On May 8, in response to an executive order from President Biden, the Department of Justice proposed a new rule to limit the proliferation of “ghost guns,” or firearms that do not have a unique serial number. On the latest episode of Policy Outsider, Rockefeller Institute Project Coordinator Nicholas Simons explains what is in the new rule, how it may impact the use of ghost guns, and the next steps for finalizing the rule. The episode also covers Simons’ recent policy brief, Ghost Guns: A Haunting New Reality, and provides background on what ghost guns are, their increasing prevalence in law enforcement seizures, and what policymakers at the state level are doing to clarify and strengthen policy surrounding their use.
Guest:
Nicholas Simons, Project Coordinator, Rockefeller Institute of Government
Learn More:
Ghost Guns: A Haunting New Reality
Transcript was generated using AI software and may contain errors.
Alexander Morse 0:05
This is Policy Outsider. I’m Alex Morris. On May 8th, following a directive from President Biden, the Department of Justice proposed a new rule to limit the proliferation of ghost guns or firearms that are typically assembled in private and do not have a unique serial number. Today, we’ll be speaking with Nick Simons, project coordinator for the Rockefeller Institute’s Regional Gun Violence Research Consortium. Nick recently authored a policy brief for the institute titled Ghost Guns: A Haunting New Reality, which provides background on what ghost guns are and what policymakers at the state level are doing to clarify and strengthen policy surrounding their use. On this episode, we’ll discuss what’s in the new federal rule, how it may impact the use of ghost guns, and outline the next steps for finalizing the new rule. Coming up next.
Alexander Morse 1:23
I’m here with Nick Simons of the Rockefeller Institute and project coordinator for the Regional Gun Violence Research Consortium. Nick, thanks for being here today.
Nicholas Simons 1:30
Thanks for having me on Alex.
Alexander Morse 1:32
So President Biden has signaled that curbing gun violence is a priority for his administration. And just recently, the Department of Justice released a proposed rule updating the definition of a firearm, specifically to address ghost guns. Nick, you recently wrote a policy brief on the matter for the Institute. And so we’re glad to have you on to talk about your latest piece and what the new federal rule will mean for gun policy in the United States.
Nicholas Simons 1:59
Thanks, Alex. Again, I’m happy to be here and happy to chat about what I was able to write for the Institute. I think it turned out really nicely. Just some table setting stuff. We have a gun violence dashboard that has some data points on gun violence statistics and things like that. The most recent statistics from the CDC show that gun deaths remained at a near 40 year high in 2019, with over 39,000 deaths per year that was about 24,000 suicides and 14,000 homicides. Based on the amount of violence around the country in 2020 that number is expected to go up. So that’s useful context when we start talking about ghost guns and how they’re used in crime. Similarly, NICS checks, which is the National Instant Criminal Background checks system and are sometimes used as a proxy for gun sales, those rose from 28 million to almost 40 million between 2019 and 2020. That’s a 43 percent increase. In the first four months of 2021, there are already been 16 million checks. It’s clear that people are continuing to buy firearms. And it’s likely that now that this proposed rule is is coming out, people will, again, try to get ahead of the curve and try to get as many firearms as they can before the new regulations come out.
Alexander Morse 3:14
What is the attributing factor? Why are people going out to buy more guns?
Nicholas Simons 3:19
I think that’s a combination of a lot of factors. Like I said, as people start to see more federal action on firearms, they start to get worried that it will make it harder to buy firearms. I don’t know if there’s necessarily one contributing factor. But as it relates to ghost guns, at least, there’s definitely a feeling that as new federal regulations come down, it’s going to affect how current buyers are purchasing ghost guns and it could we could see a surge between when the proposal comes out now and when it’s actually final.
Alexander Morse 3:50
So then let’s pick up on ghost guns then. You mentioned they’re growing problem. Why are ghosts a problem? Why is the Department of Justice and President Biden focused on addressing this?
Nicholas Simons 4:00
So broadly, ghost guns, for folks who may not have yet read the brief or may not be familiar, are broadly untraceable firearms usually made in the home that don’t have unique serial numbers like traditional firearms do. Without a serial number, the law enforcement agencies, police departments are typically unable to identify the manufacturer or the retailer or the owner of that particular firearm if it’s recovered in a crime. There’s several different types of ghost guns. The two that we’re going to be talking about today that are most frequently discussed are 3D printed guns and guns made from pieces called 80-percent lowers, which are usually included in these homemade weapons kits. Ghost guns are sold by unlicensed dealers usually online. There’s no background checks required with their purchase. They’re far cheaper than purchasing a traditional firearm through a licensed dealer. New York alone has seen a 480 percent increase in ghost guns recovered in crime over the last three years, starting at just 38 ghost guns recovered in 2018 and jumping up to 220 last year in 2020. It’s a big jump, it’s 480 percent. Plenty of other states have seen similar increases. But in this proposed rule from Biden’s Department of Justice, they estimate that ghost gun recoveries across the nation are up 400 percent. In the last five years, 400 ghost guns have been used in homicides across the country during that time. With the proposal that we’ll talk about today, they’re hoping to fill in some of those gaps.
Alexander Morse 4:00
So ghost guns are guns that you can buy pieces individually or separately, and privately assemble them in the home. You mentioned that they lack a couple of qualities of traditional firearms like a serial number. So walk us through the importance of the serial number.
Nicholas Simons 5:43
There’s legislation on the books that mandates all firearms made domestically and firearms that are imported are required to have a serial number. That’s the Gun Control Act of 1968, passed by Johnson, initially prompted by the assassination of John F. Kennedy in 1963. And then subsequently, by the assassinations of Martin Luther King, Jr. and Robert F. Kennedy in 1968. The law broadly regulated interstate and foreign commerce of firearms and created a list of prohibited persons that were restricted from possessing firearms. It established the federal firearm license system, the FFL, that licensed companies and individuals to sell firearms and, to your question, it mandated that all firearms that were imported or newly manufactured domestically by these licensed manufacturers should bear a serial number. The serial numbers are absolutely crucial in criminal investigations and can tell law enforcement a great deal about the weapon. As stated previously, it allows the investigating body to connect the firearm that’s recovered to the manufacturer who made the gun, the retailer who sold it, the first owner of that gun, and then any subsequent transfers should there be any. But to this day, that legislation, the Gun Control Act of 1968, is the most substantial piece of federal law on gun violence. And it was enacted 53 years ago now. A lot has changed since then. Firearm technology has changed since then. So it’s good to see more federal action.
Alexander Morse 7:07
In your policy brief for the Rockefeller Institute, you explained that there are two different types of ghost guns and we’ve mentioned them here on the podcast already. It was the 3D printed gun and another form called 80-percent lowers. Can you explain what both of those are?
Nicholas Simons 7:24
Sure. So, just briefly, 3D printed guns are what they sound like they are firearms made with commercially available 3D printers. If you’re making a firearm in your home using one, all you really need is the computer code to feed into your machine, the instructions essentially. Here in New York, our Attorney General Tish James has been very active in restricting the sale and download of these codes as have other AGs. With that said, 3D printed guns aren’t necessarily as prevalent in crime as 80-percent lowers are. In the last three years, authorities in New York State haven’t recovered any 3D printed gun to crimes. They’ve all been these 80-percent lowers. So what those are, these 80-percent lowers, are the key piece that are included in homemade weapons kits. The 80-percent lower itself is an unfinished frame or receiver, basically the lower half of a handgun or a long gun but one that’s unfinished. If that frame or receiver was finished, it would be considered a firearm by the ATF under existing regulation. Before we talk about this proposed rule, the ATF is the Bureau of Alcohol, Tobacco, Firearms and Explosives and it’s the federal agency that regulates firearms as part of the Justice Department. These unfinished frames and receivers have not yet reached what they call the stage of manufacture to be considered firearms. So like we said at the top, they don’t require serial numbers, they’re just parts. The process of turning these unfinished parts into a firearm is quite simple. Drill a few holes, buy some other pieces of the firearm like the trigger, and then assemble it in your home. In most cases, it can take less than an hour and after that the assembler has a fully functioning firearm that’s reminiscent of a traditional firearm without a serial number. The bottom line is that when apart these pieces aren’t yet considered firearms but can easily be turned into one when assembled. This is one of the areas that the new proposed rule addresses quite comprehensively and we’ll get into that.
Alexander Morse 9:11
No wonder, I think you said it was an estimated increase of 400 percent of ghost guns?
Nicholas Simons 9:17
In the in the proposed rule that was released, they included data from 2016 all the way up to 2020 that showed about a 400 percent increase in ghost gun recoveries nationally. And that was the first time that at least I was seeing a national number. We were lucky to have some state findings but the ATF had not yet come out and said how many ghost guns they had seen recovered in crime. What I think is important here is we don’t have a lot of data on ghost guns and how many are in circulation. Even that data that was released is just these ghost guns that have recovered in crimes. There’s nothing available about how many ghost gun kits are sold or how many are made. It’s only when they’re recovered by law enforcement that people know that they exist. Traditional firearms with serial numbers, on the other hand, can be traced from the moment that they’re manufactured. You can see exactly where that gun has been. You can trace the entire process, which is what happens in a criminal investigation. It’s what happens when law enforcement find a firearm on the ground and they need to attach it to a suspect.
Alexander Morse 10:23
Okay, thanks Nick for defining the problem surrounding ghost guns. Let’s move on to this new proposed rule from the Department of Justice. About a month ago, President Biden announced executive actions to regulate ghost guns and curb gun violence. What happens next?
Nicholas Simons 10:41
Well, so he announced several things. He announced a large investment in community violence interventions, he ordered his Department of Justice to publish model red flag laws, extreme risk protection orders for states that don’t already have them to take them up and make their own state legislation. He nominated David Shipman as director of the ATF, which is a federal agency that’s been 15 years without a permanent director. So that would be a big step. He announced a new ATF annual report on gun trafficking. It’s been 20 years since the last report at that level. And most importantly, as we’ve been talking about here, he ordered the Justice Department to publish a proposed rule on ghost guns, which they released over the weekend. From a high level, that proposed rule amends the ATF regulation that defines a firearm to include ghost guns and more specifically to include these at home weapons kits. Important to note here, compared to what you can do legislatively, executive action is far more limiting on gun violence just in terms of the amount of problems you can solve. That’s what’s really interesting about this proposed rule is that it’s one of the things you can do and it’s really impactful.
Alexander Morse 11:48
So what might the immediate impact be for this new rule?
Nicholas Simons 11:52
The goal of the rule itself is to reduce gun violence. And as ghost guns become increasingly used in crime, one way to stop that usage is to impose restrictions on manufacturers, sellers, buyers, etc. Every piece of the equation. With this proposed rule, manufacturers of ghost guns must now be licensed under that FFL system that I mentioned earlier. So you’re asking about the impact, I’ll walk you through just a few pieces of the proposed rule and talk about it that way. Sellers must now keep their sales records indefinitely. Whereas before, these unlicensed manufacturers and online sellers didn’t have to keep or report their sales records. So authorities really had no idea who these parts were going to. Unfinished frames and receivers, the parts sold in these kits, these 80-percent lowers must now have a serial number as they’re considered firearms, following this amendment to the definition. That helps law enforcement to trace these weapons all the way back to manufacturers. That’s what happens when they’re found in a crime is that you can go to the ATF as a police department and track the gun back to its inception. That was something you couldn’t do with ghost guns. So that’s huge, that’s a big impact. Because they’re now required to be sold through an FFL, a federal firearms licensed dealer, the buyers of these kits must pass a background check. The absence of a background check was one of the main selling points beforehand for these online vendors. Serialization and some of the other requirements extend to firearms produced using additive manufacturing, which is a professional way of saying 3D printing. A lot of the provisions that I just spoke about also apply to 3D printed guns. The rule also updates some outdated definitions of items in the in the gun violence space and terms that hadn’t been updated since 1968. Things like redefining gunsmiths, frames and receivers, and silencers to align more closely with new technology. Because as I said, it’s been 53 years, so there were a lot of pieces to that bill that needed tweaks and updating. The impact is going to be big. I mean, there’s existing state laws that now this federal regulation will be doing similar things. So if an existing state law says you need to serialize your weapons kits, now, that’s going to be the same for all states now that the federal government is getting involved. So it’s a big impact. It’s a relatively large and wide sweeping rule. They did a nice job.
Alexander Morse 14:19
So it sounds like this rule, mandating manufacturers have to include serial numbers or that sellers have to keep their records for when they sell it, that’s really going to aid law enforcement in being able to track down who’s using firearms, who’s committing gun crimes. But how will this impact the law abiding citizens making their own firearms at home?
Nicholas Simons 14:40
I’ll address both parts of the question. Quickly again on law enforcement, this makes their work a lot easier. I already mentioned the tracing technique but once they have information on the owner, they can connect a gun that’s recovered in a crime to a suspect in criminal investigation. Before they would have trouble discerning whose weapon it was. This gives them someplace to start. It can also identify firearm traffickers. So if you see that lots of weapons recovered in New York are consistently traced back to North Carolina or Georgia, law enforcement can then start identifying persons or dealers connected with those illegally trafficked firearms. Broadly, it can it can help in determining larger networks of firearm movement. To put that into context. Before this, ATF was only able to complete traces on 151 of the 24,000 privately-made firearms, which is another way to say homemade firearms that they recovered since 2016. So that’s less than 1 percent. Now that this proposed rule will be final, they’ll be able to trace nearly all of them. You also asked about folks making firearms at home, broadly. So at the federal level, it’s legal to make firearms at home for your personal use, if not for sale or distribution. DOJ made it very clear that nothing in this rule would preclude persons from making their own unmarked firearms at home for personal use. So now that these kits are to be serialized, people interested in making unserialized firearms at home for personal use would have to buy more granular pieces and do a bit more work. However, this is where states can come in and propose stricter regulation if needed. In fact, several states with existing ghost gun laws already restrict that practice to some extent.
Alexander Morse 16:24
Okay, so sticking at the federal level then, what happens next with this proposed rule?
Nicholas Simons 16:30
That’s a good question. Once the rule is finally posted to the Federal Register, the public will have 90 days to comment. People can either offer suggestions to improve the rule or they can argue against it. Ninety days is longer than usual. It’s usually only a month or two, which means I assume they expect lots of comments. The public can submit comments through an online platform directly to the agency. It’s also more common now for agencies to host webcasts to solicit feedback. So I wouldn’t be surprised if DOJ and ATF did something like that. After that the Department of Justice needs to change the rule. If they receive a certain amount of comments that are substantive and they feel they need to do so, they will change the rule. Once that amendment processes is over, the rule will become final after 30 days of that amendment process being included. There’s no real way to calculate what that might be. It’ll be based on the comments that come in. But broadly, we’re looking at a fall timeline.
Alexander Morse 17:29
What other actions can be taken between now and then to supplement, augment, or even detract from the ruling?
Nicholas Simons 17:39
Congress could pass legislation further restricting the purchase, possession of ghost guns. Though, looking at other gun violence legislation being considered like universal background checks, it’s not clear to me that the Senate is willing to pass legislation like this. That said, there have been efforts in the past to legislate ghost guns, most notably in the 2019-2020 session. But those bills didn’t make it out of committee. So in all likelihood, I think this is the extent of federal action at this time.
Alexander Morse 18:06
All right. So now let’s look at the state level. What are some states doing and what moves are they making to strengthen these gun policies surrounding ghost gun specifically?
Nicholas Simons 18:17
As it stands, eight states and DC have already enacted laws addressing ghost guns in some manner. In 2021, eight state legislatures have already introduced bills on ghost guns, including some of those states that had already had laws on the books and looking to strengthen them. Virginia was the first state to regulate ghost guns, specifically, plastic firearms or 3D printed weapons all the way back in 2004. As recently as last year, Hawaii, DC, Rhode Island, they all passed new ghost guns laws in 2020. And a good amount of what is in these state laws will now be in the federal regulation with the new rule, things like serializing unfinished frames or receivers, requiring background checks on purchasers. But some go further, DC bans the registration, sale, and possession of all ghost guns. So it’ll be interesting to see if these states amend their definitions of ghost guns now that many of the kits will be considered firearms at the federal level. Here in New York, there are two bills that have passed the Senate, each in the last two sessions. One is the Scott J. Beagel Unfinished Receiver Act and the other is the Jose Webster Untraceable Firearms Act. Those bills do similar things. They redefine gunsmiths. They require the serialization of these 80-percent lowers and they require their registration with the Division of State Police. And it’s something that could meaningfully reduce the number of ghost guns in New York and, subsequently, their frequent use in crime. It’ll be interesting to see what the interplay of the new federal regulation is with some of these state laws that have not yet been fully passed. As I mentioned, nine states already have some on the books but it’ll be interesting to see how state legislatures react to the federal action and to see how it can be supplemented. I think there’s another avenue to briefly discuss as well, which is in Pennsylvania. They did something a little bit different. Their attorney general Josh Shapiro issued a legal interpretation of existing state laws in Pennsylvania that would expand the definition of firearms to include ghost guns. So rather than having the state legislature pass a new bill, they just tweaked the laws that were already on the books. This can be an interesting avenue to consider for states where the legislature may be hesitant to act beyond this federal rule but it’s definitely a different avenue, it’s a different way to go after it.
Alexander Morse 20:38
Now, when you say they tweaked the laws, do you mean they issued guidance? So there’s room for…
Nicholas Simons 20:43
No, the state attorney general issued a legal opinion basically saying that the way that our laws are written, it can now extend to… I believe in Pennsylvania, their law defines firearms to include frames and receivers. So basically, all they did by issuing a legal opinion was include the word unfinished in front of frames and receivers. I’m not exactly sure how the process works, if the AG can just write it and then it becomes active. But essentially, the long and short of it is that they tweaked existing laws without having to go through a legislative process to include these homemade firearms.
Alexander Morse 21:19
Gotcha. Thank you. So you’ve helped set the stage for what the problem is, what’s going on at the federal level, and what some states are doing different approaches to trying to curb gun violence. But as with any type of policy, there’s always going to be some unforeseen challenges. What might they be in this gun policy world?
Nicholas Simons 21:37
Specifically with this proposed rule, I think that’ll be interesting to see, with any federal action, either legislation or regulation, you’re always going to have to consider the gaps. What area affects this issue that we are not fully addressing by the actions being taken? This proposed rule is, I’ve said it before, it’s pretty comprehensive more so than I was expecting. The Department of Justice and the ATF were, frankly, smart to update some of the antiquated definitions of firearm parts to include new technologies. But that’s a key point. What about new technologies that aren’t in frequent use right now? It was 53 years since the Gun Control Act of 1968 for them to update some of these. Will it be another 53? I hope not. If new technologies emerge? Will 3D printing technology change as a way to avoid this new rule? Are there pieces of the ghost gun issue that will only be revealed during implementation? I think now that folks know this rule won’t be final for several months, will there be increased demand for ghost guns before the new regulation starts? I don’t know if these challenges are necessarily unforeseen. I would hope that they’re being considered as they write a proposal like this but they’re definitely something to think about. This could make for an interesting policy experiment. If the gaps appear, it’ll likely fall to states to act and fill them rather than the DOJ drafting another rule. But we’ll see. I think state and local governments can always act as a laboratory. That’s the whole idea of federalism. If a policy works at the state level, hopefully it’s elevated. And for now, I think this is a huge step in the right direction and I commend the Biden Administration for acting and keeping one of their gun safety promises.
Alexander Morse 23:25
Thanks again to Nick Simons, project coordinator for the Rockefeller Institute’s Regional Gun Violence Research Consortium. Check out expert analysis from the Consortium’s gun violence researchers by visiting our website, rockinst.org/gun-violence. You can also follow along with the Consortium on Twitter by searching @RockGunResearch. Thanks for listening. I’m Alex Morse. Until next time.
Alexander Morse 24:30
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