SCOTUS and "ghost guns"

[44 AMP]

Of course I understand the information found in the mainstream press reporting on this is flawed, incomplete and biased, what I'm wondering about is mostly why the Supreme Court is taking the case at all.

Much is said in the press about ghost guns not having serial numbers (so they can't be traced if used in a crime) and about how buyers of the kits don't have to go through background checks.

What puzzles me is, that, if I understand things correctly, these things are already covered under existing law, and have been for generations.

Please correct me if I'm wrong but I believe Fed law has always allowed someone (who is not a prohibited person) to make (manufacture) a firearm, for their own personal use without a serial number being required (though it is recommended), and without having to have a manufacturer's license.

And as long as that gun stays in the possession of the maker those rules apply. When/if the gun gets sold, then all the normal marking requirements apply. The gun needs a serial number and the maker is the manufacturer and their name and address (city, country) has to be marked on it.

You cannot legally make the guns FOR SALE unless you possess a manufacturer's license.

SO, if you make a gun, and sell it, all the normal rules apply when you sell it.

And if you buy a kit, which isn't a gun, and do whatever work is needed to turn it into a gun, then you have just become the manufacturer, under the law, and all the rules now apply if you sell it. And if you don't comply with all the Federal laws, you are committing a Federal Crime.

Existing law covers this, why is there even a court case for SCOTUS to hear??

Also, if you feel current law isn't adequate (the law, not the enforcement of the law) then isn't the place to change that the Congress, NOT the Supreme Court??

[tangolima]

There are states, CA being one, that ban ghost guns. I don't think such state laws are constitutional. Somebody filed a law suite against the state and lost. He, usually backed by certain organizations, appealed the case to supreme Court, which means they have been losing the case at all levels of court. Supreme decided to hear the case perhaps because of the unconstitutionality of the said state laws, and wanted to correct that. I take it as a positive prospect.

-TL

Sent from my SM-N960U using Tapatalk

[veprdude]

I was under the understanding that making a gun for yourself while being a prohibited person was illegal. I was also under the understanding that making a gun for yourself and selling/trading was illegal much in the way you can home-brew beer and give it to friends but cannot sell it.

These laws are already well established and should not affect being able to buy a P80 kit or whatever. If black market finished P80s are being sold on the streets it's already illegal to do so.

[zukiphile]

And if you buy a kit, which isn't a gun, and do whatever work is needed to turn it into a gun, then you have just become the manufacturer, under the law, and all the rules now apply if you sell it. And if you don't comply with all the Federal laws, you are committing a Federal Crime.

Existing law covers this, why is there even a court case for SCOTUS to hear??

Also, if you feel current law isn't adequate (the law, not the enforcement of the law) then isn't the place to change that the Congress, NOT the Supreme Court??

Yes, but that's harder.

What the agency sought is not what has been done historically. Instead, the exec has promulgated a reg that defines whatever may be readily converted (with eight or fewer hours of shop time) into a receiver as a receiver.

As with the pistol brace/SBR issue and FRT issue, the exec issues a reg that is substantially at odds with prior practice, regs or the underlying code. As in those other instances the change isn't slight; if the reg permits the exec to prosecute you for buying an unserialized block of aluminum from a non-ffl because that could be "readily converted" to a rifle, or as Justice Sotomayor suggested in a prior case, a machine gun, then the reg is the exec handing itself a nearly blank check.

[Ricklin]

It's almost to the point of silly. Are they not asking the Supremes to somehow regulate private manufacture of firearms? Fact is, as stated above, we already have laws that regulate private manufacture.
What no one counted on was the ease of manufacturing. Most anyone with a modicum of skills and tools can assemble a handgun or rifle easily. It may take more work to learn the legal dos and don'ts than the actual assembly of same.

[44 AMP]

I was under the understanding that making a gun for yourself while being a prohibited person was illegal.

I think it would be, since the law says a prohibited person cannot possess a firearm, if you built it, you most certainly possess it.

I was also under the understanding that making a gun for yourself and selling/trading was illegal much in the way you can home-brew beer and give it to friends but cannot sell it.

This is a yes and no kind of thing. And, it seems the govt will either give you a pass, or prosecute you, depending on the volume of what you sell, and their interpretation of your motive.

Say you build a rifle (or any legal firearm) and in this matter it doesn't matter if you hammer forged every part in your blacksmith shop, or just assembled pre made parts, you "manufacture" a functional firearm, for your own personal use. Current law allows you to do that, without needing a license or having to serial # the gun.

And, as long as you retain the gun for your own personal use, its cool with the Gov. And, like the rest of your personal property, you are allowed to give it away, or sell it when you no longer want it.

HOWEVER since its a gun, once you put it on the market, its no longer just your personal property, it is an item of commerce, and all the regs and rules then apply, whether money changes hands, or not.

Do it a handful of times over a period of years, the GOVT rarely cares. Do it on a regular and ongoing basis, you're going to need a lawyer who can convince a jury that you're NOT making guns for sale, and NOT "egaged in the business" of dealing in firearms, without a license.

you can make your homebrew beer, and give some away to friends, as gifts, small scale, the Govt rarely cares. Make batches for sale, without a license and paying the taxes, you're breaking the law, and the Govt does care about that.

[FrankenMauser]

What case is this?

[natman]

Originally Posted by FrankenMauser

What case is this?

Garland v. VanDerStok

[Thomas Clarke]

I am surprised by the comments so far. Generally, Staff clarifies the real issues and facts and clears out the Hater issues. This time, it does not seem to be the case.

We all react poorly to the Ghost Guns tag from the ignorant Haters or the Anti Gunners. This case arose out of the Fifth Circuit which includes the state of Texas. I suspect that the court may surprise us with their ruling.

The issue is not the Second Amendment. Gun Kits are not Firearms. The Second Amendment protects the right to possession of Firearms. Existing laws cover the making of guns for personal use and for selling firearms or gifting firearms.

I suspect the Court will treat this issue as one that affirms the State's right to regulate the manufacture, distribution, and sale of non-firearms by setting a formula for a fully operating kit gun. The formula will require that the possessor of the assembled kit firearm must have the proof of purchase of the kit gun to them and that the seller of the kit gun must have proof of sale to the possessor of the kit gun. This will effectively stop the issue.

Those of us who like the ease of assembly can collect as many kit guns as we want, provided we do not sell them without conforming to existing laws. This will be a boon for the lawyers on both sides and will likely expand the liability of gun kit manufacturers and distributors. The state will like it because it adds to the paperwork, red tape, and mindless bureaucracy; it creates more tasks for workers and computers and hence more fees and revenue. The Haters will be happy. Criminals will no longer have cheap guns available and will be easily prosecuted. The Anti-Gunners will chortle. Responsible Gun Owners will be safe and we can then worry about the ridiculous out there like ammunition and micro-stamping and other assaults on our Right To Bear Arms.

[zukiphile]

Originally Posted by Thomas Clark

I suspect the Court will treat this issue as one that affirms the State's right to regulate the manufacture, distribution, and sale of non-firearms by setting a formula for a fully operating kit gun. The formula will require that the possessor of the assembled kit firearm must have the proof of purchase of the kit gun to them and that the seller of the kit gun must have proof of sale to the possessor of the kit gun. This will effectively stop the issue.

The issue in VanDerStok is that the exec by regulation has claimed the right to regulate something that can be converted from an item not listed in the GCA or NFA as if it fell under those acts.

How does a proof of purchase or sale address that issue?

[Aguila Blanca]

Originally Posted by Thomas Clarke

The issue is not the Second Amendment. Gun Kits are not Firearms. The Second Amendment protects the right to possession of Firearms. Existing laws cover the making of guns for personal use and for selling firearms or gifting firearms.

I suspect the Court will treat this issue as one that affirms the State's right to regulate the manufacture, distribution, and sale of non-firearms by setting a formula for a fully operating kit gun. The formula will require that the possessor of the assembled kit firearm must have the proof of purchase of the kit gun to them and that the seller of the kit gun must have proof of sale to the possessor of the kit gun. This will effectively stop the issue.

Some states, in the holy name of "regulating ghost guns," are requiring a firearm serial number on an UNmachined receiver before it can be sold in that state. That's not regulating the manufacture of firearms. That's blatantly exceeding the federal law that requires a serial number on a "firearm."

[44 AMP]

Some states, in the holy name of "regulating ghost guns," are requiring a firearm serial number on an UNmachined receiver before it can be sold in that state.

I don't believe a chunk of metal is a "receiver" unless it is finished (machined) into one. Unless that is done, its just a billet, or forging or some other term describing an unfinished piece of metal.

The state saying so doesn't make it so. And, if the SCOTUS took the case so they can rule that the states who say it is a receiver when it isn't are full of it, I think that would be a good thing.

The state might be able to make a case for regulating ducks, that would be a separate issue, but the state saying everything that comes out of an egg is a duck, and so we can regulate is seriously flawed reasoning.

If the state were correct, that every piece of metal that isn't a receiver is a "reciever to be", then they better require serial #s on every foot of pipe, railroad track, skyscraper structural girders, ships, planes, trains and automobiles, and lots of other things, or just go to the source and require a serial # on every piece of raw iron ore....

To me, its beyond stupid...

[Thomas Clarke]

I think that SCOTUS will rule that the state can legislate that the distributor must maintain records that reflect the purchaser and that the possessor of the kit gun must have a receipt indicating their purchase of the kit. They will use the Commerce Act for support.

[FrankenMauser]

The ATF has determined that a tube is a suppressor, if you bought that tube with the intent of turning it into a suppressor. So you're guilty of constructive intent unless you file a Form 1, but if you file a Form 1, you have to show how you plan to machine it into the final form. And if you don't show adequate options for machining, you're guilty of constructive intent.

So I won't be surprised, at all, at any result from SCOTUS for this case.

[zukiphile]

Originally Posted by Thomas Clarke

I think that SCOTUS will rule that the state can legislate that the distributor must maintain records that reflect the purchaser and that the possessor of the kit gun must have a receipt indicating their purchase of the kit. They will use the Commerce Act for support.

Ordinarily, the Court will only decide an issue that has been presented to it.

The issue in VanDerStok is different; it's whether the reg promulgated in 2022 is beyond the text chosen by Congress.

[44 AMP]

Originally Posted by Thomas Clarke
I think that SCOTUS will rule that the state can legislate that the distributor must maintain records that reflect the purchaser and that the possessor of the kit gun must have a receipt indicating their purchase of the kit. They will use the Commerce Act for support.

While I agree that they will use the Commerce clause as their authority, I don't see what you propose having any real world effect.

Consider this, what good is a record of whom the kit was sold to, or requiring the buyer to keep their receipt?? The kit is NOT a firearm, until it is made into one. IF said firearm enters into the market (legal, or black market) without a serial number and the other requirements, Federal law has been broken.

Since 1968, all new firearms made for sale in the US are required to have a serial number, AND the manufacturer/importer reports that to the government. Possession of a gun made after the GCA 68 that does not have a serial number, (or has the serial number removed or defaced) is a Federal Crime. The only exception to that is if you manufacture the gun yourself and only as long as you retain possession of that firearm. If you give it away, or sell it, it requires a serial number, the makers name and address, and reporting its existence to the Fed Govt. Also all laws regarding the gift or sale of a firearm must be followed, including background check and any other requirements.

Once the kit has been made into a firearm, the kit no longer exists. What possible use are receipts for something that no longer exists going to do?

[Aguila Blanca]

Originally Posted by 44 AMP

Since 1968, all new firearms made for sale in the US are required to have a serial number, AND the manufacturer/importer reports that to the government. Possession of a gun made after the GCA 68 that does not have a serial number, (or has the serial number removed or defaced) is a Federal Crime. The only exception to that is if you manufacture the gun yourself and only as long as you retain possession of that firearm. If you give it away, or sell it, it requires a serial number, the makers name and address, and reporting its existence to the Fed Govt. Also all laws regarding the gift or sale of a firearm must be followed, including background check and any other requirements.

I am not sure this is correct, especially if the home-made firearm is transferred within a state that allows face-to-face transfers.

https://www.criminaldefenselawyer.co...-be-registered.

As previously noted, the federal Gun Control Act of 1968 (GCA) requires people "engaged in the business" of dealing firearms to get a license from the federal government called a Federal Firearms License (FLL). Nothing in the GCA prohibits individuals from making guns for their own personal use, but not for sale or distribution. A person who makes a gun for the purpose of selling it would have to get an FLL.

Some people argue that federal law allows an unlicensed person to sell, give away, or otherwise transfer a homemade firearm to another resident of their state if the gun was originally intended for personal use. Determining whether a gun was originally intended for personal use involves looking at many factors, including:

* the length of time between the creation of the firearm and its transfer
* the specific reason for the sale or transfer, and
* whether the maker of the firearm frequently sells or transfers homemade firearms.

https://thegunzone.com/can-you-sell-...that-you-made/

[44 AMP]

I am not sure this is correct, especially if the home-made firearm is transferred within a state that allows face-to-face transfers.

You might be correct, it is possible some of the requirements might not be applicable to an in state face to face transfer, however, one requirement I am certain about is the serial number.

Possession of a post 1968 firearm without a serial number is a Federal Crime. The gun itself is illegal, and contraband, in the hands of anyone other than the person/company that made it.

An in-state, face to face transfer might avoid the FFL, the background check, and waiting period (if any) but it cannot avoid the law that states if there is no serial number or the number has been removed, altered, or defaced, the gun is illegal to possess by everyone other than the maker.

Every gun made post 68 must have a serial number or it is illegal and guns made before 1968 that had serial numbers must have that marking complete and legible or its an illegal item. This is not just a transfer requirement, it is a requirement for lawful possession. Any gun ever made with a serial number must have that number intact, or its illegal to possess. A 1920 Colt which had the serial number removed by a criminal in 1953 is illegal to possess. A gun made before 68 that never had a serial number IS legal to own. One that was made with a serial number and has had that number removed, is not.

When a gun required by law to have a serial number is found without one, or with the number defaced or altered, the law charges the possessor of the gun with the crime. Doesn't matter if they were the one to remove the number or if it had been done decades before. They possess an illegal gun. Period.

State transfer requirements do not change that.

[Bill DeShivs]

Unless the federal law has been changed recently, I remember it not requiring serial numbers on home made guns that were/are sold incidentally to upgrade a collection or to liquidate a collection, etc.

If an individual were charged for possession of a home made gun without a serial number, how would it be determined that he did NOT manufacture the gun himself?

[44 AMP]

If an individual were charged for possession of a home made gun without a serial number, how would it be determined that he did NOT manufacture the gun himself?

Am not entirely certain but if his defense was that he made the gun himself, wouldn't that mean he would have to provide some kind of proof that he did?

Receipts proving he bought the parts might be a start. Having the tools needed, and being able to demonstrate the knowledge of their use, being able to describe, in detail, what and how he did it, from memory would go a long way to convincing a jury, but lacking that, its just his word, so, since he's using his word as a defense, doesn't he have the burden of proof, not the prosecution??

Also there is always the possibility of testimony from people who know the accused (friends, family, etc.) who might be able to say where and when the guy got (or made) the gun.

I wouldn't want to be the test case (and its not likely) but it would be interesting to see, or read if this was attempted and what the jury decided.

[armoredman]

Also homemade guns that are replicas of firearms made prior to 1898 that are cap and ball/black powder are also generally exempt.

[Aguila Blanca]

https://www.atf.gov/firearms/privately-made-firearms

Individuals who make their own firearms may use a 3D printing process or any other process, as long as the firearm is “detectable” as defined in the Gun Control Act. You do not have to add a serial number or register the PMF if you are not engaged in the business of making firearms for livelihood or profit.

[Bill DeShivs]

I would think it would be up to the prosecution to prove he DIDN'T make the gun-and that would be practically impossible for them to prove.

[44 AMP]

I would think it would be up to the prosecution to prove he DIDN'T make the gun-and that would be practically impossible for them to prove.

Possibly, but what matters is what the jury believes. Consider this, the investigation could include a complete search of the accused's property, including everything he physically owns and all records connected with him.

If the claim is that he made the gun, and no evidence other than his word that he made it can be found, anywhere, that in itself is evidence that can be presented to the jury. And, how rational does it look to say "I'm not guilty because I made the gun" and provide no evidence he did so? How likely is it that he made a gun and then eliminated all evidence that he made it??

I'm not a lawyer, so those who are, help me out, please, but isn't this, in principle, the same thing as an alibi? Your word alone is not enough, some corroborating evidence is needed. isn't it?

[zukiphile]

Originally Posted by 44AMP

Possibly, but what matters is what the jury believes.*** Your word alone is not enough, some corroborating evidence is needed. isn't it?

In principle, a defendant's version of an event doesn't require anything more than that he testify to it for it to be admitted. Whether a jury believes him would be a separate matter. "I had the green light, entered the intersection and was hit by the other guy" is evidence even if no one corroborates it.

Originally Posted by 44AMP

If the claim is that he made the gun, and no evidence other than his word that he made it can be found, anywhere, that in itself is evidence that can be presented to the jury. And, how rational does it look to say "I'm not guilty because I made the gun" and provide no evidence he did so? How likely is it that he made a gun and then eliminated all evidence that he made it??

I just had an omelette and coffee, both of which I made myself. I don't have documents substantiating the ingredients. I don't think that is weird.


I don't believe this issue is presented in VanDerStok. In this case, the government's position is that the tools used to create a functional receiver can be regulated by them as if they were a receiver, along with material that is "readily convertible" to a receiver. Essentially, their position is that where Congress said that a frame or receiver is to be regulated as a firearm, what they meant was that other things should also be regulated as firearms if they can be made into a frame or receiver "readily".

This isn't about keeping receipts for a kit, but what can be treated as a firearm by the federal government.