ATF's New 'Ghost Gun' Rules Are as Clear as Mud

The ATF used a lot of words that invite lawsuits and leave industry insiders baffled.

The Bureau of Alcohol, Tobacco, Firearms and Explosives' (ATF) finalized "ghost gun" rule surprised Cody Wilson, the head of Ghost Gunner. His company manufactures CNC mills that turn unfinished firearm receivers into products that can be included in completed firearms that have no serial numbers and are, hence, called "ghosts." He'd anticipated a more-or-less explicit ban on so-called "80 percent receivers" which would leave his Ghost Gunner 3 that can turn a raw block of metal into an AR-15 receiver as the simplest remaining solution. Instead, by his reading, the new rules consumed a lot of pages to go after the most basic end of the DIY market.

Well, maybe. Other industry experts aren't sure what the rules mean. That uncertainty poses huge challenges for manufacturers, vendors, and anybody trying to establish what is and isn't legal.

"It looks like there is room still to sell 80 percent receivers, especially ones that have had determination letters," Wilson told me over the phone. "But they aren't saying they're grandfathering those determinations [about the legality of existing products]; they're saying everybody has to resubmit."

Wilson's impression is that "they're trying to prevent the evolution of something like the Polymer80 kit from happening again. And that's very clear. It's more about the Polymer80 in this reemphasis."

The White House itself implied such a focus in its April 11 "fact sheet" preceding publication of the rule: "This final rule bans the business of manufacturing the most accessible ghost guns, such as unserialized 'buy build shoot' kits that individuals can buy online or at a store without a background check and can readily assemble into a working firearm in as little as 30 minutes with equipment they have at home."

On display at the presidential press conference announcing the new rule was what appeared to be a Polymer80 kit of the sort that Reason's Mark McDaniel used to construct a pistol in 2018. But such all-you-need-minus-a-few-parts kits aren't the only way to go. I separately purchased an unfinished aluminum AR-15 receiver, jig, and parts to complete a rifle through drilling, milling, and assembly for a project featured in a separate Reason article in 2021. Or you could use one of Wilson's Ghost Gunner machines. Or you could use widely available designs to craft a firearm with 3D printers. And then there are the many people who use standard home-workshop tools to make what they want. According to the plainest reading of the ATF's language, those approaches remain legal at the federal level.

"ATF has maintained and continues to maintain that a partially complete frame or receiver alone is not a frame or receiver if it still requires performance of certain machining operations (e.g., milling out the fire control cavity of an AR-15 billet or blank, or indexing for that operation) because it may not readily be completed to house or hold the applicable fire control components," the document says. 

ATF adds that new restrictions would apply if the partial frame or receiver is indexed or dimpled to indicate where to drill, or through "the aggregation of a template or jig with a partially complete frame or receiver." Minus such clear markings or accessories, though, unfinished receivers would appear to retain a viable market without having to go to the raw blocks of aluminum and polymer necessarily exempted in the rules (unless you want to subject hardware stores to gun regulations) and with which Ghost Gunner has a distinct advantage. Wilson still sees an opening, though, in states that have tighter rules than those imposed by the ATF.

"I would say if they maintain an 80 percent space and don't allow people to buy a simple kit, then Ghost Gunner market share goes way up and then the zero-percent conversation becomes a conversation about the state level on 80s" in places like Connecticut and New Jersey that have banned unfinished receivers, Wilson told me. "I was just assuming that the feds would also be shutting that door and I'm just surprised to see that they're not."

But not everybody is convinced that the ATF rules leave an opening for the existing 80 percent receiver market to continue to operate. That's because the agency dumps its old guidance with regard to the unfinished components, creates untested new terminology, and leaves an awful lot to the interpretation of federal bureaucrats.

"You gotta remember that that's in their Q&A section," Matthew Larosiere, policy counsel attorney with Firearms Policy Coalition (FPC), cautioned me by phone about the language that seems to leave space for partially complete frames and receivers. "The rule itself refers to those partially completed receivers that are 'readily' manufactured or convertible into a complete firearm."

Larosiere pointed out that "'readily' has its own definition here which is meaningless because all we have to go on is the wildly vague notion that incomplete receivers which are 'fairly or reasonably efficient, quick, and easy' to complete into firearms are firearms. So, we don't actually know what their position is now. What we do know for sure is that they've rescinded all previous guidance on all incomplete frames or receivers." Included in the ATF's holistic definition of "readily" convertible frames and receivers is the availability of tools, parts, and instructions from the same vendors, Larosiere emphasized.

"The point of these rule-makings is supposed to be to clarify the law," he told me. "And I don't see any clarification here at all."

There is something that everybody does agree on: The new gun rules will end up in court. "Based on the comments received in opposition to this rule, there is a reasonable possibility that this rule will be subject to litigation challenges," acknowledges the ATF. Wilson agrees that "a lot of people" are going to sue, as does Larosiere. The fact that individuals with deep knowledge of firearms and applicable laws have widely different interpretations of the government's language probably necessitates courtroom drama so that somebody can hammer out what those words actually mean.

The finalized ATF rule, which takes effect 120 days after publication in the federal register, also requires permanent records-retention by licensed gun dealers instead of allowing for disposal after 20 years as in the past, changes marking requirements for adding serial numbers to guns, and anticipates a growing market for privately made firearms which, of course, the government intends to regulate. But the greatest legacy of this rules update is to issue hundreds of pages of firearms regulations that are as clear as mud and leave experts in the field disagreeing over the interpretation.