Unfinished firearm frames and receivers can no longer be sold alongside the tools used to complete them.
President Joe Biden’s “ghost gun” kit ban went into effect on Wednesday after a federal judge declined to block the regulation. The suit, brought by Gun Owners of America, was backed by 17 Republican Attorneys General. Chief U.S. District Judge for the District of North Dakota Peter D. Welte, a Trump appointee, said on Tuesday the plaintiffs failed to show a preliminary injunction to prevent the rule from going into effect was necessary.
“[I]n this Court’s view, the Final Rule was and remains constitutional under the Second Amendment,” Judge Welte said in his opinion.
The decision empowers the ATF to enforce the new rule, which makes it a federal felony to make or sell a kit without a federal license and marking the unfinished frame or receiver with a serial number. The move is part of the Biden Administration’s attempt to expand federal gun regulations through executive actions. Biden has argued treating unfinished parts as though they were functioning firearms is necessary in order to ensure background checks are conducted on those buying the parts kits and filter out potential criminals.
Gun-control advocates cheered the implementation of the new regulation.
“Ghost gun manufacturers just lost their fight to allow criminals access to the untraceable firearms turning up in record numbers at crime scenes, which endangers our communities and law enforcement officers,” Shannon Watts, founder of Moms Demand Action, said in a statement. “Our army of grassroots volunteers has fought for years to address the deadly rise of ghost guns in our communities. Finalizing and implementing this critical regulation will help save lives.”
Gun-rights advocates, on the other hand, worked to block the rule because they viewed it as an infringement on Americans’ ability to build their own firearms, a tradition dating back to before the founding era.
“Despite the ATF acknowledging serious issues with their preliminary rule, this anti-gun administration has made clear that they would not be deterred in going after ‘ghost guns’ one way or another,” Sam Paredes of the Gun Owners Foundation said in a July statement. “We are confident that our challenge to this final rule has serious merit and that we will ultimately prevail in having it dismantled as unconstitutional in federal court.”
The gun-rights advocates argued the rule is based on an old theory of constitutionality that’s now obsolete after the Supreme Court’s recent decision in New York State Rifle and Pistol Association v. Bruen. Judge Welte rejected that idea, though.
“[T]he question is whether the Final Rule would pass constitutional muster post-Bruen where, as the Court reads Bruen, an individual’s right to keep and bear arms for self-defense may not be arbitrarily denied by a state,” he said. “From the outset, however, it is crucial to note the Final Rule concerns the commercial sale of firearms. The Final Rule does not infringe on any individuals’ or business’ ability to completely manufacturer a firearm for personal use, nor does it restrict the ability to obtain the weapon kits at issue. Instead, the Final Rule simply requires serialization of a firearm, when in the stream of commerce, so that it may be tracked in the event a crime is committed with the firearm. There is a longstanding distinction between the right to keep and bears arms and commercial regulation of firearm sales.”
Eric Tirschwell, executive director of Everytown for Gun Safety’s law division, said the rule vastly expanding the ATF’s authority is in line with the spirit of federal gun laws.
“Federal law broadly regulates not just finished guns but also gun building kits and the key components of firearms that can readily be converted into working weapons,” he said in a statement. “The gun lobby’s profit-driven argument that the ATF exceeded its authority or violated the Second Amendment was simply wrong – and we’re glad the court recognized this.”
Arizona Attorney General Mark Brnovich, who led the effort to recruit state attorneys general to oppose the rule, argued the agency has usurped Congress’s lawmaking abilities.
“The ATF is attempting to overshoot the authority granted to it by Congress,” he said. “The rulemakings are unconstitutional, impractical, and would likely put a large number of parts manufacturers out of business.”
Ultimately, Judge Welte sided with the ATF.
“Without a doubt, this case presents divisive issues that all parties care about deeply and that are of national concern and importance, as demonstrated by the participation of nearly every state in this country in this action,” he said. “Nevertheless, the Court’s role and responsibility remains the same—to apply the law to the facts (and not the arguments or policy) of each case. After doing so here, the balance of the Data phase factors do not weigh in favor of granting the Plaintiffs a preliminary injunction.”
Gun Owners of America has not announced whether it intends to appeal the decision.