Ghost Guns Are Causing Chaos in American Courts

Even gun control groups are suing over the Biden administration's new rules, and judges are divided on how the Second Amendment applies.
"Ghost guns" seized in federal law enforcement actions are displayed at the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) field office in Glendale, California on April 18, 2022.
"Ghost guns" seized in federal law enforcement actions are displayed at the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) field office in Glendale, California on April 18, 2022.   (Photo by ROBYN BECK/AFP via Getty Images)

A prominent gun control group that just a few months ago praised President Joe Biden’s new rules on ghost guns is now suing the administration, claiming federal regulators left “mile-wide loopholes” that have “flooded the country” with untraceable, home-assembled weapons.

The lawsuit, filed by the Giffords Law Center, the state of California, and families affected by gun violence, is the latest legal assault on the Biden administration’s attempt to rein in ghost guns, which do not require a background check and lack serial numbers that aid crime investigations.

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In the wake of Supreme Court rulings that have upended decades of Second Amendment precedent, judges across the U.S. are now reinterpreting the law and confronting new firearms technology that didn’t exist a few years ago, let alone when the Constitution was drafted.

Biden announced in April that, due to inaction by Congress, he would use his “regulatory authority” to curtail the rise of ghost guns, which have been linked to homicides and other violent crimes nationwide. In practice, Biden’s move meant that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) would shift its definition for when a key gun part—the frame or receiver—crosses the threshold into becoming a gun under the law, requiring a serial number and a background check on the buyer.

Biden unveiled the policy change with fanfare in a speech at the Rose Garden with the participation of a school shooting victim wounded by a ghost gun. The father of a victim killed in that same school shooting is now a plaintiff in Giffords’ lawsuit challenging the rules Biden trumpeted that day.

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U.S. President Joe Biden holds up a ghost gun kit during an event about gun violence in the Rose Garden of the White House April 11, 2022 in Washington, DC. Biden announced a new firearm regulation aimed at reining in ghost guns, untraceable, unregulated weapons made from kids. Biden also announced Steve Dettelbach as his nominee to lead the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). (Photo by Drew Angerer/Getty Images)

When the rules took effect in August, Giffords, which is affiliated with former U.S. Rep. Gabby Giffords, sent out a press release touting how it would “finally close the loophole that has allowed for the proliferation of untraceable firearms.” 

Just two months later, on Oct. 20, Giffords filed an amended complaint in federal court calling for the ATF to fix “a massive loophole.”

The new rules have effectively banned a specific type of product: a kit with an “80 percent” finished gun frame, parts, tools, and a guide for completing the assembly. But, as the Giffords lawsuit points out, the ATF is still allowing retailers to sell 80 percent frames and the rest of the components required to finish building the gun—just not in the same transaction. 

“The industry is already taking advantage of this arbitrariness, advising consumers how they can easily develop their own ‘kits’ even if purchasers are now required to order more than one product in separate transactions,” Giffords wrote.

A spokesperson for the ATF declined to comment, citing pending litigation.

The complete 180-degree shift by Giffords from their press release earlier in the year to the lawsuit filed last week was prompted by the organization seeing how the ATF decided to implement its new ghost gun rules, said Adam Skaggs, the organization’s chief counsel.

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“The way we understood the rule based on how it was written and how it's being enforced are very different,” Skaggs told VICE News. “If they had been explicit in the way the rule was announced, I think we would have had a very different reaction at the time.”

The lawsuit cites VICE News’ previous reporting on how the ghost gun industry quickly adapted to the Biden administration’s regulations. One workaround involves using a 3D printer to make a simple plastic tool called a jig, which guides gun builders in drilling holes and installing pins that enable the frame or receiver to house other essential parts like the trigger and barrel.

Under the new rules, selling an 80 percent frame together with a jig is technically illegal unless the seller has a license, does a background check, and serializes the gun. But there’s still nothing to stop a customer from buying the frame in one transaction and the jig and other parts in a separate purchase, with no screening or serial number required. And that, Giffords argues, enables everyone from school shooters to a serial killer easy access to guns.

The Giffords lawsuit was originally filed in 2020 but put on hold when the ATF said it was already changing federal ghost gun regulations and needed time to complete the rulemaking process. In the amended complaint filed last week, Giffords says the resulting change promised by the ATF “ignores the widely acknowledged truth that 80 percent receivers and frames ‘may readily be’ converted into operable firearms quickly and easily, using basic household tools.”

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The whiplash effect of an organization like Giffords publicly backing a reform just months before challenging it in court reflects a broader struggle to contain the development of do-it-yourself firearms made with 3D printers and mail-order parts, according to Andrew Willinger, executive director of Duke University’s Center for Firearms Law.

“There's this sense that the pace of technological change and the development of these devices is so quick, it’s very hard for government regulators like the ATF to keep up,” Willinger told VICE News. “They think they’re closing the loophole, then a week later somebody comes up with a new type of kit that enables the same thing.” 

The ATF’s new ghost gun rules have also been challenged by the firearms industry, with three separate lawsuits attempting to halt the implementation. Somewhat ironically, all of the cases make similar arguments under the law, with the pro-gun side claiming ATF has overstepped its authority and Giffords arguing the agency has not gone nearly far enough.

California is taking Giffords’ side in the lawsuit, with a spokesperson for ​​Attorney General Rob Bonta telling VICE News that the state is “seeing a dramatic increase in ghost guns seized year after year,” with nearly a third of all firearms recovered by police in the state now unserialized. The statement called Biden’s new ghost gun policy “an important step forward,” albeit flawed.

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“This is a glaring loophole,” Bonta’s spokesperson said. “ATF needs to make clear that 80 percent frames and receivers cannot be sold without a serial number or without a background check, period.”

California has also been grappling with legal challenges to its state-level attempts to regulate ghost guns, and one recently decided case may have national implications going forward. The company Defense Distributed, which sells a device called the Ghost Gunner that is capable of converting raw hunk of material into an 80 percent frame, sued California over efforts to ban its product. On Oct. 21, a federal district court judge sided with the state, ruling that the Second Amendment does not explicitly protect “self-manufacture of firearms.” 

Cody Wilson, the founder and director of Defense Distributed, told VICE News he plans to appeal the decision and is confident that higher court judges would overturn California’s victory under a recent Supreme Court ruling known as the Bruen decision. The opinion handed down in June overturned a New York state restriction on concealed handguns, and in doing so opened the door to broader legal challenges on gun regulations across the country. Judges have offered conflicting interpretations, with one federal district court in West Virginia wiping out a longstanding ban on possessing weapons with obliterated serial numbers.

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“A bunch of gun laws—modern municipal gun laws—a bunch of them are being thrown out now and a bunch of legislators are going back to the drawing board,” Wilson said. “In general, Bruen is being used in one direction: that’s to expand the scope and protections of the Second Amendment. That's happening everywhere.”

Legal experts who spoke with VICE News were skeptical, however, that even this conservative-leaning Supreme Court would be willing to fully strike down restrictions on unserialized weapons. While the pro-gun side argues there is a longstanding tradition of home gunsmithing that dates back to the American Revolution, the flip side is that today’s technology allows for easily building a semi-auto Glock-style pistol or AR-15 rifle—not single-shot muskets.

Eric Ruben, an assistant law professor at Southern Methodist University’s Dedman Law School said the Defense Distributed case “highlights the fact that Bruen has thrown Second Amendment law into disarray.”

“It’s hard to have a Second Amendment right to keep and bear arms if there’s no constitutional protection on the right to make them, whether to manufacture or otherwise,” Ruben said. “But that’s not to say you can’t regulate guns, either.”

Jake Charles, associate professor at Pepperdine’s Caruso Law School, added of the Defense Distributed case: “It’s a microcosm of what post-Bruen fallout looks like in lower courts—tons of confusion and inconsistency.” 

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In Giffords’ ghost gun case against the ATF, the legal jousting has only just restarted after years of sitting idle, and it will take months before any sort of decision is reached. Even if Giffords and California are successful, a victory would certainly be met with yet another lawsuit.

The Firearms Policy Coalition, which represents gun owners and the industry, has already sued to keep the ATF from changing its rules on 80 percent frames. Cody J. Wisniewski, a senior attorney with the organization, told VICE News they will “continue to litigate as necessary.”

“The ATF does not have any authority to impose these regulations, full stop,” Wisniewski said. “It certainly cannot amend federal statutes through an agency rulemaking."

Skaggs, the chief counsel for Giffords, agreed with his opposition that the courts would decide.

“I suspect this won’t be the first case and it won’t be the last,” Skaggs said.