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April 22, 2022

Ghost Guns Defined

By Ryan F. Sullivan

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DISCLAIMER: I am not a lawyer, and more critically I am not YOUR lawyer. If you read this article and decide that exploring homemade firearms is something for you, it is critical that you study and understand the laws that apply to your place of residence. While the current state of play on a federal level does not make fabricating your own firearm a crime on its own, the laws in play in some states can make doing so a serious crime, if not from the act itself then from related burdens and requirements. Failure to do the homework may expose you to serious personal jeopardy. Measure (the rules and regulations) twice, cut (the trigger pocket out of your 80% receiver) once.

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Here in Illinois, new legislation has been recently passed by the General Assembly in a dead-of-the-night vote to deal with the issue of ghost guns and clarifying the ghost gun definition. Having read the proposed Illinois ghost gun law, it’s a bit of a mess. It’s effectively going to ban private construction of firearms for personal use unless you get an FFL holder to log your new piece into their books (at a fixed rate of $35 or less for the service), treat unfinished receivers as firearms using an ill-defined standard of if it can be “readily completed,” and ban the transmission of 3D printer files for firearm receivers to anyone who isn’t a licensed manufacturer (1st Amendment challenge, ahoy!).

In short: this Illinois ghost gun law restricts law-abiding, FOID-card holding citizens from an activity that is legal on a federal level, while criminals are going to sashay across the border to Iowa or Indiana to buy their 80% receivers with cash, and Chicago will still suffer from the same plague of violence this legislation purports to address. Oh, and the rule makes no exception for guns that were legally made and sold before serial numbers were required, so anyone with one of those also finds themselves suddenly affected by this vague and far-reaching ghost gun bill.

Everyone’s been pretty fired up about ghost guns and trying to nail down a specific ghost gun definition lately, and as gun control causes go it’s gotten right up on the same tier with assault weapons in terms of being a “something must be done” situation. Most of what’s happening is at the state level at this point.

A while back I received a video of a California lawmaker trying to make a case for a ghost gun ban. He did this by

·        Emphasizing their "untraceable" nature.
·        Waving around a raw receiver casting and claiming it was an 80% receiver that could be finished at home with just a power drill (good luck cutting the threading for the buffer tube with a power drill)
·        Showing off a receiver that had clearly received multiple passes with proper machine tools and claiming all the work had been done with a drill
·        Conflating semi-automatic weapons with full auto ones, with the latter already being heavily restricted as a matter of federal law.

With information like this coming from legislators in a position of trust, there’s going to be confusion about what’s factual and what is not. Let’s clear a few things up.

Ghost Guns Definition

Going straight to Merriam-Webster’s website,  we see the ghost gun definition spelled out as “a gun that lacks a serial number by which it can be identified and that is typically assembled by the user (as from purchased or homemade components).”  The most famous face of the modern ghost gun is what sometimes gets called an “80% receiver,” an item that has undergone several manufacturing steps, but has not crossed a certain threshold to completion to properly be considered a finished firearm.

The ghost gun definition above has been around effectively forever. Not only because Americans have a strong tradition of in-home gunsmithing, but also because before Lee Harvey Oswald terminated a sitting American president with a Carcano carbine that was delivered to a post office box via mail order, there was no rule in the United States that non-NFA firearms (machine guns, SBRs/SBSs, tank guns, etc.) needed serial numbers. Manufacturers who serial number their products did so for their own internal records tracking, not because it was mandatory, and to this day there are still a large number of those pre-1968 firearms floating around sans serial number.

Unserialized sporting guns were common before 1968.

Lots of .22 caliber rifles, foreign military surplus weapons with equally foreign numbering schemes, and many more all technically count as “ghost guns” by the Merriam-Webster definition due to their lack of serial number. It also applies to guns that started life as normal, post-1968 weapons with serial numbers attacked with a grinding wheel by a dedicated criminal, an illegal act. This is why you should be careful listening to any news report claiming a spike in “ghost guns” being found at crime scenes, since they may be counting homemade weapons (legal, to a point), pre-68 weapons made or imported without a number (legal), and weapons with a defaced serial number (already illegal). Products like those from Polymer 80 are the famous face of the “Ghost Gun,” but they are far from alone.

This rare, developmentally significant prototype of the Colt Model 1905 was never intended for government or commercial sale, and thus does not bear a production serial number.

In other words, while politicians may be espousing the evils of homemade firearms, their presumed ease of creation, and their supposed prolific use in crime, there are a lot of other perfectly legal firearms that could get caught up in the proposed legislation.

How an 80% Receiver Works

As noted above, an “80%” frame or receiver is a piece of material that has had many steps performed towards legally becoming a gun, but isn’t there yet. Their unfinished nature means they do not meet the ATF definition of a firearm, and are often referred to as “receiver blanks” or “castings.”

As an example, let’s take a look at the offerings of Polymer80, a popular manufacturer of 80% receiver blanks. When you get their frame in hand you can see that there are several sections of solid material preventing the installation of critical components, a set of pinholes need to be drilled, and some “load-bearing” parts need to be added (as of this writing, P80 sells these components separately from the frame). Until these steps are done, it is physically impossible to make the frame act as a firearm.

To use a meat-based metaphor (with apologies to anyone who hasn’t eaten lunch yet), consider the many steps that exist between a newborn baby cow and an edible hamburger. You can walk into the grocery store and buy a pack of hamburger patties, where many of these steps have already been completed, but it’s up to you to take them the rest of the way towards making an actual meal; the meat isn’t cooked, and none of the other parts are included. An 80% frame is the firearm equivalent of an uncooked hamburger patty.

How long it takes to make an 80% frame into a firearm, depends on skill level and how you define a firearm. Going back to the hamburger metaphor, there’s a point where you really haven’t made a complete burger yet, but the patty is cooked enough that you could just eat the thing if you wanted. In much the same way, there’s a federally defined point in the manufacturing process where you cross the line into making a gun, even if it’s not possible to make it go “bang” yet.

From a layperson’s definition of “make a firearm” (read: to successfully put together something that will go “bang”), the total time is entirely in the hands of the person doing the build. For someone who knows their way around a drill and a Dremel tool, understands what is supposed to go where, and has the time to focus on the project, building up a DIY Glock clone can be a matter of a Sunday about the house. For someone who is less crafty, it might be a matter of days of stop and go as they do their research, source parts, and tools, and learn as they go. Or it might never be finished, if the maker cuts in the wrong place or places their drill at a bad angle they risk ruining the receiver blank.

Many officials and media outlets are now toting the line that such self-assembled firearms can be completed “in as little as 30 minutes,” a claim that makes me question their definition of “complete”, as well as how accurate the clocks are at CNN’s office.

What’s The Catch?

The catch is that if you build your own homemade firearm (aka “ghost gun”), the federal government gives the following stipulations:

A)     It must be made by you and for you only. No asking a friend for help during construction or paying someone to build it for you, and no passing it along to someone else once it’s done.

B)     You must still comply with the laws in your area.

Point A is a critical factor in play on a federal level. Most federal power over individual behavior derives from the concept of “interstate commerce”; once things start moving across state lines, it is federal jurisdiction. Most gun control laws hinge on this concept, and it’s flexible to the point where they can even apply in cases happening entirely inside a single state, or even transfers that don’t even involve monetary exchange, on the rationale that intrastate commerce influences and impacts interstate commerce. But if a gun emerges from effectively nothing and then is never passed on, it never enters into commerce, interstate or otherwise. Thus for the government to willingly not be involved in homemade firearms, their stipulation remains that you not put it in the flow of trade.

Point B is the main reason for the big disclaimer at the top of the article. The rules can and will change from state to state, and it’s up to the resident to know where the lines are and how not to cross them. For instance, we’ve written previously about Illinois’ Firearm Owner Identification (FOID) card system, but if you live in this state and want in on that sweet homemade gun action, you need your FOID lined up first. Meanwhile, over in New York State they register the handgun instead of the owner, so making a P80 and not doing that paperwork is a crime on its face. The less said about California the better, since they could more or less condense their entire ruleset to a single page marked “NO FUN ALLOWED” in big, bold letters.

Are Ghost Guns Untraceable?

Probably less than you’d expect, given the hype.

Let’s run a hypothetical scenario. A person, who we shall call Bob, is walking through a gun show when they spot a booth selling DIY gun kits. Bob has been looking to get a handgun, and decides that it would be cool to be able to say they’ve made their own, so they pull out their debit card and make the purchase. Heading home, they set to work, but lacking specific knowledge about gunsmithing he finds himself having to search for guidance for some of the steps online (especially when it’s time to get the guts of the gun installed). Toward the end, a few steps (like installing the sights on the slide) just plain work better with specialized tools so an order gets placed on Amazon. About a week later, Bob owns a semi-automatic pistol, and is ready to use the gun for legal purposes. So, who knows (or at least has a decent idea) that Bob has a new gun?

His bank, his cell phone provider, his ISP, Google, Twitter, Facebook, Amazon, and most anyone whose app is on his phone.

While extremely useful devices, the modern smartphone has also become something of a 24/7 corporate informant, feeding all manner of information to outside parties. For the most part, this information is just used to assemble a horrifyingly accurate picture of your inner life so they can best determine how to wrench money out of your wallet and piss you off on social media to get clicks, but it can be used for more ominous purposes.

U.S. Guide Lamp “Liberator” pistols were made without serial numbers.

Say for instance that the police take an interest in the vendor at the gun show and decide to snoop around. They can go to a judge and request what’s called a “geofence warrant,” a request to companies that run apps that detect/record location data to report on any users who were at a particular place during a particular timeframe. In a place as busy as a gun show, there’s going to be a lot of false hits from people who just wandered by, but they can screen for multiple passes through the same area or extended duration in the area; if Bob spent a good 20 minutes getting info from the clerk at the booth, wandered off to mull it over, and then came back 10 minutes before closing time, that’s going to look interesting.

Financial records are another surefire way to confirm that something happened. Say the cops start with the geofence warrant to get a shortlist of names (Bob included), and then move on to issuing warrants for financial records to the banks. When the report comes back on Bob’s records, there will be a purchase of a few hundred dollars showing up at the exact time that the phone records put A at the booth selling the kits. Further inquiries to the ISP or to the operator of the search engine Bob used can show that he was looking for instructions to finish out an 80% frame. Even companies Bob didn’t intend to do business with probably know, as many social media groups convince websites to let them put trackers on board so they can watch where people go and what they do.

None of that sounds as “untraceable” as politicians and media reports would have people believe.

Why Do People Want Laws for Ghost Guns?

Much ado is being made out of the fact that an unnumbered firearm can’t be tracked through the normal chain of commerce. With homemade guns in particular, it’s kind of a non-starter, since when you make a gun it’s supposed to be your gun, and shouldn’t be entering the chain of commerce without passing through gatekeepers like properly licensed dealers anyway. Selling guns as a business without the right papers is already a federal offense, as is moving a gun across state lines without involving an FFL holder or transferring a gun to an unauthorized person. For guns that had serial numbers but had them removed, recovery of that number through forensic science only tells you the last link in the lawful chain, and doesn’t reveal how it’s moved about since then.

So, bottom line, what is that serial number doing to keep you safe? Not much. The chief crime that can be detected with an intact serial number is straw purchasing, defined as the procurement of firearms through legal channels with the express intent to pass them to a restricted party. They could also be used to help solve crimes already committed by “amateur”/impulsive criminals who leave a legally, personally owned gun at a crime scene.

For guns introduced to criminal circles via theft, or firearms not abandoned at crime scenes, the number tells very little, and often less than the actual, captured criminal if they decide to give up their source of arms and ammunition in exchange for some manner of leniency.

The Future of Ghost Guns

That said, in contrast to the previous legislation discussed in our blog regarding AOWs, there seems a much higher chance of a restriction on “ghost guns” becoming law somewhere in the United States in the near future, regardless of the actual benefit for the public. With the phrasing of the Illinois ghost gun law in particular, no doubt we can expect involvement from the usual players on the pro-gun side, however the restriction on who may receive a digital file (for 3D printing those 80% parts) seems rife for response by organizations like the Electronic Frontier Foundation. Last year, for example, the 9th U.S. Circuit court ruled that ghost gun plans can be posted online.

The group has previously expressed concern about attempts to restrict things like 3D printed firearms resulting in an undesirable blowback on other expressions of personal liberty. Several collector’s organizations should also express concern about their legal, unserialized collectibles suddenly becoming contraband.

Ideally, the entire ghost gun bill would get thrown in the trash, but more likely certain elements will just get hacked out and the rest will carry forward; the fact that the bill’s authors directly wrote in a severability clause suggests that they already know that they’re reaching quite a bit on some of the language.

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