BLUF
Looking past the “frame or receiver” questions, 2A groups argue the quietest part of the new rule – requiring FFLs to store 4473 forms forever and then turn them in to the ATF once they close, after which they will be likely be digitized and made searchable – in effect, a backdoor gun registry, something forbidden by long-standing federal law, is the scariest.

NEW ATF FRAME OR RECEIVER RULE TAKES EFFECT

A controversial new rule that addressed “ghost gun” scaremongering went into effect on Wednesday even though federal regulators made last-minute tweaks to the rule two days prior.

Initially debuted with much fanfare by the Biden administration in May 2021, almost 300,000 public comments were logged by August 2021 on the published rulemaking in the Federal Register for the Bureau of Alcohol, Tobacco, Firearms and Explosives to change the definition of “Frame or Receiver.”

Attorneys general from some 41 states and the District of Columbia took an official side on the issue, roughly split with red states in opposition and blue states in favor of the change. Likewise, pro-Second Amendment groups slammed the rule as an unconstitutional overreach while anti-gun groups argued for its adoption, saying it was the only way to get “ghost guns” off the streets.

After eight months of digesting the feedback, ATF published the 98-page amended rule covering changes under federal law to the definition of not only a “Frame or Receiver,” but also to the definitions for a “Firearm Muffler or Silencer Frame or Receiver,” a “‘Split or Modular Frame or Receiver,” a “Partially Complete, Disassembled, or Inoperable Frame or Receiver,” a “Destroyed Frame or Receiver,” as well as adding a definition for the term “Readily” as in ‘”may readily be converted to expel a projectile” and other steps. It also changed how federally licensed dealers store their records – now stressing they had to be maintained forever rather than be destroyed after 20 years.

Published in the Federal Register in April 2022, the rule took effect on Aug. 24, 2022, even though ATF quietly added two pages of corrections and changes to the rule on Aug. 22. At least two lawsuits challenging the rule in court – one by Gun Owners of America and attorneys general from 17 states and another by the Firearms Policy Coalition – unsuccessfully sought injunctions to bar the rule from taking effect and are still pending.

As the rule is confusing, even for attorneys well versed in firearms law, it is hard to speak to exactly what changed, but here are some takeaways – and keep in mind that this is not legal advice.

ARE PRIVATELY MADE FIREARMS NOW ILLEGAL?

While the rule mandates that FFLs with a privately made firearm on the shelf must now add a serial number “not later than the seventh day following the date of receipt or other acquisition” and mark such guns in inventory before Aug. 24, 2022, in the next 60 days, there is no federal requirement for individuals to serialize personal, privately made firearms. As before, it is not a federal crime to make a non-NFA-regulated (e.g., not a machine gun, suppressor, SBR, AOW, etc.) firearm so long as the maker/owner is not prohibited from possessing firearms by law.

ARE 80-PERCENT LOWERS/KITS ILLEGAL NOW?

That’s a tougher one to answer. The rule included three examples of what is, and two examples of what is not, currently considered a frame or receiver:

Frame or receiver:

• A frame or receiver parts kit containing a partially complete or disassembled billet or blank of a frame or receiver that is sold, distributed, or possessed with a compatible jig or template is a frame or receiver, as a person with online instructions and common hand tools may readily complete or assemble the frame or receiver parts to function as a frame or receiver.
• A partially complete billet or blank of a frame or receiver with one or more template holes drilled or indexed in the correct location is a frame or receiver, as a person with common hand tools may readily complete the billet or blank to function as a frame or receiver.
• A complete frame or receiver of a weapon that has been disassembled, damaged, split, or cut into pieces, but not destroyed in accordance with paragraph (e), is a frame or receiver.

Not a receiver:

• A billet or blank of an AR-15 variant receiver without critical interior areas having been indexed, machined, or formed that is not sold, distributed, or possessed with instructions, jigs, templates, equipment, or tools such that it may readily be completed is not a receiver.
• A flat blank of an AK variant receiver without laser cuts or indexing that is not sold, distributed, or possessed with instructions, jigs, templates, equipment, or tools is not a receiver, as a person cannot readily fold the flat to provide housing or a structure for the primary component designed to block or seal the breech prior to initiation of the firing sequence.

Even if they are considered a receiver or frame, they can still be transferred via an FFL after a background check and 4473.

IS IT GOING TO MAKE A DIFFERENCE?

Well, the pearl-clutching gang has been hot and heavy bemoaning the effect of “deadly ghost guns” on American cities and have cited some pretty far-out numbers in reference to the quantity of said spooky boys in circulation as crime guns. However, those figures have been called into question and are tough to back up, with Lee Williams of the Second Amendment Foundation’s Investigative Journalism Project saying, “The entire crackdown on ‘ghost guns’ is based on a hoax that has been promulgated by ATF and Joe Biden,” after looking into the matter.

In addition, it would seem the new ATF rule only served to put further regulation on kits that include an 80-percent lower/frame as well as tools/templates in one package, not outlaw the sale of the incomplete blanks by themselves, at least under federal law. Going past that AOL dial-up level technology, there is a thriving 3-D printing community of enthusiasts that circulate files for making just about every type of modern small arm that can be imagined and, as they say, “you can’t stop the signal.”

Finally, with at least two cases still in federal courts on the matter, there is no telling how long the new rule will survive legal scrutiny. In a statement late Tuesday night, the GOA said they “are committed to appealing this ruling and moving forward with our case against this unconstitutional rule.”

As the rule is an executive branch decision, future administrations can scrub it completely or move to modify it. Conversely, if future Congresses determine the new rule sweeps too broadly, they could pass legislation scrapping the definitions or refining them, a move that would supersede ATF’s regulatory definitions.

Looking past the “frame or receiver” questions, 2A groups argue the quietest part of the new rule – requiring FFLs to store 4473 forms forever and then turn them in to the ATF once they close, after which they will be likely be digitized and made searchable – in effect, a backdoor gun registry, something forbidden by long-standing federal law, is the scariest.