Virginia AG Mark Herring Signs Letter Calling on U.S. Attorney General Merrick Garland to Close “Ghost Gun” Loophole

“Ghost guns are can be incredibly hard to trace, making them easier for dangerous people to get their hands on them,” said Attorney General Herring. “My colleagues and I are urging the Attorney General to close this loophole to prevent more untraceable guns from being on our streets, potentially putting Virginians and their families at risk.”

Ghost guns typically start as “80 percent receivers” that are often sold in kits without background checks. Currently, ATF’s incorrect interpretation allows 80 percent receiver kits to be sold online and at gun shows throughout the country without background checks. They are also not required to use serial numbers, making them untraceable by law enforcement after being assembled.

The Attorneys General are calling on U.S. Attorney General Garland to issue a new interpretation of the Gun Control Act that will include 80 percent receivers in the category of firearms that require background checks.

In December 2020, Attorney General Herring filed an amicus brief urging the U.S. District Court for the Southern District of New York to compel the ATF to properly regulate untraceable, partially assembled “ghost guns.” In their amicus brief, Attorney General Herring and 18 other attorneys general argued that the ATF must correct its unlawful 2015 interpretation of the GCA and that ATF’s improper reading of the GCA effectively gave the green light for unlicensed online retailers to sell nearly-complete firearms that can easily be converted into fully-functioning weapons. They further argued that these “ghost guns” endanger residents and impede law enforcement’s ability to investigate and prosecute criminal activity.

From the 1980s through the early 2000s, ATF classified the core components of handguns and rifles—frames and receivers—as “firearms” subject to federal regulation if the components could be quickly and easily converted into functioning guns. In 2015, the ATF reversed course. Without offering any explanation for changing its position, ATF issued an interpretive rule stating that these rifle receivers and handgun frames were not considered firearms. As a result of this unlawful misinterpretation, an industry has sprung up in which unlicensed online retailers sell nearly-complete guns directly to consumers. These weapons, sometimes called ghost guns because they lack serial numbers and identifying marks, are untraceable and sold without background checks.

On August 26, 2020, Everytown for Gun Safety and four municipalities filed a suit against the ATF and the U.S. Department of Justice alleging that those agencies unlawfully concluded that ghost guns are not “firearms” under the GCA. In an amicus brief supporting the plaintiffs, Attorney General Herring and his colleagues are urging the court to force ATF to properly regulate ghost guns because:

• Ghost guns are prohibited by federal law: The GCA requires “firearms” to include serial numbers and purchasers of those weapons to pass a background check, among other requirements. Specifically, the statute defines “firearm” as “any weapon which will or is designed to or may readily be converted to expel a projective by the action of an explosive” or “the frame or receiver of any such weapon.” This clearly describes the nearly assembled guns these companies are selling, which are sold without background checks and not marked with serial numbers.
• Untraceable weapons threaten public safety: ATF’s unexplained interpretation emboldened the ghost gun industry and allowed it to rapidly expand across the country. Ghost guns were virtually absent from many jurisdictions prior to the adoption of the new interpretation. Now, according to a recent report, there are 80 online sellers of partially unfinished frames and receivers, and the increase in ghost un sales is readily apparent on the local level.
• Ghost gun dealers are using the ATF’s rule to mislead consumers: Companies that sell ghost guns have pointed to the ATF’s rule to claim their products are legal, disregarding numerous state laws that specifically ban the sale of these firearms.

Joining Attorney General Herring in sending today’s letter are the attorneys general of Connecticut, Delaware, the District of Columbia, Hawai’i, Illinois, Iowa, Massachusetts, Michigan, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington.