AG Mark Herring Continues Fight For Better Regulation of “Ghost Guns”

In March, Attorney General Herring joined a coalition of 18 attorneys general in sending a letter calling on U.S. Attorney General Merrick Garland to close the loophole in the ATF interpretation of the federal Gun Control Act that allows criminals, domestic abusers, and other prohibited purchasers of firearms to evade common-sense gun laws and purchase 80 percent receivers, which can be easily assembled into un-serialized and untraceable ghost guns.

“’Ghost guns’ are almost virtually impossible to trace, making it much easier for dangerous individuals to get their hands on them,” said Attorney General Herring. “This loophole allows for more untraceable guns on our streets and in our communities, potentially putting Virginians and their families in danger. As attorney general, my top priority is always protecting Virginians, which is why I will continue this fight to stop the proliferation of these untraceable guns.”

The proposed rule, Definition of ‘Frame or Receiver’ and Identification of Firearms, updates the ATF’s interpretations of “firearm” and “frame or receiver” as used in the Gun Control Act of 1968 to clarify weapon kits and incomplete weapon parts, both of which can be easily converted into functioning guns, are covered by the Act. The ATF’s current regulations allow for the sale of weapon parts kits and certain weapon parts with no federal oversight, a loophole that certain manufacturers and gun dealers have eagerly exploited.

As the coalition of attorneys general explained: “Certain firearm dealers have capitalized on … loopholes [in the existing regulations] to market so-called ‘ghost guns’—meaning weapons kits or partially complete receivers that can easily be converted into unserialized, operable weapons—outside the Gun Control Act’s framework. As dealers highlight in their marketing, these ghost guns are unregulated and can be purchased by anyone.”

Attorney General Herring and his colleagues argue that the ATF’s current interpretation of these definitions under the Gun Control Act does not properly enforce the Act, therefore contributing to gun violence in Virginia. Law enforcement intelligence makes clear that ghost guns are fast becoming the weapon of choice for many groups responsible for neighborhood violence. This is because current regulations allow felons, violent criminals and others who cannot legally purchase a firearm to buy ghost guns.

The attorneys general go on to say in their comments: “For the Gun Control Act to work as Congress envisioned, the manufacture, transfer, and possession of firearms must all occur within the Act’s strictures. When any of that activity happens beyond the Act’s parameters, the Gun Control Act is ineffectual at ‘keeping guns out of the hands of criminals and others who should not have them and assisting law enforcement authorities in investigating serious crimes.’ …The Bureau’s non-enforcement of certain portions of the Gun Control Act has effectively created room for firearm manufacturers to openly defy the statute.”

The group of attorneys general explained that, to maintain the integrity of the Gun Control Act, the ATF must revise its regulations so that they encompass modern gun designs. The group also offered the ATF several suggestions to clarify the proposed rule and prevent future abuses by gun manufacturers.

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 the comments are the attorneys general of California, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Pennsylvania, Vermont, Washington, Wisconsin, and the District of Columbia.