New ATF Ghost Gun Regulation

June 24th, 2024
Posted By
Joseph Gersten

The ATF (Bureau of Alcohol, Tobacco, Firearms and Explosives in the United States Department of Justice) has again taken aim at ghost guns and the gun-show loophole in federal law. In April 2024, DOJ amended ATF regulations by enacting a new direct final rule that requires anyone selling a gun to obtain a federal license and conduct background checks, with limited exceptions. As a direct final rule, the regulatory provisions went into effect in May.

Provisions of New ATF Ghost Gun Regulation

The new rule, enacted pursuant to bipartisan gun safety legislation adopted in 2022, purports to close the so-called gun-show loophole in federal law, which allows private transactions by gun sellers who do business online, by mail, or at flea markets and gun shows to avoid obtaining a federal license and conducting background checks — requirements that apply to individuals who own and operate brick-and-mortar gun stores as their main source of income. Without the same requirements, these sellers are able to distribute ghost guns, or unregistered, untraceable firearms without serial numbers, often made from kits or parts purchased online or printed with a 3D printer.

The new regulation requires anyone selling a gun to obtain a federal license and conduct background checks. It imposes the requirement by expanding the definition of what it means to be “engaged in the business” of selling firearms. The new definition means that background checks are required for the sale of a gun not only at gun stores, but also in other ways, including on the internet and at gun shows and flea markets. Inter-family transfers and occasional sales from a collection generally are not affected.

The Justice Department estimates that approximately 22% of guns in the U.S. were acquired without a background check and that the new requirement affects about 23,000 unlicensed dealers. As such, it potentially impacts tens of thousands of gun sales every year. DOJ claims that the regulation also allows for better tracing of guns found at crime scenes, including mass shootings, which are often ghost guns.

The rule also clarifies additional technical aspects of selling and owning guns. For example, it adds a definition of “personal firearms collection” to allow gun collectors to add to or liquidate a collection without violating the law. The regulation also clarifies what federal firearm licensees should do with a gun supply when they go out of business.

Potential Challenges to the New Regulation

As we discussed in an earlier blog post, a previous 2022 ATF ghost gun regulation ran into significant legal challenges that escalated all the way to the Supreme Court of the United States. The litigation over that regulation continues, with another Supreme Court argument scheduled for the October 2024 term of the Court.

In announcing the new regulation, a federal official (who spoke on the condition of anonymity in at least one instance) stated that the government is confident that the new rule will not be stopped by legal challenges. Whether that turns out to be the case remains to be seen.

The 2022 regulation drew challenges from gun owners, gun rights advocacy groups, and manufacturers of firearm kits and components on the basis that the regulation went beyond the ATF’s authority under federal gun law. While the provisions of the 2024 ATF regulation differ substantially from the 2022 rule, it is too early to know whether the 2024 will draw similar legal challenges.

Since ghost guns first became a subject of public and government attention, gun rights advocacy groups and others have questioned the government’s estimates of the impact of ghost guns on an increase in crime. Given the potentially significant impact of the 2024 regulation, DOJ’s estimates of the impact of ghost guns put forth in support of the new rule may similarly be questioned by the same groups.

State of Nevada Background Check Requirements

Regardless of what happens with the new ATF regulation, Nevada state law requires anyone purchasing a gun to pass a background check, whether the gun obtained from a commercial dealer with an FFL (Federal Firearms License) or a private gun dealer. The Background Check Act, found at NRS 202.2544 to 202.2549, exempts certain classes of sales from the requirement.

If you are a Nevada gun owner or considering purchasing a firearm in the state, it’s important to understand the state law that applies to gun purchases. Our blog post Basic Facts About Buying a Gun in Las Vegas provides an excellent summary of information about purchasing a firearm. Other blog articles that include helpful information for Las Vegas gun owners include:

Talk With an Experienced Las Vegas Firearms Defense Attorney

Las Vegas criminal defense attorney Joseph Gersten represents visitors and residents 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 and related charges.  Contact The Gersten Law Firm to schedule a free consultation if you face firearms or weapon charges or have questions about Nevada gun law.

Categories: Nevada Criminal Defense