Biden's next EO. Background checks for "ghost guns"

It’s being reported that after taking a break for a couple of weeks, President Joe Biden will resume his record-setting pace of issuing executive orders next week, this time focusing on gun control issues. National Review reports that the only specific action that’s been confirmed thus far will be an EO requiring background checks covering the sale of so-called “ghost guns.” These are guns that are made at home by private gunsmiths and lack serial numbers, or unfinished firearm frames that are sold to others. Additional executive orders covering this topic are expected.

President Biden will issue a number of executive orders on gun control on Thursday, Politico reported.

In particular, Biden will direct the administration to require background checks for buyers of “ghost guns,” or homemade guns that lack serial numbers.

Biden will be joined by Attorney General Merrick Garland when he unveils the orders.

The whole issue of these ghost guns is a complicated one, and if Biden orders background checks for their sale, he may run into some complications. The problem is that a ghost gun that is sold to someone else is basically an unfinished firearm frame. Typically, it will not have a finished receiver (where the firing pin is located) installed. And under the Gun Control Act of 1968 (GCA), such a product doesn’t qualify as being a true firearm and is not subject to the same regulations as functional firearms.

It’s actually legal for someone to manufacture a gun for their own use and they aren’t required to put a serial number on it. If you try to sell a completed firearm that you manufactured to someone else, however, and you’re not an authorized dealer, both you and your customer could wind up going to prison. The sale of unfinished frames in this fashion allows for both the buyer and seller to skip the background check system. (Some states, including New York, do have additional state laws regulating the possession of such firearms, particularly handguns, however, so you can still run into trouble.)

Two things about this reported executive order are troublesome. First of all, background checks are required for firearms. The unfinished frame is not a firearm, so how can the President mandate background checks for something that fails to qualify as a firearm under the GCA?

National Review speculates that some of the additional executive orders could attempt to restrict the sale of “assault weapons” or extended magazines. Another possibility being mentioned is that he could attempt to ban the sale of firearms to people who have been convicted of domestic abuse. (I thought that rule was already in place pretty much everywhere already.) All of these actions raise a more troubling question.

From a broader perspective, such gun control regulations have traditionally always been handled legislatively. Joe Biden was personally involved in the passage of the previous “assault weapons” ban. Has he forgotten that it was passed as a law, not an executive order? Biden may wind up testing the limits of his authority to dictate the behavior of citizens without the cooperation of his coequal elected leaders in Congress. Assuming someone with standing to challenge this order (if it’s issued) can be found, it could make for an interesting court battle and establish some new precedents in a couple of different areas.

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