Second Amendment Roundup: ATF's Wish to Trace More Firearms Doesn't Justify Redefining "Firearm"

In VanDerStok, the Supreme Court will decide if policy trumps statutory text.

ATF declares that its Final Rule at issue before the Supreme Court in Garland v. VanDerStok "will enhance public safety by helping to ensure that more firearms may be traced by law enforcement to solve crime and arrest the perpetrators."  Radically expanding the definition of "firearm" from what Congress enacted is allegedly justified by the policy argument that the agency will be able to "trace" more firearms.  Whether that will solve more crimes is a big "if."

We're all familiar with the spiel.  A criminal leaves his gun at a "crime scene" (how often does that happen?) but gets away, unidentified.  Police find the gun and ask ATF to trace it.  The gun is engraved with the manufacturer's name and serial number.  ATF starts with the manufacturer and, using the records kept by federal licensees, traces the gun to its retail purchaser.  And voilà, the criminal is identified and arrested.

But now the sky is falling.  ATF insists that its Final Rule is the Ghost Buster for "ghost guns," a propaganda term used to describe privately-made firearms.  Unless the kits from which hobbyists make their own guns are declared to be "firearms," their homemade guns won't be traceable.  Criminals who lose their guns at "crime scenes" won't be caught.

After years of ATF exaggerating the usefulness of tracing, Congress enacted a law in 2013 requiring ATF to "make clear that trace data cannot be used to draw broad conclusions about firearms-related crime" by including in its releases of information the following language: "Law enforcement agencies may request firearms traces for any reason, and those reasons are not necessarily reported to the Federal Government. Not all firearms used in crime are traced and not all firearms traced are used in crime."

Consider the disconnect.  ATF traces all firearms it encounters.  A person is subject to a domestic violence restraining order and ATF learns that he has a very large gun collection.  They raid his house, seize all 200 of his guns, and then trace them.  That goes down as 200 "crime guns" seized at a "crime scene" that have nothing to do with his offense of mere possession while subject to the order.
As explained in my two previous posts (here and here), Congress defines a "firearm" as a weapon "which will or is designed to or may readily be converted to expel a projectile by the action of an explosive" or "the frame or receiver of any such weapon."  ATF's Final Rule expands that definition to include partially-machined raw material, information, jigs, and tools that sufficiently-skilled persons may fabricate into a firearm.  Whether ATF has such authority is the issue before the Court in VanDerStok.

One of the superior amici briefs filed in the case is that of the Citizens Committee for the Right to Keep and Bear Arms, authored by Dan Peterson and C. D. Michel.  I'll cover some of the highlights in that brief and offer some additional material in the following remarks.

Only licensed manufacturers and importers who are "engaged in the business" are required by the Gun Control Act (GCA) to identify and serialize firearms.  18 U.S.C. § 923(i).  Hobbyists are free lawfully to craft their own guns without these requirements.  ATF claims that the resultant "ghost guns" cannot be traced, thus requiring the non-gun materials that hobbyists use to make guns be redefined as guns.

But the GCA, as amended by the Firearm Owners' Protection Act, sharply delineates licensees from private individuals.  While ATF may inspect licensed dealer records "in the course of a bona fide criminal investigation," it is prohibited from establishing "any system of registration of firearms, firearms owners, or firearms transactions."  18 U.S.C. §§ 923(g) & 926(a).

Nevertheless, ATF has been on a crusade to trace all firearms that law enforcement encounters, and its attack on privately-made firearms is only the latest stage in this endeavor.  The Final Rule, ATF urges, is necessary to address an "urgent public safety and law enforcement crisis posed by the exponential rise of untraceable firearms commonly called 'ghost guns.'"

Let's test this claim with reality.  New Jersey is one of the states that traces every firearm it encounters, to include the .22 rifle a widow abandons at a police station.  Not exactly a crime scene.

In 2022, New Jersey criminalized the purchase of a parts kit not made by a licensed manufacturer with a serial number.  ATF trace data for New Jersey that same year shows 5,248 firearm traces, of which 3,824 – 73% – were for "possession of weapon" and "found firearm."  Keep in mind that the Garden State makes possession per se without the right papers a crime.  How many of these were privately-made firearms?  Only 67 traces were for "homicide" and 132 for "aggravated assault."  As to firearms seized from the possessor, how did tracing solve any crime?

The Citizens Committee brief goes on point by point in explaining why tracing isn't what it's cut out to be and how meaningless is the supposed data on "ghost guns."  First, a trace only leads to the first retail purchaser, if that person can be located.  Without evidence, no reason exists to consider that person a "suspect" in whatever the crime is.  And after that first purchase, the gun may have been inherited, given as a gift, sold, lost, or stolen.

Second, criminals don't typically buy guns from a licensed dealer, and thus their acquisitions cannot be traced.  Where do criminals get their guns?  Out of 24,848 prison inmates surveyed, a Bureau of Justice Statistics study Source and Use of Firearms Involved in Crimes (2019) reported:

Off the street/underground market: 43.2%

Obtained from individual: 25.3%

Theft: 6.4%

Purchased/traded at retail source: 10.1% [only 6.9% under one's real name]

Other sources: 17.4%

The study made no mention of any of the firearms being made from kits.  Multiple studies of the sources from which criminals get their guns, going back to the 1980s, report similar results.

Third, evidence does not support the government's argument of an "urgent public safety and law enforcement crisis posed by the exponential rise of untraceable firearms…." Let's compare some numbers.  There are an estimated 500 million firearms in private hands in the United States.  The types of kits that hobbyists most often make into firearms are for AR-15 rifle types and handguns similar to Glocks.  ATF data shows that about two and a half million Glocks were introduced into commerce between 2016 and 2022.  According to the National Shooting Sports Association, there were 24 million+ modern sporting rifles (mostly AR-types) in American civilian circulation as of 2020.

Compare those numbers with the 19,000 privately-made firearms alleged to have been traced in 2021.  That's hardly a drop in the bucket.  And consider this further finding by Congress in the 2013 law cited above: "Firearms selected for tracing are not chosen for purposes of determining which types, makes, or models of firearms are used for illicit purposes. The firearms selected do not constitute a random sample and should not be considered representative of the larger universe of all firearms used by criminals, or any subset of that universe."

Other than the numbers of privately-made firearms traced, no information exists as to why they were traced.  ATF has raided companies that market kits and presumably seized their inventory, which could jack-up the statistics dramatically.  Eleven states and the District of Columbia restrict privately-made firearms, so traces generated in those places may reflect mere possessory offenses.

Based on unverified media accounts, Everytown for Gun Safety Foundation lists 187 alleged "shootings" with "ghost guns" between 2013 and 2024, for an average of about 15 per year.  But the data include accidents and suicides, not just assaults.  In any event, 15 shootings per year are a miniscule fraction of the tens of thousands of traces of "ghost guns" now being reported by ATF annually.

This is not the first time ATF has manipulated trace data for political ends.  In the 1990s, in order to justify a ban on "assault weapons," it was charged with creating the impression that criminals prefer them.  Its Forward Tracing Program entailed getting information from manufacturers on the subject firearms and "tracing" them to the retail dealers.  Then they told the public that the designated firearms were disproportionately used in crime based on them being traced so much.  I document this cooking of the books in America's Rifle, chapter 14.

It goes without saying that the issue before the Supreme Court in VanDerStok is purely legal: does ATF have authority to expand the definition of "firearm" enacted by Congress and thereby to criminalize activity that Congress did not make unlawful?  Contrary to government claims, there is no "urgent public safety and law enforcement crisis posed by the exponential rise of untraceable firearms…." But even if there is, it's a matter for Congress, not the agency, to address.