Reckless and Flawed: Fifth Circuit Allows Two Companies to Resume Unregulated Ghost Gun Kit Sales Despite ATF Ghost Gun Rule, Everytown Law Responds

NEW YORK – Everytown Law, the nation’s largest and most experienced team of litigators in the U.S. working full-time on advancing gun violence prevention in the courts, released the following statement in response to the Fifth Circuit Court of Appeals decision yesterday that upheld an injunction against the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) enforcing its ghost guns rule against two ghost gun sellers. Yesterday’s reckless and flawed decision by the Fifth Circuit allows these two ghost gun distributors to continue selling gun-building kits. The decision flies in the face of the Supreme Court’s order, issued two months ago, that kept the rule in place pending litigation in the courts. 

“Yet again, the Fifth Circuit has issued a flawed and dangerous decision attacking the ATF’s life-saving regulations on ghost guns,” said Eric Tirschwell, Executive Director of Everytown Law. “The Fifth Circuit’s ruling flies in the face of common-sense and public safety, preventing the government from regulating ghost guns for what they are: guns. This decision puts our communities at risk by making it easier for criminals to access deadly, untraceable weapons without even facing a background check. Everytown will continue to support the Department of Justice as they defend this common-sense rule in the courts.”

The rule, which was finalized in April last year and took effect last August, confirms that ghost guns are to be treated like the deadly firearms they are. ATF’s rule updated and clarified key definitions, including “firearm,” “frame,” and “receiver” to ensure that kits and components that are easily assembled into untraceable ghost guns are subject to the same regulations as firearms. 

Following an extreme decision by a federal judge in the Northern District of Texas to block the ATF’s rule, the Fifth Circuit, without any meaningful explanation, declined to put the lower court’s order on hold, prompting the Supreme Court to intervene. In August, the Supreme Court decided to overrule the Texas court’s decision, allowing the rule to stay in effect. Flouting the Supreme Court’s order, the same federal judge in the Northern District of Texas again blocked ATF from enforcing the rule against two ghost gun distributors. Now the Fifth Circuit has followed suit.

The Washington Post recently reported on how American teenagers can, with ease, acquire the parts for ghost guns, often leading to deadly outcomes. Everytown Law recently filed a suit in Virginia on behalf of the estates of two 17-year-old Virginians who were shot and killed by an 18-year-old classmate using an unserialized, self-assembled ghost gun purchased from ghost gun seller 80P Builder. 

ATF estimates that nearly 45,240 ghost guns have been recovered by law enforcement between 2016 and 2021, and local law enforcement agencies are seeing staggering increases in rates of recovery — rising as much as 100 percent in the last three years in places like San Diego and Los Angeles. Other communities have seen significant ghost gun recoveries, with sharp increases in the past year. In 2022, ATF recovered 25,785 ghost guns in domestic seizures, as well as 2,453 through international operations. So far in 2023, the Department has recovered more than 10,000 privately made firearms (PMF’s) domestically and 1,000 internationally. According to the LAPD, the department recovered 1,921 ghost guns in 2021, more than double the 813 ghost guns recovered in 2020. In Philadelphia, the police reported recovering 571 ghost guns, compared to 95 in 2019 and 250 in 2020. Ghost guns have also been weapons of choice for militant right-wing extremists and people who otherwise would not be able to pass a background check. In recent months, the country has also seen an increase of gun fire on school grounds with ghost guns and recoveries of ghost guns on campuses. Schools in Arizona, New Mexico, Maryland, and Kansas have been devastated with these instances of gun fire on school grounds – highlighting a scary trend and another important reason to regulate these guns. 

Everytown has compiled examples of ghost gun shootings from across the country since 2013, available here. Everytown’s report on ghost guns, featuring testimonials from law enforcement officers, can be found here.