Ghost Guns, Stabilizing Braces, and Red Flag Laws: Overview of Recent Executive Actions on Firearms
Legal Sidebari
Ghost Guns, Stabilizing Braces, and Red Flag
Laws: Overview of Recent Executive Actions
on Firearms
April 23, 2021
On April 8, 2021, in the wake of mass shootings in Georgia and Colorado, President Biden announced six
executive actions seeking to address gun violence. One of the actions makes changes to federal funding
streams across existing grant programs and seeks additional funding to promote investment in community
violence intervention programs—for example, programs that “deploy trusted messengers [to] work
directly with individuals most likely to commit gun violence, intervene in conflicts, and connect people to
social and economic services to reduce the likelihood of gun violence as an answer.” Two of the other
actions (1) direct the Department of Justice (DOJ) to issue a report on firearms trafficking, which has not
been undertaken since 2000, that is to be comprehensive and annually updated; and (2) announce the
President’s nomination for Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
In addition to the actions mentioned above, the President’s recent announcement signals three further
actions in areas of firearms regulation that have been of interest to Congress in recent years: (1) the
proliferation of so-called “ghost guns”; (2) the availability of handguns with stabilizing or arm braces;
and (3) the passage of “red flag” laws. This Sidebar provides a brief overview of, and legal context for,
the three announced actions in these areas, as the specifics of proposed regulatory actions are expected in
the coming months.
Ghost Guns
Under federal law, licensed manufacturers of firearms, i.e., persons or entities in the business of making
firearms “for purposes of sale or distribution,” are required to identify each firearm manufactured with a
serial number, which facilitates ATF’s ability to trace them if lost or used in crime. However, this
requirement has created two legal spaces for firearms that can be made without affixing a serial number
or other identifying markings. These unmarked firearms, which are difficult to trace because of their lack
of identification, are sometimes referred to as “ghost guns.”
First, because only licensed manufacturers of firearms for purposes of sale or distribution are subject to
the identification requirement, unlicensed individuals who wish to make a firearm solely for personal use
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are not obligated to comply with the requirement (though certain kinds of firearms manufactured for
personal use are still subject to the more stringent requirements of the National Firearms Act (NFA), as
discussed below). Second, the identification requirement applies only to the manufacture of a “firearm,”
which is specifically defined by federal statute to include any weapon “which will or is designed to or
may readily be converted to expel a projectile by the action of an explosive,” or “the frame or receiver of
any such weapon.” A firearm “frame or receiver” is separately defined in federal regulation as the main
part of a firearm that “provides housing” for other components. ATF has long held that so-called “80%” or
“unfinished” firearm receivers that require a certain amount of additional machining “have not reached
the ‘stage of manufacture’ which would result in the classification of a firearm according to” federal law.
As such, these unfinished firearm components may be sold commercially, individually or in a “kit” with
additional components and instructions for self-completion, without the need to include a serial number or
other identifying markings. So long as purchasers intend to assemble the components themselves and only
for personal use, they likewise need not comply with identification requirements. Compliance with certain
other legal requirements for firearm sales, such as background checks, also is not required.
Some have argued that the availability of ghost guns should and can be further restricted in order to limit
access to untraceable firearms by persons who wish to commit crime or who are prohibited by law from
firearm possession. Others note that “the law already regulates the manufacture of firearms for sale no
matter how the gun was created” and argue that imposing additional legal restrictions would impede an
asserted right to make one’s own firearms.
The President’s recent actions address ghost guns by instructing DOJ, within 30 days of the
announcement, to “issue a proposed rule to help stop the proliferation of these firearms.” Although the
fact sheet describing the actions does not elaborate beyond this instruction, in announcing the actions, the
President indicated that he would like “to see these kits treated as firearms” under federal law. It is
possible that ATF might seek to accomplish this by amending the definition of “firearm frame or receiver”
in federal regulations through agency rulemaking.
Ghost guns are sometimes described in tandem with undetectable firearms, which are firearms that can be
made out of materials that can pass undetected through a metal detector or x-ray machine. Such firearms
might also be made without affixing a serial number or other identifying markings. That said,
undetectable firearms are subject to distinct legal restrictions, raise distinct legal issues, and do not appear
to be the immediate subject of the recent executive action regarding ghost guns.
Stabilizing or Arm Braces
Firearms are regulated at the federal level largely under two statutory regimes: The Gun Control Act
(GCA), which governs most kinds of commonly available firearms and establishes certain possession
prohibitions (e.g., for convicted felons) and transfer requirements (e.g., purchases through a licensed
dealer must be accompanied by a background check, and most sales across state lines are restricted), and
the NFA, which regulates certain specific kinds of firearms deemed to be more dangerous and associated
with crime. The NFA covers, among other things, short-barreled rifles, which are defined in part as
weapons “designed or redesigned, made or remade, and intended to be fired from the shoulder” and
having a barrel length of less than 16 inches. If a firearm falls into this definitional category, it is subject
to additional taxation, identification, and registration requirements under the NFA, requirements beyond
those imposed by the GCA.
As described in a recent CRS product, some kinds of handguns equipped with stabilizing or arm braces
straddle the line between GCA regulation and the more-stringent NFA regulation. The issue is whether
some handguns subject only to GCA regulation are, when equipped with a brace, considered to be “short-
barreled rifles” such that they are subject to the additional NFA requirements. Arguably, most kinds of
handguns are not designed, made, or intended to be “fired from the shoulder” and so do not meet the
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definition of a “rifle” under the NFA. If used with certain braces, however, they may be, depending on the
nature of the firearm, the brace, and how they are used together. For example, ATF has, in the past,
indicated that attaching a stabilizing brace to a handgun and using it as a forearm brace does not make the
firearm into a short-barreled rife subject to the NFA. However, “an item that functions” as a shoulder
stock “if attached to a handgun in a manner that serves the objective purposes of allowing the firearm to
be fired from the shoulder may result in ‘making’ a short-barreled rifle, even if the attachment is not
permanent.” On December 18, 2020, ATF issued a notice and request for comments with proposed
guidance regarding what “objective design features” ATF would consider in determining whether a
weapon with an attached stabilizing brace has been “designed or redesigned, made or remade, and
intended to be fired from the shoulder” under the NFA. The guidance indicated that certain features of the
firearm and design features of the stabilizing brace being used, among other things, would be assessed on
a case-by-case basis. On December 23, 2020, the notice was withdrawn pending further DOJ review.
The question of whether handguns with stabilizing braces should be controlled under the NFA, and, if so,
when, was discussed in recent weeks in light of reports that the man who allegedly shot multiple people in
a Colorado supermarket used a Ruger AR-556 semiautomatic pistol with a stabilizing brace. Although
handguns with certain braces may be used to fire the weapons from the shoulder, some have noted that
brace-equipped firearms can serve legitimate purposes, such as providing additional assistance to disabled
handgun-owners. President Biden’s recent executive actions address the status of handguns with
stabilizing braces by instructing DOJ, within 60 days of the announcement, to “issue a proposed rule to
make clear when a device marketed as a stabilizing brace effectively turns a pistol into a short-barreled
rifle subject to the requirements of [NFA].”
Red Flag Laws
In recent years, a number of states have passed laws permitting courts to issue temporary orders,
sometimes referred to as “extreme risk protection orders,” barring particular persons from possessing
guns based on some showing of imminent danger to themselves or others. These so-called “red flag” laws
generally provide procedures for certain persons to petition a court to order that firearms be temporarily
taken or kept away from someone who poses a risk of committing gun violence. These state laws vary in
details, but common elements include the following: (1) specifying persons such as family or household
members who may petition a court for an extreme risk protection order; (2) providing for preliminary
orders without notice to or appearance by the person who is the subject of the order, followed by final
orders of longer duration after the person who is alleged to pose a risk of gun violence has been given
notice and an opportunity to appear; (3) requiring some factual basis that the person for whom the order is
sought poses a risk of using a firearm to harm himself or others, with the stringency of the evidentiary
showing depending on whether a preliminary or final order is requested; (4) obligating the person who is
the subject of the order to relinquish his or her firearms (if he or she possesses any) immediately or within
a certain amount of time, and, in many states, authorizing issuance of a warrant for seizure by law
enforcement.
Bills introduced in the 117th Congress would, among other things, establish a federal extreme risk
protection order regime, incentivize additional states to adopt red flag laws, and/or criminalize possession
of firearms by persons who are subject to extreme risk protection orders. Similar and additional
legislation was previously introduced in the 116th Congress. Proponents of red flag laws assert that such
laws could save lives by removing firearms from persons shown to be a risk to themselves or others,
while opponents have questioned whether certain aspects of red flag laws could raise constitutional due
process concerns if legislation is not sufficiently tailored. The President’s executive actions include an
order that DOJ “publish model ‘red flag’ legislation” within 60 days of the announcement to make it
easier for states that want to adopt red flag laws to do so. The fact sheet also “urges Congress to pass an
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appropriate national ‘red flag’ law, as well as legislation incentivizing states to pass ‘red flag’ laws of
their own.”
Author Information
Michael A. Foster
Legislative Attorney
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