NRA-ILA | Brace Yourself: Biden Administration Reinterprets “Firearm,” Prepares Crackdown

When we say “brace yourself,” we’re not kidding. The pistol brace rule is coming as well.

But first, a different sort of crackdown was unleashed on the nation this week, as an ATF rule published on April 26 finally took effect on Wednesday. The regulation is entitled “Definition of `Frame or Receiver’ and Identification of Firearms.” That rule is so cumbersome, complex, sprawling, and indecipherable that ATF was forced to publish an update to the “final” version on Monday, admitting:

Due to the complexity of this rulemaking process and the resulting significant number of comments and revisions in response, the final rule inadvertently contained some technical errors in the regulatory text that this document corrects.

Of course, from the agency that misspelled its own three-letter acronym on one of its most important publications in 2014 (a gaffe Joe Biden himself recently repeated in announcing what proved to be a doomed candidate for the agency’s new director), this is perhaps to be expected.

The rule is being marketed through the credulous anti-gun media as a means of regulating “ghost guns,” or unmarked firearms manufactured by those other than federal firearm licensees (FFLs). The latter have long been required to stamp firearms with specified markings and keep detailed records of their production and distribution.

Even this premise, however, doesn’t make a lot of sense.

“Ghost guns” are no more lethal or dangerous than “mortal” guns. They are simply more difficult to trace back to the original maker or owner.

In any event, the rule does not prohibit the making or possession of personally made, unserialized firearms (and it is unlikely the Second Amendment would allow for such a restriction, as this has been an unbroken practice in the United States since its founding).

Rather, it creates requirements for the marking of personally made firearms that find their way into the inventories of FFLs. But if the concern is that criminals are making firearms for themselves or for other scofflaws, the FFL distribution system is largely irrelevant, as criminals intentionally avoid it and easily bypass it already. 

The rule does, however, redefine certain key terms in federal gun laws, such as “frame,” “receiver,” and even “firearm” itself, to try to bring more unfinished gun parts, parts at an earlier stage of manufacture, and build kits under the jurisdiction of laws that pertain to operable guns. This, supposedly, would make it less convenient for criminals to skirt gun control laws by buying these parts or kits “off the books” and turning them into functional firearms.

There are, however, likely many millions of unmarked firearms and build kits among the population already. And, the technology to make firearms using additive manufacturing (or so-called 3D printers) is not going anywhere. These things will not disappear, nor will criminals suddenly develop scruples about having “untraceable” guns, simply because of some new bureaucratic requirements.

More fundamentally, there is the question of how much law enforcement value is actually derived from firearm traces. The premise here is that tracing a firearm back to the original retail purchaser gives investigators a “lead” in solving a firearm-related crime.

But if the firearm has been in circulation for a long period and has changed hands many times (which is more often the case than not with crime guns), identifying the original retail purchaser is likely to be a time-consuming and labor-intensive dead end. That “lead” will likely have turned cold years earlier.

As one New York police official recently told a local CBS News affiliate concerning the rule: ““I don’t think it’s going to make a huge change personally.”

Tech website Gizmodo.com was even more critical in its assessment:

These rules, while welcomed by some gun control advocates, will likely do little to address the overall issue of gun violence plaguing the country and may not do much to address wider problems surrounding Ghost Guns. Though Ghost Guns are on the rise, they still make up a fraction of the more than 400 million firearms currently spread out across the country. It’s also unclear what, if any effect these changes will have on gun owners who simply choose to buy kits or download firearm parts illegally.

On the other hand, serial numbers and manufacturing information are certainly necessary precursors for any comprehensive system of registering and licensing the sales of lawfully-owned guns. This, in turn, enables authorities to confiscate or tax or require modifications to guns – or to simply browbeat their owners into surrendering them via threats of seizures and prosecutions – when opportunities arise to change the rules. 

Trace information is also used by gun control advocates to make (often dubious) claims about which firearms are most commonly used in crime or which firearm dealers sell the most “crime guns.” Such information can then be used in legal actions which can bankrupt even legitimate businesses that simply do not have the means to mount an effective and prolonged legal defense.

Thus, to the degree the rule is concerned about law enforcement at all, it appears aimed more squarely at prosecution of future technical violations of bureaucratic requirements by otherwise law-abiding Americans and industry members than at those ruthlessly committing crimes in the streets. This is certainly consistent with current Biden Administration practice, which emphasizes revoking FFLs for technical violations and spot-checking apparently lawful multiple firearm purchases over pursuing violent criminals who actually harm others with firearms.

Meanwhile, the rule creates a number of logistical headaches for manufacturers, who will have to interpret and apply its minutiae and ambiguities, likely with little aid from ATF, which is notoriously stingy with help in complying with the law and which regularly reverses its own determinations anyway.

The rule also sets a very disturbing precedent of allowing a federal regulatory agency to vastly increase its own jurisdiction, both by fundamentally diverging from terms already defined in federal law and from creating new terms that apply to regulated commodities that were never contemplated by lawmakers.

Besides its marquee “ghost gun” provisions, moreover, the rule also changes a number of other practices pertaining to firearm commerce, almost all of them to the disadvantage of industry members and law-abiding gun owners. For example, a rule that used to effectively allow active FFLs to purge their business records after 20 years now requires those records to be maintained indefinitely. Again, it’s difficult to see how this makes sense in solving street level gun crimes. But it’s easy to see how it could facilitate the creation of a comprehensive federal registry of firearms and their owners. Details on many of the rule’s odious provisions were explained in the NRA’s comments on the original proposal.

Industry, advocacy, and state defendants had sued on various substantive and procedural grounds to block the rule from taking effect. That challenge was denied on Tuesday. Nevertheless, the underlying case on the rule’s legality, as well as likely future challenges to specific applications of the rule, will continue.

In the meantime, individuals otherwise in lawful possession of personally made, unmarked firearms generally do not have immediate legal exposure under the rule. Selling those firearms through an FFL, transferring them interstate, or having them serviced by a gunsmith, however, could trigger the rule’s marking requirements.

The effects of this sprawling new power grab by the Biden Administration will likely continue to unfold for many years. Stay tuned to www.nraila.org for updates on significant developments.