New federal regulations of ghost guns take effect after judge refuses to block them
A bid by a Texas firearm parts dealer to block the Biden administration’s new regulations cracking down on ghost guns was rejected late Tuesday by a federal judge.
Starting Wednesday, companies that sell firearm frames, known in the industry as “receiver blanks” and “lower receivers,” that can be readily converted to shoot bullets must comply with a new rule put in place by the Bureau of Alcohol, Tobacco, Firearms and Explosives.
The rule requires such companies to obtain a federal firearm license, to put serial numbers on their partially complete gun frames and to run background checks on their clients.
It is aimed at so-called ghost guns, untraceable weapons that lack serial numbers and can be made at home with parts kits or 3D printers and sold without background checks, so they can fall into the hands of convicted felons who are barred from owning firearms.
Online sales of gun parts kits have proliferated in recent years, with technology advances making it very easy for regulation-averse hobbyists to assemble their own weapons.
Police are recovering these weapons more and more as gun violence and homicides have spiked in cities across the country since 2020.
U.S. law enforcement officers recovered 1,600 self-made guns in 2016 and more than 19,000 in 2021, according to the ATF. And of the 45,240 ghost guns police recovered during this five-year period, including 692 used in homicides or attempted homicides, only 445, less than 1%, could be traced to a buyer.
With President Joe Biden unable to convince Congress to pass regulations on ghost guns, he announced in April 2021 he had instructed the Justice Department to identify “immediate, concrete actions” he could take through rulemaking.
A month later, ATF, part of the Justice Department, published the proposed rule to expand the definition of firearm under the Gun Control Act of 1968 to encompass receivers or frames that come with tools and instructions to quickly convert them into working firearms.
Despite the cloud the proposed rule had cast on the industry, Brendon Padilla opened his gun kit company Division 80 LLC in November 2021 in Galveston County, Texas.
The company, which has sold more than $220,000 in firearm parts by mail, sued the Justice Department, Attorney General Merrick Garland and the ATF’s then-acting director in May 2021 after the period in which the public could comment on the proposed rule had passed.
Division 80 claimed its business would be wiped out if the rule went into effect because its products are geared toward consumers who do not want to submit to background checks.
“There’s a thriving market of people who want to make their own guns and don’t want to go through licensed dealers,” the company's attorney, Cory Liu of the Ashcroft Law Firm in Austin, said during an Aug. 9 hearing. “Padilla’s entire product line would be wiped out; consumer demand wouldn’t be there.”
“It’s not just about a license,” the attorney added. “It’s about the ability to build a firearm, a right that’s existed since the nation’s founding.”
But U.S. District Judge Jeffrey Brown ruled Tuesday that Division 80’s predictions of its demise were mere speculation, not enough for him to grant the company’s request to block the rule with a nationwide injunction.
“Division 80 merely speculates that its business would be forced to close unless the court grants immediate relief. It likewise offers no evidence that its suppliers ‘will cease operations.’ These predictions are just Padilla’s conjecture; the court has heard from not even one of Division 80’s customers or suppliers,” Brown wrote in an 18-page order.
The Donald Trump appointee also noted Division 80 can stay open by obtaining a federal firearm license, which would only cost it $408 initially and then $194 every three years.
“Padilla suggests that even if Division 80 were to get licensed, ‘the regulatory costs, bureaucratic red tape, and extensive recordkeeping requirements’ would destroy consumer demand for its products. … But Division 80 neither presents Padilla as an expert in the market dynamics of gun-component sales nor offers any other evidence to support such a conclusion,” Brown added.
On the other hand, Brown found, the government had presented strong arguments that the new rule will help law enforcement by decreasing the number of untraceable weapons in circulation, keeping them out of the hands of criminals.
Proponents and detractors of the rule fall along familiar party lines. Nineteen Democratic-led states and the District of Columbia filed an amicus brief in Division 80’s case in support of the government's rule.
Meanwhile, the Republican attorneys general of 17 states – Alaska, Arizona, Arkansas, Idaho, Indiana, Kansas, Kentucky, Louisiana, Missouri, Montana, Nebraska, Oklahoma, South Carolina, Texas, Utah, West Virginia and Wyoming – joined a lawsuit challenging the rule filed in early June by Gun Owners of America Inc. and Bridge City Ordnance, owner of a gun shop in Barnes County, North Dakota, in North Dakota federal court.
Like Brown in Division 80’s case, U.S. District Judge Pete Welte, another Trump appointee, issued an order Tuesday denying the challengers a preliminary injunction against the ATF’s new rule.
Neither the Justice Department nor Liu responded Wednesday to a requests for comment on Brown’s order.
Besides the new federal rule, eight states and territories currently restrict ghost guns, including California, Connecticut, Hawaii, New Jersey, New York, Rhode Island, Washington, and the District of Columbia.