Gun violence in this country poses a public health crisis warranting common-sense solutions. The ABA has longstanding policy on gun violence prevention strategies that respect the Second Amendment, including gun safety education, anti-bullying programs, enhanced background checks, prosecution of those who commit crimes with a firearm, funding for mental health services, and tighter regulation of firearm possession.
A recent trend in gun sales involves “ghost guns,” which are assembled with 3D-printed components or from kits and parts available online and sold without any background checks. Ghost guns allow individuals to build a do-it-yourself firearm that has no serial number and circumvents record-keeping. As a result, people who are legally prohibited from owning firearms are able to create them without consequences in most states.
At the February 2020 Midyear Meeting, the ABA House of Delegates adopted policy that addresses loopholes in state and federal law that allow gun buyers to purchase ghost guns. The policy recognizes the importance of ensuring that firearms and their components are serialized, recipients pass a background check, and sellers create and retain records of those transactions consistent with federal record-keeping requirements.
The Biden Administration is taking steps to track firearm components used in ghost gun ownership. In May 2021, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) proposed a rule that would require serialization of firearm frames and receivers and also would close loopholes in federal regulations, thereby requiring ghost guns to be treated like other firearms.
Then-ABA President Patricia Lee Refo provided comments to the agency on ghost guns in August 2021, supporting the ATF’s proposed rule. In a letter to the ATF, she pointed out that, nationwide, there was a 400% increase in ghost guns recovered at crime scenes between 2016 and 2020 and that shooters have utilized ghost guns in several high-profile mass shootings. The ATF is currently finalizing the rule.
In the courts, firearms are again emerging as a significant issue. An existing ghost gun ban by the District of Columbia is facing a challenge. The lawsuit was filed in September in the U.S. District Court for the District of Columbia by Dick A. Heller, the Second Amendment activist who won a landmark 2008 Supreme Court decision on gun ownership, District of Columbia v. Heller.
Heller’s lawsuit on D.C.’s ghost gun prohibition asserts that the ban denies residents their Second Amendment rights and “unintentionally” outlaws existing firearms ownership.
In another high-profile case, New York State Rifle & Pistol Association Inc. v. Bruen, the Supreme Court heard arguments on November 3 in a case challenging a New York state gun law that sharply limits people’s ability to carry weapons outside their homes. It marks the first major gun case since the Supreme Court decided District of Columbia v. Heller, where the court ruled that the Second Amendment protects an individual’s right to possess a firearm unconnected with service in a militia, and to use firearms for traditionally lawful purposes.
In that decision, the late Justice Antonin Scalia wrote for the majority to say that the Second Amendment protects an individual’s right to possess a firearm unconnected with service in a militia, and to use firearms for traditionally lawful purposes. But Scalia’s opinion did not invalidate regulations on carrying concealed firearms. The ABA noted in an amicus brief it filed in the current New York State Rifle & Pistol Association case that regulation of concealed firearms is “an essential tool states have used for centuries to stem gun violence.” That “tool,” the ABA added, allows state and local jurisdictions to develop diverse, flexible approaches to the regulation of concealed weapons to address public safety concerns and to protect victims of domestic violence.
The Supreme Court is expected to issue its decision in New York State Rifle & Pistol Association Inc. v. Bruen later in the court’s term.