New "Ghost Gun" Regulation May Be Illegal

WASHINGTON - May 8, 2021 - PRLog -- The Justice Department's [DoJ] new proposed regulations for "ghost guns" - i.e., guns made from kits the allow buyers to assemble firearms, and guns made using 3D printers - to require retailers to run background checks, and to force manufacturers to include a serial number to help trace such devices, may run afoul of a recent federal appeals court decision which sought to rely upon the same tactic of more broadly defining a statutory term, suggests public interest law professor John Banzhaf.

In order to accomplish its goal, DoJ would very substantially expand its regulations defining the statutory term "firearm" - and the related terms firearm "frame or receiver" - to include many smaller parts which could go into the assembly of a gun.

But when this agency tried to use the same tactic - dramatically expanding a statutory definition to give it more power to regulate firearms - the 8th Circuit Court of Appeals shot it down.

In Gun Owners of America v. Garland, the federal appeals court invalidated the Trump administration's modest efforts at gun control; holding that a rule by the ATF banning "bump stocks" - attachments which permit rifles to be fired rapidly somewhat like an automatic weapon - went too far.

In that case, the administration's attempt to classify bump stocks as "machine guns", so the agency could regulate these devices, went too far, and the agency's interpretation was held to be no longer entitled to the traditional deference accorded decisions by the executive branch, says Banzhaf, who teaches the laws governing federal agencies.

So this new proposal to reclassify gun parts, or possibly even instructions for 3D printers to create these parts, is likely to run afoul of this new court precedent, since such a broad expansion of  well understood terms ("firearm" and firearm "frame or receiver"), and its drastic consequences and expansion of federal regulatory power, would seem to be far more objectionable, both legally and by the gun industry, than the more modest effort to simply classify bump stocks as machine guns.

The same problem, and legal objection, would seem to apply even more strongly to this new attempt to redefine "firearm," says Banzhaf.  As the Gun Owners court explained:

"Congress could amend the statute tomorrow to criminalize bump-stock ownership, if it so wished. . . .But as judges, we cannot amend [the statute]. And neither can ATF. This is because the separation of powers requires that any legislation pass through the legislature, no matter how well-intentioned or widely supported the policy might be."

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