New Federal Ghost Gun Regulation Adopted
The federal Department of Justice, Bureau of Alcohol, Tobacco, Firearms and Explosives, published a new federal regulation governing ghost guns on April 26, 2022. The rule, which revises and amends existing ATF regulations, becomes effective on August 24, 2022. The provisions of the regulation apply to ghost gun sales in Nevada and all other states.
What Is a Ghost Gun?
As explained in our previous article about the Nevada ghost gun law, the term “ghost gun” refers to unregistered firearms without serial numbers. Typically, a ghost gun is made from a kit or parts purchased online. These guns can be made or acquired without a background check and are not registered. They usually cannot be traced, because they do not have serial numbers.
It has been alleged by some that the use of unregistered, untraceable ghost guns has proliferated because of loopholes in federal and state gun laws. The idea of ghost guns previously existed primarily within the sphere of hobbyists, but it has been alleged by the government that their use in criminal activity has increased exponentially in recent years. Again, the ATF, and others, have alleged that the untraceable nature and lack of a background check requirement of the guns pose significant issues for law enforcement in investigations of criminal activity. The new federal regulation seeks to limit these alleged ghost gun loopholes in federal law.
At least 10 states have enacted statutes prohibiting ghost guns. Nevada adopted a ghost gun law in 2020, but a state court declared important parts of the law unconstitutionally vague and unenforceable. That decision is on appeal.
Provisions of the Federal Ghost Gun Regulation
The Department of Justice published the final ghost gun regulation in the Federal Register on April 26, 2022. It goes into effect on August 24th, 120 days after publication. Adoption of the new rule followed a required lengthy rulemaking process. The proposed regulation, published in May 2021, drew almost 300,000 comments. ATF made changes in the final regulation as the result of some of the comments.
As published, the revised and amended regulation controls ghost guns through three different types of revisions: making changes in existing definitions, adding requirements for marking ghost guns, and implementing recordkeeping relating to the guns. The changes in the regulations were adopted pursuant to the authority of the Justice Department under the federal Gun Control Act of 1968 and the National Firearms Act of 1934. The revisions are complex and technical. The published final regulation provides detailed explanations of the reasons for all the revisions.
The new rule amends existing ATF regulations to revise the regulatory definitions of firearm frame or receiver and frame or receiver, on the basis that previous ATF regulations did not accurately define those terms. Definitions of many other terms, including firearm, gunsmith, complete weapon, complete muffler or silencer device, multi-piece frame or receiver, privately made firearm, are also updated for clarity and due to advancements in firearms technology.
In addition, the amendments implement requirements for marking certain gun parts with serial numbers and recordkeeping by licensed dealers. The stated intent in promulgation of the new and revised definitions is to inform the public and industry which portion of a firearm was the frame or receiver for purposes of licensing, serialization, and recordkeeping, to ensure that a necessary component of the weapon can be traced if it is involved in a crime.
Effect of Federal Regulation
The revisions in ATF regulations do not ban gun kits or affect penalties for crimes committed with ghost guns. The stated goal is to bring regulation of ghost guns more in line with the laws that apply to traditional guns, by subjecting them to the same processes. To that end, the regulation requires gun kits to be produced by licensed manufacturers. A serial number of the gun kit’s frame or receiver is required. In addition, any person purchasing a kit must pass a background check.
For existing ghost guns in circulation, licensed dealers are required to add serial numbers to ghost guns in their inventory, regardless of how the gun was produced. Licensed gun retailers now must retain records for as long as the licensee is in business, to address issues with destruction of records that ATF has encountered in investigations.
The regulation does not prohibit privately made firearms from parts for self-defense or other lawful purposes, provided an individual is not prohibited from possessing or receiving firearms, engaged in the business of dealing or manufacturing firearms without a license, or engaged in any other unlawful activity. However, private gun makers do have to abide by other applicable federal, state, and local laws and regulations that govern privately made firearms, such as the federal Undetectable Firearms Act, National Firearms Act, and Gun Control Act.
Already, some organizations have stated an intention to challenge the new rule in court. It remains to be seen whether the courts will uphold the regulation or whether it will meet the same fate (at least temporarily) as the Nevada ghost gun law.
Talk With a Las Vegas Firearm Defense Attorney
Las Vegas criminal defense attorney Joseph Gersten represents clients on all federal and state gun charges in Clark County and in other Nevada jurisdictions. As an approved Concealed Firearm Instructor for Nevada and Utah who has certification from the National Rifle Association (NRA) in more than nine (9) disciplines, he knows and understands firearms. We welcome you to contact The Gersten Law Firm to schedule a free consultation about ghost guns, firearm offenses or any other federal or state criminal matter.
