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.

Comments

[JonFrum]

The last sentence - following on the penultimate - says everything you need to know about this subject. Congress makes laws - the Executive enforces them. The Executive branch should NEVER make law. It doesn't matter how good the reason is. It's up to Congress to do what THEY consider necessary. Not the White House.

[Mr. Wheat]

Remind me again who the majority of Reason "Senior Editors" voted for?

[ObviouslyNotSpam]

Someone who hasn't suggested "terminating" the Constitution?

[Dan Schiavetta]

I don’t think the Framers imagined our present situation, where one Party is so determined to prevent Congress from functioning that they vote against things they support, simply because proposed by the Party in power. If someone can find a pre-1993 example of this, let me know.

[Michael P]

FDR's attempt to pack the court is instructive: https://www.smithsonianmag.com/history/when-franklin-roosevelt-clashed-with-the-supreme-court-and-lost-78497994/

[Dan Schiavetta]

No, that is not a pre-1993 example. Democrats were opposing their own Party's President. Try again.

[Michael P]

Maybe you should explain when you think any party has ever voted against something it supports, then, so that we know exactly how narrowly and weirdly you are defining your search query.

[Brett Bellmore]

I gather his and Sarcastr0's position is that, once you've put anything, anything at all, in a bill that a party might like, they're obligated to vote for it regardless of whatever else is in the bill.

[Sarcastr0]

Strawmanning that hard is a sign the argument is not one you like to think about much.

I explicitly said compromise was out of the scope of my thesis.

You do not understand the difference between electoralism and policymaking, and that's fucking tragic.

[Brett Bellmore]

It's not strawmanning. Every real world example of Republicans "vot[ing] against things they support, simply because proposed by the Party in power." is actually a bill that contains things Republicans oppose, too.

[Sarcastr0]

These are bills *entirely written by Republicans*

The only way it could get more purely of Republican equities is if Trump himself wrote it and...that would not be a model of good drafting I suspect.

[Brett Bellmore]

Let's see your "bill entirely written by Republicans".

But I'm going to bet if you can produce any such thing, it was written by some RINO who knew quite well they were drafting legislation almost all of their colleagues opposed. Not by "Republicans" in general.

[Jason Cavanaugh]

You have a prepared excuse to justify every idiotic conspiracy you believe in.

JFC.

[Brett Bellmore]

Still haven't seen this supposed 'entirely written by Republicans' bill. Until it's produced, I'm assuming it's fictional.

[Brett Bellmore]

Well, trivially, they thought they'd avoided HAVING parties, so yeah.

But I rather expect that the concept of one faction in Congress thinking that their own objectives were SO important that any rules had to be tossed aside to achieve them would have been understandable to them.

What would have confused them is that faction hallucinating that their foes actually agreed with them and were just opposing them out of spite.

Let me explain this for the umpteenth time: If I say I like Rubens, and you make a sandwich with corned beef, rye, and shit, I'm not obligated to eat it no matter how many times you say that it was my idea we have Rubens. The presence of shit makes it a shit sandwich, not a Ruben, even if everything else is in there.

[Sarcastr0]

They literally accused each other of what you are describing - of having no honor and doing violence to the rules of then republic just set down.
And each side was right. The Founding was a chaotic time.

On the other hand, they both voted for what they thought was right when they had a chance.
The faction served their policy ends, bad though they may be. The policy ends did not serve the faction, so you never had voting against what they would have supported to screw the other side.

[Brett Bellmore]

Yes, and the Federalists were guilty as hell of what they were being accused of, as the Alien and Sedition acts demonstrated.

"The policy ends did not serve the faction, so you never had voting against what they would have supported to screw the other side."

And, you don't have that today, either. Despite Democrats pretending it happens any time they feel like attributing a Democratic program to Republicans in an attempt to guilt them into voting for it.

[Sarcastr0]

Yes, Brett, you DO have it today. The right sponsor a bill, (or the Dems sponsor a bill that aligns with their rhetoric) and they vote against if it looks like it might pass because they don't want to give the Democratic Party a win.

That's new, and it's party over country, period.

And that doesn't include your 'Dems are too evil to attempt to compromise with' which has happened before, and the side refusing to compromise has not the one treated kindly by history.

[Brett Bellmore]

Do I have to remind you, YET AGAIN, that once you put shit in a sandwich it's a shit sandwich, and nobody is obligated to eat a shit sandwich just because it's got corned beef in it, too?

[Sarcastr0]

This is the second time you've deflected to Dems bad.

Used to be the GOP tried like hell to get conservative policy wins and prevent liberal wins.

Now they sacrifice conservative policy wins to maybe prevent Democratic electoral wins.

Do you even see the difference?

[Brett Bellmore]

Just how many times are you going to pretend that people are obligated to vote on bills that have something they like in them, regardless of whatever else is in them? Do you have the slightest conception how stupid you’re coming across quadrupling down on that?

Say, hypothetically, Republicans proposed a bill to socialize health care in America, and it happened to include a provision calling for gays to be summarily executed in order to reduce the expense? Would Democrats, favoring socialized medicine, be hypocritical to vote against the bill?

Of course they wouldn’t! And neither is it hypocritical of Republicans to vote against Democratic bills that, while they may have some things in them Republicans would like in isolation, also have things in them Republicans are absolutely opposed to.

So, let’s see this real world example of a Democratic bill that allegedly just has Republican stuff in it, that Republicans inexplicably voted against. I say it doesn’t happen.

[Sarcastr0]

This does not address not what I argued. It argues against something I explicitly said I was not arguing.

I guess we're done here since this is like the third time you've taken out the same strawman.

[Brett Bellmore]

I guess we ARE done if you're not going to produce a bill number so that we can look at what's in the bill.

[Frank Drackman]

because the Framers were so stupid? they were better ed-jew-ma-cated than most of the contributors here, even if they didn't get a trophy every time they participated in something

[JasonT20]

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."

I'm curious. A kit that a teenager could assemble into a working firearm with the help of a YouTube video doesn't fit this definition?

[Brett Bellmore]

Smelting bog iron

Forging a gun

There, we have now established that swamps require FFLs to sell, and should have serial numbers engraved on them.

[JasonT20]

https://realghostguns.com/product/fgc-9-complete-build-kit-w-barrel-welded-bolt-files/

I didn't look up a video explaining how to assemble this, but look at the website and the statements made by the company there, and you'll kind of see my point.

[Brett Bellmore]

I'm not seeing the problem here: Absolutely nothing in that kit is legally a "gun". You have to 3d print the receiver, which is the only part of a gun that's "the gun" for legal purposes, even under the current BATF regulation that's being fought in court.

Maybe you don't think home manufacture of firearms should be legal? Take that up with Congress and Article V.

[JasonT20]

So, all a kit needs to do to skirt the law is to not include a part that someone has to 3D print themselves, which they can do easily? Are you trying to make my point for me that getting around firearm regulations is something any criminal or teenager can do with these kits? Maybe lacking some essential part that needs to be purchased or made separately doesn't fall under this new rule, but a "buy-build-shoot" kit that might only lack the simple tools needed, definitely should be considered a firearm for purposes of needing a license to sell, serial numbers on a specific part, etc.

Maybe you don’t think home manufacture of firearms should be legal?

This isn't about an individual making their own gun at home. It is about companies selling ready to assemble gun kits. That company literally calls itself "Real Ghost Gun Store" and is advertising how easy it is for people to assemble their own gun at home with their product. I have no sympathy for businesses or their owners that are obviously just trying to find loopholes in laws so that they can sell weapons without needing a federal firearm license. Even if they have some ideological reason to do that, rather than wanting to sell guns to people that ordinarily are prohibited from buying or owning them, making it easier for criminals to get guns so that they can give Uncle Sam the middle finger is still abhorrent.

Take that up with Congress and Article V.

If the Supreme Court does strike down this rule, then I want every Congressperson that would oppose legislation to close the loophole on record saying that they want it to be easier for people prohibited from buying or owning a gun to get one. And the same would go for every other regulation that protects the public affected by the new precedent.

[Sam Bankman-Fried]

This is my rifle. There are many like it, but this one is mine.
My rifle is my best friend. It is my life. I must master it as I must master my life.
Without me, my rifle is useless. Without my rifle, I am useless. I must fire my rifle true. I must shoot straighter than my enemy who is trying to kill me. I must shoot him before he shoots me. I will ...
My rifle and I know that what counts in war is not the rounds we fire, the noise of our burst, nor the smoke we make. We know that it is the hits that count. We will hit ...
My rifle is human, even as I [am human], because it is my life. Thus, I will learn it as a brother. I will learn its weaknesses, its strength, its parts, its accessories, its sights and its barrel. I will keep my rifle clean and ready, even as I am clean and ready. We will become part of each other. We will ...
Before Allah, I swear this creed. My rifle and I are the defenders of my country. We are the masters of our enemy. We are the saviors of my life.
So be it, until victory is America's and there is no enemy, but peace!

[Longtobefree]

Funny how in the fifties and sixties, it was zip guns made by every teenage gang member ever that were the problem.

[Noscitur a sociis]

Second, criminals don't typically buy guns from a licensed dealer, and thus their acquisitions cannot be traced.

I am at a bit of a loss to see how your conclusion follows from your premise. Obviously the results of the trace will only show who bought the gun from the FFL. But the police can then identify that person, who can tell them who they sold it to, and they can then interview that person, and so on. It's not going to work 100% of the time (if, for instance, they can't locate the original purchaser, or someone doesn't know what happened to the gun, or it was stolen), but that doesn't make it useless.

[Brett Bellmore]

The question is, what exactly is the utility of a gun trace?

The optimal case is, of course, where the purchaser is the actual criminal. <a href="https://www.atf.gov/firearms/docs/report/nfcta-volume-ii-part-iii-crime-guns-recovered-and-traced-us/downloadThis only happens 12% of the time. (Pg 26)

29% of the time the original purchaser can be identified, but the person who possessed it at the time of the crime remains undetermined.

58% of the time both are known, but this doesn’t imply that the trace actually identified the possessor!

You see, what we really want to know is, how often does tracing the gun actually contribute to solving a crime? The BATF doesn’t report THAT number. But I’ve heard that it’s vanishingly low; Many police departments have just given up on bothering, it so seldom contributes anything to solving crimes.

Who Owned That Gun? Many Police Agencies No Longer Check

"Brian King, a spokesperson for the 8th Judicial Circuit Solicitor’s Office, which prosecutes cases in four counties in the northwestern part of the state, said that the files police send to his office rarely contain trace reports.

“There’s no value for us in determining where or when a gun was purchased,” he said. “ATF would love it if all these other people would do all this other work. It doesn’t add any value to a case we’re making.”"

[Stephen Lathrop]

Last I remember, Congress had been forced by the gun lobby to vastly increase the difficulty of doing a gun trace, to make it inefficient on purpose. They passed a law to forbid entering gun dealers' records, including archival records from closed gun dealers, from ever being entered into a computer database. So every trace request requires a physical rummage through mountains of paper at some obscure site (not the National Archives) where the records are haphazardly stored.

[Brett Bellmore]

That's true: We were rightfully concerned that the record keeping requirement would be used to construct a federal gun registration list useful for gun confiscation.

Then Clinton alters the regulation for having a FFL in order to close most of the nation's gun dealers, (Who were mostly part time operating out of their homes, Clinton threw in a non-statutory requirement for a place of business separate from one's home.) in order to collect and centralize a lot of those records anyway. As well as illegally retaining background check records the Brady bill explicitly required be deleted after the check was passed.

Gun registration is a high priority for gun controllers for the same reason preventing it is a high priority for gun owners: It's hard to confiscate guns when you don't know who owns them.

But that only goes to the difficulty of conducting a trace, not the utility of conducting one, which is, for purposes of solving crimes, generally nonexistent.

[JasonT20]

That’s true: We were rightfully concerned that the record keeping requirement would be used to construct a federal gun registration list useful for gun confiscation.

So, fear of the hypothetical future Congress that authorizes the executive branch to start confiscating guns from law-abiding citizens is justification to make it harder to catch people that use guns in crimes now?

Maybe instead of being so afraid of slippery slopes, you should focus on making sure that the politicians you vote for now will respect all of the rights of all people. Or, you could continue to vote for politicians that will push the law and the courts in the directions that they want, all while those politicians complain about how the other side isn't respecting the supposedly fixed meaning of the Constitution.

[ObviouslyNotSpam]

The "gun lobby" forced Congress to pass a law, did it?

Do any other relatively tiny US industries wield such awesome power over Congress? (Or, one might wonder, larger US industries?)

[Brett Bellmore]

It's just projection. The modern gun control movement in America actually got its start as an intelligence agency operation; Handgun Control Inc was founded with the aid of the CIA, and 'ex' agent Edward Wells.

It's been acres and acres of Astroturf ever since. Even anti-gunners recognize this.

So they can't conceive of the fact that the opposition is genuinely grass roots, that gun owners genuinely don't want to have their rights extinguished. Not when all the groups on their own side are just slick PR campaign agency fronts funded by foundation money and laundered tax money.

[Noscitur a sociis]

A criminal leaves his gun at a "crime scene" (how often does that happen?)

Tell me you've never practiced criminal law without telling me you've never practiced criminal law.

[gormadoc]

Yeah, it's very common to read about criminals dropping the gun and running or throwing it out the car as they drive off.

[Frank Drackman]

It happened in Godfather 1

[Brett Bellmore]

One would tend to think this happens rather more often with guns the criminals know can't be connected to them, than with guns that have a purchase record pointing right at them.

But just "tend", since the criminal could be weighing the odds of the gun being found wherever they threw it against the consequences of it being found on them if they get caught. And your average criminal isn't terribly bright anyway, they frequently do self-destructive things.

Anyway, it absolutely does happen with some frequency. And not just in movies.

[Stephen Lathrop]

It’s not just criminals who leave guns at crime scenes. Cops and prosecutors sometimes do too. They carry untraceable guns which they call, “throwaways,” for that purpose. Especially useful if a cop shoots and kills someone in the mistaken belief he saw a gun. I learned this from a boyhood friend who became a senior prosecutor in a large jurisdiction. He showed me the one he carried. He seemed proud to have it. The reason to have the prosecutor carry the gun to the shooting scene was so the cops don't have to have it on them.

[Noscitur a sociis]

I notice Dr. Ed hasn’t been posting much lately. Nice to see someone picking up the slack.

[Brett Bellmore]

It's not like "throwaways" are some fabrication. One can argue about how common they are, but it does happen.

[Stephen Lathrop]

Halbrook may be a practitioner of creative credulosity, but he uses an objective standard. If it supports a pro-gun conclusion, it's good data.

[ReaderY]

It’s a defense lawyer’s standard. A defense lawyer’s job is to try to come up with some sort of argument that will advance the client’s interests. Defense lawyers often don’t have very good arguments available to them, but they have to try and come up with something anyway.

[ReaderY]

A defense lawyer has to come up with some sort of argument to advance the client’s imterests, even if there isn’t a particularly good one available. Mr. Halbtook is apparently trying to do his best with a very bad hand, as this particular agtempt at a policy argument isn’t a very convincing one.

[Brett Bellmore]

How convincing a case do you need?

1. The previous definition of "firearm" stood unchanged for 54 years.
2. The change was not a product of any statutory amendment.
3. The change subjects a large number of people to criminal liability.

Points 1 and 2 should be sufficient, point 3 just underscores that it's inappropriate to grant the agency any deference in a case like this.

It's true that the BATF would like to trace as many firearms as possible, ideally every last one. Doesn't mean that they have a genuine statutory basis for doing so, or that doing so would have any actual utility for any lawful purpose.

[Sarcastr0]

54 years?

You have poo poo’d that as insufficient time to instantiate a precedent constitutionally or statutorily.

[Brett Bellmore]

This is a regulatory interpretation of a statute which has been amended multiple times since, and never did Congress see fit to amend the statutory definition of "firearm".

It's true that I don't think long duration can validate an interpretation that is plainly contrary to text, but this one wasn't, unless you want to say it was too expansive to begin with.

[Sarcastr0]

You have in the past found the amount of time an interpretation has stood to be of zero moment unless it goes back to the literal Founding.

You're inconsistent.

[Brett Bellmore]

I'm a textualist, first and foremost, and if the interpretation is contrary to the text, I don't care how long it has stood.

But, yeah, go ahead and say I'm wrong to think Jim Crow was unconstitutional from the start no matter what the Slaugherhouse Court ruled. It won't hurt my feelings.

[John F. Carr]

"Off the street/underground market: 43.2%"
"Obtained from individual: 25.3%"

This needs more explanation. Is the statistic 25% identifiable individual and 43% unidentifiable individual? The gun off the street came from somebody, not literally the street.

[Brett Bellmore]

I see Captcrisis and Sarcastr0 still haven't produced an actual "*entirely written by Republicans*" bill opposed by Republicans out of partisan spite, for us to examine.