Homemade Guns

Shinzo Abe, former Prime Minister of Japan, was shot and killed last week. News reports suggest that the man who killed him used a crude homemade gun. How are homemade guns regulated here?

Prior post. Jonathan Holbrook wrote about “ghost guns” and other privately made guns here. His post is great, but an update seemed appropriate for a couple of reasons. First, the number of homemade guns seized by law enforcement has grown dramatically in recent years. ABC News reports here that “[t]he number of unserialized . . . firearms seized by major metro police departments has grown exponentially. In Philadelphia, local police seized 571 ghost guns in 2021 compared to 13 in 2018. In New York City, police seized 375 ghost guns in 2021 compared to 48 in 2019.” Second, the federal government has changed how it regulates certain products that can be used to assemble guns at home since Jonathan wrote his post. I’ll dig into that a little further down.

Types of homemade guns. Several different types of firearms may be made outside the confines of a gun manufacturing plant. The man who killed Prime Minister Abe seems to have assembled what some people call a “zip gun,” a rudimentary firearm improvised from commercially available materials. Such guns normally are capable of only a single shot, though in this case the gun apparently had two barrels and so was able to fire two shots. More sophisticated guns may be made through other techniques, including from kits sold online. One characteristic common to virtually all homemade guns is that they do not have serial numbers as they are not commercially manufactured.

Some federal gun laws don’t apply to homemade guns. Many federal gun laws are based on Congress’s authority to regulate interstate and foreign commerce and so address only commercial activity. For example, only a federally licensed manufacturer may engage in the business of manufacturing firearms. 18 U.S.C. § 922(a)(1)(A). An unlicensed person building a gun at home for his or her own use does not run afoul of that provision because he or she is not in the business of manufacturing firearms. Similarly, because people who build homemade guns generally are not licensed dealers, they are not subject to various rules that apply only to dealers, like the rule that dealers may not sell long guns to individuals under 18 and handguns to individuals under 21. 18 U.S.C. § 922(b)(1).

What about the federal law against possession by felons and other prohibited persons? The Commerce Clause is also the underlying authority for 18 U.S.C. § 922(g), which provides that a person can’t possess a gun “in or affecting commerce” if he or she is a felon or a drug user or an illegal alien or has several other characteristics. One could argue that possessing a homemade gun is a local activity that does not affect interstate commerce. The courts have normally looked for evidence that a firearm crossed state lines before concluding that it was possessed in or affecting commerce, and such evidence would necessarily be absent in the case of a homemade gun. See United States v. Bass, 404 U.S. 336 (1971) (stating that the government may show that receipt or possession of a firearm affected commerce “in a variety of ways” such as showing that “the firearm received has previously traveled in interstate commerce”); United States v. Williams, 445 F.3d 724 (4th Cir. 2006) (stating that “[t]he requisite connection to interstate commerce can be satisfied through proof that the firearm . . . is manufactured in one state and possessed in another” and noting that a bullet recovered in the case “was not homemade”); United States v. Gill, 864 F.3d 1279 (11th Cir. 2017) (seemingly concluding that it did not violate federal law for a Florida felon to possess a firearm manufactured in Florida, due to the lack of an interstate nexus). Cf. United States v. Lopez, 514 U.S. 549 (1995) (ruling that a federal statute prohibiting the possession of guns in schools was not within Congress’s authority under the Commerce Clause).

On the other hand, the Supreme Court has at times interpreted Congress’s Commerce Clause authority very broadly. See generally Wickard v. Filburn, 317 U.S. 111 (1942) (holding that Congress could regulate home-grown wheat under its Commerce Clause power). In the specific context of 18 U.S.C. § 922, the Fourth Circuit has ruled that when “the principal parts” of a firearm “have moved in interstate commerce,” there is a sufficient interstate nexus to satisfy the statute, even if none of the parts are themselves firearms under federal law. United States v. Verna, 113 F.3d 499 (4th Cir. 1997). See also United States v. Gresham, 118 F.3d 258 (5th Cir. 1997) (similar). This reasoning may apply to many homemade guns. Further, homemade guns may impact the national markets for guns by taking potential gun buyers out of that market once they build their own weapons. Cf. United States v. Pope, 871 F.2d 506 (5th Cir. 1989) (“Even a homemade gun could affect the interstate gun market.”).

Although there are plausible arguments on both sides here, Verna appears to answer the question for now: a person who is prohibited from possessing a gun “in or affecting commerce” under 18 U.S.C. § 922(g) is prohibited from possessing a homemade gun if the “principal parts” of the gun have traveled in interstate commerce.

If state law prohibits a person from owning a gun (or a particular kind of gun) the person can’t own a homemade gun (or that particular kind of homemade gun). Whatever the status of the federal gun laws regarding homemade guns, North Carolina laws regarding firearms generally apply to all guns, whether homemade or commercially produced. Thus, a felon cannot possess a homemade gun under state law any more than he or she can possess a commercially produced firearm. G.S. 14-415.1. A person under age 18 cannot possess a handgun, however manufactured. G.S. 14-269.7. And it is generally unlawful to possess a machine gun, even if the weapon is made at home. G.S. 14-409. Unlike some states, North Carolina doesn’t have specific laws addressing homemade guns, but our general gun laws remain applicable.

New federal regulation of some homemade guns and gun kits. Jonathan’s previous post explored the issue of what counts as a firearm under federal law and noted that the answer is basically the receiver (for a long gun) or frame (for a handgun). And he noted the phenomenon of the so-called 80% receiver, where a consumer can buy a product that isn’t quite a receiver yet but is mostly finished and needs just a bit of milling or other metalwork to be operable. Generally, 80% receivers have not been treated as firearms and so have not been subject to various federal provisions about manufacturing and selling firearms, such as the requirement that firearms be stamped with a serial number and, when sold by a licensed dealer, be sold only after a background check. Over time, businesses have pushed the limits of how close to a receiver one can get without crossing into firearm territory, including selling 80% receivers that need only minimal changes to function, and packaging the 80% receiver with the tools and templates needed to finish the job. Maybe those should be called 90% receivers, or even 95% receivers.

Recently, the Bureau of Alcohol, Tobacco, and Firearms within the Department of Justice enacted a new set of regulations that changes how firearms, frames, and receivers are defined under federal law. The full set of regulations is here, and ATF’s summary is here. The most significant change is to the definitions of “frame” and “receiver,” which now “shall include a partially complete, disassembled, or nonfunctional frame or receiver, including a frame or receiver parts kit, that is designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver . . . . When issuing a classification, [ATF] may consider any associated templates, jigs, molds, equipment, tools, instructions, guides, or marketing materials that are sold, distributed, or possessed with the item or kit, or otherwise made available by the seller or distributor of the item or kit to the purchaser or recipient of the item or kit.” In other words, many 80% receivers are now just . . . receivers. And that makes them firearms subject to all the usual requirements around serial numbers, background checks, and the like. Of course, exactly what “may readily be completed” mean is a bit hard to pin down, especially since it depends on the instructions and materials that come along with a partially-finished receiver. The new regulation takes effect August 24, 2022, and litigation about its meaning and constitutionality both seem likely.

Conclusion. Homemade guns are an area of legal change but also of technical change. 3D metal printing, in particular, may disrupt the current legal landscape. As always, we’ll cover important developments on the blog.