Giuliano Stefanutti

Associate Editor

Loyola University Chicago School of Law, J.D. 2023

In an effort to reduce gun violence, President Biden has announced tighter regulations on the sale of “ghost guns.” Ghost guns are guns sold in several pieces and subsequently assembled by the buyer. Historically, gun kits have not been required to have serial numbers and their sales have not required background checks, which has made them far easier to acquire than normal firearms, despite the final product being substantially the same.

Closing the loophole

People have taken advantage of the looser restrictions on ghost guns to a great extent, with a significant number of them being found recently in New York. The NYPD reports having seized 131 ghost guns so far in 2022, which is more than triple the amount that they recovered last year. Authorities believe that the perpetrator of a recent school shooting in the Bronx, who killed one student and wounded two others, did so using a ghost gun. These reports illustrate what grave harms occur as a direct result of the loose restrictions on ghost guns, and the increasing prevalence of these weapons demonstrates a need for the law to catch up with the real world. To that end, Biden announced a tightening of federal regulations related to ghost guns.

While some details of the new regulations are still forthcoming, President Biden made some planned changes clear. For one, the newly announced federal rules will expand the definition of ‘firearms’ under federal law to include gun parts such as frames and receivers. The definition of ‘firearms’ under 26 U.S.C. §5845 already encompasses more than one might assume from common usage of the word. For instance, while it includes some fairly obvious examples like shotguns and rifles, the federal legal definition also includes any silencer or ‘destructive device.’ This pre-existing extension of the definition beyond actual guns makes it a logical and rational step to further expand it to include gun kits and components.

Enforcing the new rules

The agency in charge of enforcing federal gun regulations is the ATF. Along with the new federal rules, President Biden also nominated Steve Dettelbach for the director of the ATF.  Dettelbach, a former federal prosecutor, has previously pushed for a ban on assault weapons and universal background checks. This stance makes him a logical nominee for ATF director to accompany the introduction of more robust regulation of ghost guns. If the Senate confirms Dettelbach as the ATF director, he will be their first confirmation since 2013. Since 2015, when that director stepped down from the role, the ATF has been led by a series of acting directors instead of a permanently appointed one. Dettelbach is Biden’s second nominee for the position after David Chipman, whose nomination he withdrew in response to negative reactions from republicans and some democrats. Chipman’s nomination was apparently unsuccessful as a result of his strong stance in favor of gun control. Pro-gun activists and organizations such as the NRA were strongly critical of Chipman, and the White House withdrew his nomination when it became clear that he would not receive enough votes in the Senate to be confirmed. While Dettelbach is less prominent than Chipman as a proponent of stricter gun control, the reaction that Chipman received casts some doubt on whether Dettelbach’s nomination will be more successful.

In addition to difficulties surrounding the appointment of new ATF leadership, there are also numerous obstacles that the ATF faces as an organization, which cripple its ability to sufficiently enforce regulations. For instance, due in large part to NRA lobbying, the ATF is not allowed to maintain a centralized online gun registry database. It is also understaffed compared to other federal agencies and limited in what information it can require gun sellers to provide. Therefore, even if the ATF gains a new permanent director who supports more stringent gun control measures, that will not necessarily be sufficient to ensure that it successfully enforces those new regulations. The limits placed on the ATF result in substantial underenforcement of regulations on normal guns, so the agency’s enforcement of regulations on ghost guns is likely to see similar results. In short, while steps are being taken to combat the United States’ gun problem, there will be many obstacles along the way.