SAN FRANCISCO (CN) — The Bureau of Alcohol, Tobacco, Firearms, and Explosives asked a federal judge in California Tuesday to rule against the state in its suit seeking to compel the federal government to crack down on ghost guns.
Ghost guns are firearms that can be made at home from parts that can be purchased without background checks or serialization, and, according to the plaintiffs, have become the weapon of choice for criminals.
California, the Giffords Law Center to Prevent Gun Violence, and others sued the bureau in 2020, asking, among other things, for the court to order the federal agency to issue rules regarding “80%” receivers and frames — core components of a firearm that houses or provides a structure for other components of a weapon.
In 2022, the agency did issue a rule seemingly aimed at doing what the plaintiffs were asking. The rule expanded its definition of frames and receivers — which, importantly, are themselves considered firearms under the federal Gun Control Act — to include incomplete, disassembled, and nonfunctioning frames and receivers.
Several ghost gun manufacturers have filed lawsuits in other federal courts, challenging that rule’s validity.
But the plaintiffs, in their amended complaint filed that year, claimed that the new rule was insufficient to stop the proliferation of ghost guns.
“Though the final rule takes important steps to eliminate ghost gun-making ‘kits’ — meaning where 80% receivers or frames are sold together with other essential firearm parts, such as the magazine to store ammunition, and the jigs to assemble the firearm — the rule still permits the selling of unserialized ‘80%’ receivers and frames as stand- alone items without any background checks or serialization,” the plaintiffs say in their amended complaint.
In arguments Wednesday before U.S. Senior District Judge Edward Chen, attorneys for the federal government said it should be granted summary judgment on the plaintiffs' claims because they are unsubstantiated.
“They have no evidence of whether the type of products which are the subject of this disagreement are responsible for any of the meaningful injuries about which they complain,” Jeremy Newman, arguing for the defendants, said.
Newman said the government was relying on decades of classification letters that describe the difficulty of making weapons that are able to fire projectiles without necessary tools.
“The statute uses the term ‘frame or receiver’ and doesn’t define it,” he said. “That delegates to the ATF to define the receiver. ATF made a reasonable policy choice to consider the parts actually made by the seller.”
“But what if a tool is easy to get?” Chen asked. “Why exclude that?”
Newman said governmental agencies must prioritize clarity in their regulations and including factors like the availability of tools for modifying firearms would make the regulations too complicated.
Attorney for the plaintiffs Lee Crain said that ATF is trying to avoid accountability because none of Newman’s statements were in the administrative record. Crain said a weapon is defined as being designed to expel a projectile by the action of an explosive, and the government has not challenged the plaintiffs' position that the receiver can be a weapon.
“The question is, what is the product designed to do, and what is the product converted to,” Crain said. He said that the ATF seems to want to “ignore the market and ignore that test, in the interest of vagueness.”
“If they’re going to make a judgment, they have to explain it and it has to be in the administrative record. And there’s nothing to be found here,” he added.
Newman said that without being able to discharge a shot on its own, a weapon is not functional.
“To function as a receiver, you have to have a cavity to put this in. It’s clearly not designed to function,” he said.
Judge Chen said he was still confused as to why the bureau did not assess the availability of conversion tools in the market.
But he also asked the plaintiffs why the agency should not be allowed to take incremental steps to change regulatory policy.
Crain said that the “ATF is burying its head in the sand.”
“They know these products are available at other places in the market,” he said. “There’s no rational distinction in the ready convertibility of a product. They could do the analysis, they know how — they just refuse to do it.”
Judge Chen did not indicate when or how he may rule. Last February, the judge denied the federal government’s motion to dismiss, but ordered two individual plaintiffs be removed from the case.
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