*The views expressed in this article do not represent the views of Santa Clara University.
Credit: Rick Shaw | Unsplash
Firearm accessibility under the Constitutional right to “bear arms,” and subsequent statutes and regulations, is a frequent topic of debate. In particular, the sale of online gun components has altered the way Americans obtain firearms. With technological advancement comes ease and, in the case of ghost guns, deadly consequences. This article seeks to define ghost guns, their devastating effects on society within the past ten years, and the Federal and State governments’ attempt to paralyze ghost gun manufacturers. In 2013, access to weapons became as, “ubiquitous as the internet.” This year, the Federal Executive Branch responded to the proliferation of unregulated, unserialized, and untraceable ghost guns after years of states’ attempts to mend the violent impact of the obscure weapons.
What are “Ghost Guns”?
“Ghost guns” are manufactured and nationally distributed as “kits” containing various, buildable gun parts sold to private citizens. The various kits sold online by gun manufacturers include 80% completed receivers. The remaining 20% of the gun parts are located and assembled individually. Buyers of ghost guns can purchase these kits without background checks or federal firearm registration.
Most ghost guns discovered by law enforcement were built using Polymer80, Inc.’s marketed gun parts. Unlike completed guns, ghost gun parts lack serial numbers, making them untraceable by law enforcement. As highlighted by Mike Feuer, “Polymer80’s business model makes a mockery of federal and state background check laws.” He added, “A customer on their website is asked to simply self-certify they are not a felon.” In essence, ghost guns allow easy access to firearms by known criminals.
Many mass shootings involve ghost guns. In 2015, 25-year-old John Zawahiri went on a shooting spree in Santa Monica, California, killing five people using his homemade AR-15. Last year, a man shot multiple people using a ghost gun outside a nightclub in Manhattan, New York. A similar mass shooting occurred in San Diego in April of 2021, injuring four with one casualty.
In 2021, nearly one-third of all weapons recovered by law enforcement nationally contained parts from ghost guns kits sold online. Between 2019 to 2020, California had a 27% homicide rate increase which is likely connected to the ease of online gun purchases. For example, the LAPD did not begin tracking the number of ghost guns recovered until 2020, “further underscoring how quickly ghost guns have proliferated throughout the city.” In addition, San Francisco ghost gun seizures from 2016 to 2021 jumped from 1% to 20%. At a national level, upwards of 23,000 un-serialized firearms were reportedly recovered by law enforcement from 2016 to 2020. Out of the 23,000 reported recoveries, 325 homicides or attempted homicides were connected. Ghost guns live by their name, however, as an unquantifiable amount remain undiscovered.
Federal and State Responses to Ghost Guns
The Gun Control Act of 1968 imposes stricter licensing and regulation of the firearms industry. Significantly, the Act prohibits the sale of firearms to felons or “other prohibited persons.” Nonetheless, gun kit manufacturers have found loopholes in the Act’s narrow definition “firearms” and manufactured components.
Local law enforcement officials are faced with the incorrigible task of preventing consumer use of these unregulated, unserialized, and untraceable ghost guns. Recently, the Nevada legislature passed an anti-gun violence bill, aimed at the proliferation of Polymer80’s distributed parts. In response, David Pucino emphasized that, “You can say you can’t possess an unserialized gun, but you need to be able to go up the supply chain if you want to stop this problem.”
In California in 2019, Governor Gavin Newsom signed legislation requiring background checks for individuals seeking to purchase online gun kit parts. In 2022, the Biden Administration announced improve regulation of the manufacturing of gun kits in response to Governor Newsom’s actions. Governor Newsom promised, “California will not stand idly by as gun manufacturers, traffickers, and others spread death and carnage on our streets. We will continue to lead efforts to save lives and work to ensure policies originating in California and become a model for other states and the nation.”
The Los Angeles Times reported that within the last two years, California and Nevada are two of seven states to enact legislation related to the distribution of ghost guns. Nonetheless, Brady United, a non-profit movement driven to sustain the 1993 Brady Law influence in preventing America’s handgun violence, believes it is crucial for the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to expand its definition of “firearm” to include “unfinished frames and receivers which are designed and marketed to be easily converted into firearms.” David Pucino agreed, stating that, “The state level laws are really important but can only go so far. Really, we need a federal solution.”
In August of 2022, a year after Brady United’s plea for gun specificity, AFT promulgated a rule clarifying the definitions of “firearm” and related gun parts. The agency’s rule attempted to close the “...regulatory loophole associated with the un-serialized privately made firearms that are increasingly being recovered at crime scenes across the country.” The government’s progressive, yet gradual, attempt to paralyze ghost gun manufacturers is ongoing, and their effects continue to rattle the nation as their pervasiveness persists.
Apolinar v. Polymer80, Inc.
In 2021, two Los Angeles County Deputies were shot and gravely wounded while on duty. The gun at issue, a model PF940c, was a “do-it-yourself" ghost gun kit manufactured and sold by Polymer80, Inc. The defendant had a vast criminal history, and was legally barred from purchasing or possessing firearms. A lawsuit brought by the deputies against Polymer80 commenced a month later for its “conscious disregard” of the risks they created and their persistent contribution to the black market of illegal, unserialized guns likely to be obtained by criminal consumers for criminal purposes.
Apolinar v. Polymer80, Inc. will proceed to jury trial in February 2023. The deputies are suing for negligence and public nuisance claiming Polymer80 sold ghost gun kits without serial numbers or completing necessary background checks on purchasers of the kits. At issue in the case is Polymer80’s liability for their failure to meet safety requirements under the federal Gun Control Act and California’s Unsafe Handgun Safety Act for their “marketing, selling, and transferring all of the components, parts, materials, tools, instructions, and instructional videos needed to build an unsafe handgun in the state.” Polymer80 and gun manufacturers’ liability for their sale of ghost gun parts to ineligible, private citizens, at the expense of the nation’s safety, remains in dispute.
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