Photo credit: Adam Schultz Creative Commons/Flickr
Nick Leiber
As we are reminded by headlines such as “A School Bus Crosses U.S., Linking Families of Mass Shooting Victims” and “Teens buying ‘ghost guns’ online, with deadly consequences,” our gun violence nightmare doesn’t seem to be ending. More Americans died of gun-related injuries in 2021 than in any other year on record, according to the Centers for Disease Control and Prevention. Perhaps most disturbingly, firearms are now the number one cause of death for children in the U.S., surpassing motor vehicle deaths and those caused by any type of injuries or illness.
Before I started law school, I worked as a journalist. While I did not cover guns regularly, the few times I did stayed with me. I wrote about online firearms marketplaces that enabled private sellers to skip background checks. I interviewed a father working to prevent gun violence after his son was murdered at Parkland, as well as a university administrator who told me parents’ safety concerns were affecting enrollment. (While we were speaking, she was dealing with her own campus being threatened with mass shootings.) I tried to wrap my brain around the statistic that there are more privately-owned firearms than people in the U.S. The number has been increasing, spurred by the COVID-19 pandemic, the 2020 protests, and mass shootings, which drive sales because of fears about legislators enacting new regulations.
Ghost guns are the latest gun violence phenomenon that concerns me. I started to research them in the summer of 2022, when I assisted on a lawsuit and an injunction aimed at preventing businesses from selling them in New York. In a major report released earlier this year (the first of its kind in 20 years), the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) identified a “dramatic rise” in ghost guns recovered by law enforcement. Not only have sellers exploited gaps in existing regulations, the new standard imposed by last year’s Supreme Court decision in New York State Rifle & Pistol Association Inc v. Bruen requiring that gun safety laws be consistent with the country’s “historical tradition of firearm regulation” might add another hurdle to controlling their proliferation.
The Emerging Threat of Ghost Guns
Ghost guns derive their name from their lack of serial numbers and background check requirements, making them virtually untraceable. In other words, they generally cannot be traced back to their original owner if they are recovered after a killing or another violent incident. They can be bought without background checks, enticing those who are barred from buying guns or want to do so anonymously.
Ghost guns are sold online and can be assembled at home in under an hour. They come in a variety of forms, from pistols to AR-15-style semiautomatic rifles, and can also be made with 3D printers. Everytown for Gun Safety calls ghost guns “the fastest-growing gun safety problem facing our country,” noting that they “are also the thread connecting a recent increase in gunfire on school grounds.” The group maintains a sobering database of ghost gun shootings and recoveries from across the country.
The Giffords Law Center explains that ghost gun manufacturers have generally “left the parts just unfinished enough to escape the definition of ‘firearm’ under state or federal gun safety laws.” In 2020, four cities and Everytown, in the first lawsuit over the regulatory failure on ghost guns, sued the ATF to try to close that loophole. Then, last year, the Biden administration took action by modernizing the legal definition of a firearm to stop them from being sold without serial numbers or background checks. The ATF issued a rule in April 2022 preventing gun sellers from selling kits of parts lacking serial numbers and requiring background checks on buyers.
But even after the rule went into effect in August 2022, businesses figured out a way to circumvent it by selling gun parts separately, as opposed to in kits. In an amended complaint filed in October 2022 in federal district court in California, Giffords, two individuals whose children were murdered by a school shooter with a ghost gun, and the State of California sued the ATF to close the new loophole to ensure gun parts are sold with serial numbers and buyers undergo background checks. “The ghost gun industry now recognizes the obvious: the Final Rule contains a massive loophole,” the lawsuit pointed out.
Just after Christmas 2022, the ATF issued new guidance through an open letter to the firearms industry and the public. It explained that ghost gun sellers must treat pistol frames—the lower part of the pistol that a shooter grips—the same as finished pistols, meaning sellers must include serial numbers on them and buyers must undergo background checks. The New York Times reported that administration officials anticipated the guidance would be challenged in federal court on the grounds that it violates the Gun Control Act of 1968 (GCA).
The GCA requires gun makers to inscribe serial numbers on every firearm they make. The law also requires buyers to undergo a background check before gun dealers sell them a firearm. The trouble with GCA’s language was that many businesses operated as if ghost gun parts–frames and receivers–were not considered firearms. (The GCA lacks statutory definitions for frame and receiver.) The ATF’s new rule and recent guidance was supposed to end the ambiguity.
That didn’t quite happen. As predicted, ghost gun sellers and others filed multiple lawsuits challenging the rule. In early July, U.S. District Judge Reed O’Connor of Texas blocked the rule nationwide in his VanDerStok v. Garland order, reasoning that the ATF had exceeded its authority in adopting it. The Justice Department asked the Fifth Circuit to freeze O’Connor’s order as it appealed his decision but the appeals court refused. Then, in late July, the Supreme Court temporarily froze O’Connor’s order after the U.S. Solicitor General filed an emergency application to stay it while the federal government appeals. The Court temporarily stayed a similar O’Connor order earlier this month.
Using Bruen’s New “Historical Tradition” Standard to Undermine Public Safety
Future lawsuits against the ATF’s clearer definitions may try to apply the “historical tradition of firearm regulation” standard created by the Supreme Court in Bruen. The Court changed the previous test for evaluating gun safety laws, holding that if the plain text of the Second Amendment protects the activities the laws are regulating, “the government must affirmatively prove that its firearms regulation is part of the historical tradition” to set boundaries on gun use. Justice Breyer’s dissent in Bruen took issue with the problematic nature of the test: “[T]he Court wrongly limits its analysis to focus nearly exclusively on history. It refuses to consider the government interests that justify a challenged gun regulation, regardless of how compelling those interests may be. The Constitution contains no such limitation, and neither do our precedents.”
Many others identified shortcomings of the new test, too. “This Court is not a trained historian,” U.S. District Judge Carlton Reeves of Mississippi wrote in an order last October. “We are not experts in what white, wealthy, and male property owners thought about firearms regulation in 1791. Yet we are now expected to play historian in the name of constitutional adjudication.” One legal commentator derided Bruen, saying it “invokes the authority of history but presents a version of the past that is little more than an ideological fantasy, much of it invented by gun-rights advocates and their libertarian allies in the legal academy.”
Bruen may make it difficult for state laws meant to stop ghost guns to survive constitutional challenges. A federal district judge in Delaware used Bruen’s historical tradition standard to temporarily enjoin parts of the state’s ghost guns law in September 2022 because the defendant did not demonstrate they were “consistent with the Nation’s historical tradition of firearm regulation.” The following month, another district judge in West Virginia used Bruen to overturn a federal law barring the removal of serial numbers from guns, reasoning that serial numbers were not required when the Second Amendment was ratified in 1791 and were not widely used until the GCA in 1968.
Bruen also surfaced in February, when the Fifth Circuit overturned a federal ban on gun possession by individuals under domestic violence restraining orders. The case, U.S. v. Rahimi, involved a man subject to an order that prohibited him from possessing a firearm after his alleged assault of his ex-girlfriend. The court found that “the lack of a distinctly similar historical regulation addressing [domestic violence] is relevant evidence that the challenged regulation is inconsistent with the Second Amendment. The Supreme Court plans to hear the Justice Department’s appeal of the Fifth Circuit’s ruling in November. The outcome could help to address the chaos resulting from Bruen by clarifying how lower courts are supposed to evaluate the constitutionality of gun regulations.
The Good News
However, the good news regarding ghost guns is there are many post-Bruen cases indicating that serialization and self-manufacture laws easily pass Bruen. For example, in Morehouse Enterprises, LLC v. Bureau of Alcohol, Tobacco, Firearms and Explosives, the district court found the ATF’s final rule on frames and receivers to be consistent with the Second Amendment, reasoning the rule “does not infringe on any individuals’ or business’ ability to completely manufacturer [sic] a firearm for personal use, nor does it restrict the ability to obtain the weapon kits at issue . . . [it] simply requires serialization of a firearm, when in the stream of commerce, so that it may be tracked in the event a crime is committed with the firearm.” The court noted the “longstanding distinction between the right to keep and bears [sic] arms and commercial regulation of firearm sales.”
Similarly, the district court in United States v. Holton, in upholding a ban on defaced gun possession, explained that it “does not believe that a law requiring serial numbers on firearms infringes on the right to keep and bear arms.” District courts in United States v. Reyna and United States v. Tita reached similar conclusions, both noting that a serial number is a “nonfunctional characteristic” of a gun.
And Justice Kavanaugh’s concurrence in Bruen indicates that commercial regulations will generally remain in effect. He noted that “[p]roperly interpreted, the Second Amendment allows a ‘variety’ of gun regulations” and quoted District of Columbia v. Heller for the point that nothing in its holding “should be taken to cast doubt on . . . laws imposing conditions and qualifications on the commercial sale of arms.”
As ghost guns have entered the public consciousness, pushes for gun violence prevention have included a call by the American Medical Association for state legislatures and Congress to subject ghost guns “to the same regulations and licensing requirements as traditional firearms.” On a practical level, one question for our society, if not the conservative supermajority at the Supreme Court, is simple: Should Bruen make it possible for anyone with a credit card and internet to assemble their own AR-15 by buying untraceable components without a background check?
As a parent with kids in school, gun violence both scares and angers me. It scares me for obvious reasons: I don’t want my kids or their peers to be killed, maimed, or traumatized in a school shooting. I don’t want teenagers to be able to buy ghost guns when they are upset. I don’t like how we’ve normalized lockdown drills—there is nothing normal about gun violence being so out of control that we need kids to practice for someone walking through their classrooms trying to shoot them. I’m angry that we treat school shootings as unpreventable tragedies when we should be treating them as preventable atrocities. We should be holding the gun industry more accountable for its deadly products and its efforts to gaslight us into thinking that buying more guns will make us safer.
Nick Leiber, CUNY Law Class of 2024, is the digital editor of the CUNY Law Review.