’s administrative regulation change is most concerned with businesses selling unfinished frames and receivers. Adding a statutory definition to a firearm frame or receiver would require an act of congress, something the Biden administration is incapable of conducting alone. But, due to the lack of a statutory definition or much case law on the subject, the executive branch gets to make it up themselves! In this case, that authority is delegated to the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF).

You may wonder, “What on Earth is a frame or receiver?” To avoid an overload of technical jargon, it is generally regarded as the part of a firearm that interfaces its most critical components, but that is changing shortly. In the words of the Director of Legal Policy for the Firearms Policy Coalition, Matthew Larosiere, “[This ruling] changes the definition of a frame or receiver … from a short statement to a multi-page long, cross-referenced mess with new terms and sub-definitions while invalidating all previous definitions regarding unfinished [frames or] receivers. This definition … is as clear as dry mud.” 

Larosiere goes on to state, “The definition now includes partially complete, disassembled, or non-functional frames or receivers. It all hinges on whether or not the unfinished [frame or] receiver is designed to or may be readily made into a functional [frame or] receiver. Of course, ‘readily’ has its own definition which hinges on whether it is reasonably efficient, quick, and easy to do. So much for clarification, right?”

While the new definition (page 324) goes on for ten pages, it is so poorly written that it needs to clarify that an “unformed block of metal, liquid polymer, or other raw material” is not a firearm frame or receiver. Larosiere finishes by stating that a number of lawsuits are required before any genuine clarification is offered.

President Biden’s regulatory change also modifies marking and recordkeeping regulations for licensed importers and manufacturers. Licensed firearm dealers and gunsmiths are now required to mark privately made firearms if they retain them for a period of time, likely chilling them from accepting any at all. Licensed firearm dealers are also now required to retain transaction records indefinitely as opposed to the previous 20-year requirement. This change draws concern that the ATF is attempting to create a de facto registry of firearms and their owners, though as firearms change hands, firearm transaction data is not always reliable. 

In summary, President Biden’s regulatory changes sound like nothing more than a headache for the firearms industry and their lawyers. Worst of all, however, it fails to achieve its intended purpose, preventing firearm-involved criminal activity. This ruling completely ignores the fact that redrawing the line where an object becomes a firearm is nothing more than a cat-and-mouse game. Already, companies like Defense Distributed are selling preprogrammed milling machines that can create an AR-15 lower receiver from nothing more than a block of aluminum. People with access to well-calibrated 3D printers, like myself, can continue operating as normal. The businesses behind unfinished frames and receivers are not giving up, and the lawsuits they are likely to file may just cause President Biden’s ruling to go down in flames. 

The most frustrating aspect of President Biden’s ruling is that it completely ignores how criminals are commonly acquiring firearms. It is still overwhelmingly common for criminals to purchase firearms regularly, have a firearm straw-purchased for them, “know a guy” that will sell them a firearm, or even steal a firearm themselves, as noted in a 2016 Department of Justice study (see table 5, page 7). This crackdown on “ghost guns” will only serve as a short-sighted, half-baked punishment for the firearms industry and their customers.