A Real Life “Ghost” Story: The Rise and Regulation of Home-Assembled Firearms

By Andrew Kudlinski

On March 22, a gunman opened fire at a grocery store in Boulder, Colorado, killing ten people. The shooting occurred soon after another gunman killed eight people at three different spas in Atlanta, Georgia. The horrifying attacks have reignited a long-unresolved debate on the nature of gun control in the United States. In response to the shootings, President Biden urged Congress to swiftly pass new gun control legislation. The House of Representatives has sent two bills to the Senate that would broaden background checks on gun purchases.

However, gun control activists have demanded more, calling on President Biden to utilize executive orders for an immediate response. A specific demand has emerged from a coalition of state attorneys general: close the loophole on “ghost” guns.

What is a “ghost” gun?

Ghost guns are weapons that purchasers assemble at home from kits. Rather than taking home a fully functioning weapon from a shop, the firearm is unusable until the owner finishes the assembly. The weapons are referred to as “ghost” guns because they lack a serial number used for registration, making their ownership untraceable. It may sound legally dubious given the common knowledge of firearms regulations in the United States, but these build-it-yourself guns are perfectly legal. The question is: how?

The Gun Control Act of 1968 requires engraved serial numbers on firearms. However, the criteria the federal Bureau of Alcohol, Tobacco, and Firearms (ATF) currently uses to define a regulatable weapon is not so straightforward. It depends on what legally constitutes a firearm’s frame or “receiver.” The current Code of Federal Regulations defines a frame or receiver as “that part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.” If a manufacturer sells a receiver that has not been drilled for inserting pins to install these components, then the weapon does not meet the definition of a firearm under the Gun Control Act. It also does not require a background check for any purchaser.

As a result, manufacturers are happy to sell kits of gun components with undrilled receivers, called “80% receivers.” For example, ghostguns.com, an online retailer, sells a kit that allows a purchaser to assemble an AR15 rifle for $554.99. Purchasers simply need to drill the required insertion points on the receiver, which can be done with common tools. Tutorials offering help with the assembly are plentiful online.

The rise of ghost-gun use in criminal activity

Firearm tracing is used extensively by law enforcement to trace firearms to the first retail purchaser. Because ghost guns do not require background checks and lack traceable serial numbers, they are desirable for criminal activity. Today, more than 40% of crime guns recovered by ATF agents in California are ghost guns. The Baltimore Police Department reported a 400% increase of seized ghost guns from 2019 to 2020.

Furthermore, ghost guns have been used by mass shooters who were incapable of traditionally purchasing firearms. On November 14, 2019, sixteen-year-old Nathaniel Berhow shot five classmates at his school, killing two, before killing himself. The .45-caliber handgun he used was assembled from a kit. On August 15, 2019, Aaron Nathaniel Luther, who had a criminal past and was barred from possessing or purchasing firearms under California law, used a homemade AR15 to ambush three California Highway Patrol officers, killing one.

State Attorneys General Ask for Help

Recently,a group of eighteen state attorneys general, led by Pennsylvania Attorney General Josh Shapiro, sent a letter to U.S. Attorney General Merrick Garland, asking him to help close the 80% receiver loophole. Specifically, the letter asked that Garland expedite rulemaking from the ATF that would broaden the definition of regulatable firearms to include unfinished receivers that could become functional with purchaser input.

The letter stressed that the goal is not to restrict the rights of lawful gun owners to purchase build-it-yourself kits and 80% receivers, but rather the enforcement of the same regulations that are imposed on traditional firearms purchases. Activists stress that the change would be a big step towards closing off avenues for felonious gun ownership and reducing crime rates. Gun ownership advocates, like the National Rifle Association, feel differently. They argue that the concept of “ghost” guns is a scare tactic meant to inspire fear, and that criminals are not willing to invest time and effort to construct their own firearms.

Conclusion

Recent shootings bring debates over gun control back to the main political stage. The narrative of constant tragedy coupled with government inaction has been retold year after year in recent decades. However, President Biden is attempting to curb that narrative by responding to the nationwide requests for executive action. On April 8, President Biden announced that the Department of Justice will propose administrative rules withing thirty days to help reduce the prevalence of ghost guns. As a candidate, Biden ran on a fairly strong gun-control policy, and this will be his first effort to effectuate. Details on the proposed rules are scarce, but the new rules could be a major step towards realizing his lofty policy goals. While they likely would not affect the ability for law-abiding citizens to obtain gun kits, they would potentially decrease felonious ownership, possibly preventing, or at least deterring, future mass shootings and violent crimes.

"Case O' Guns pt 2" by Gregory Wild-Smith is licensed under CC BY-NC-ND 2.0

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By Drew Kudlinski

J.D. Candidate, 2022

Drew is a 2L Staff Writer from Gilbert, Arizona. He graduated summa cum laude with a Bachelor of Science in Finance from Arizona State University and stayed home to pursue his J.D. at Sandra Day O’Connor. During law school he has interned with the Arizona Attorney General’s Office and the U.S. Attorney’s Office. In his free time Drew enjoys playing golf, finding a good beer, and the pain and suffering of being a lifetime Arizona Cardinals season ticket holder.

The opinions expressed herein are those of the individual contributors to the ASLJ Blog and should not be construed as the opinions of the Arizona State Law Journal or the Sandra Day O’Connor College of Law at Arizona State University.