In response to the rising number of untraceable “ghost guns” on the streets of Washington, the D.C. Council last year passed a law banning the weapons. The guns are homemade, with a barrel, trigger and slide attached to a polymer frame — with no serial number, so police cannot track them when they are discovered after a crime.
But a new lawsuit argues that the city’s law is overly broad and outlaws all polymer-based guns, including the top-selling handguns made by Glock — which are issued to most D.C. police officers. (The law makes an exception for military and law enforcement users.)
The city has a poor track record in its attempts to restrict guns in the city, with its prohibition on gun ownership overturned by the landmark Supreme Court decision in District of Columbia v. Heller. Now a plaintiff in that suit, Dick A. Heller of Southeast Washington, is back with a challenge to the new ghost-gun law, as well as the District’s long ban on manufacturing weapons.
D.C. elected officials have long “adhered to a cynical policy of ‘self-government for me, but no self-defense for thee,’ ” wrote George L. Lyon Jr., Heller’s lawyer.
A spokeswoman for D.C. Attorney General Karl A. Racine declined to answer specific questions about the pending lawsuit, but said the office “will continue to do everything in our power to combat gun violence and improve public safety, including defending the District’s common-sense gun laws in court. We are proud the District has strong laws on the books to protect residents from gun violence.”
Heller declined to be interviewed, Lyon said. But he and other gun rights activists have won a series of victories over the District in the courts in recent years. The rulings have overturned a ban on weapons with a capacity of 12 or more rounds, a ban on carrying a weapon outside the home, a ban on possession of ammunition without gun registration, and a ban on nonresidents possessing a gun in the city. Last month a federal judge ordered the District to pay damages to six people who were arrested under gun laws that were later found unconstitutional.
Ghost guns are a relatively new issue for police nationwide. The materials to make them are easily purchased online, with instructions on how to mill, drill and assemble the parts into a working firearm. The frame, or “80 percent lower,” part of the gun is made of polymer, and holes must drilled into the polymer to attach the barrel, trigger and firing mechanism. Fully constructed polymer framed guns, made by manufacturers such as Glock, are popular because they are much lighter than metal-based guns. That’s an advantage for people who must carry guns on their hips all day, such as police officers and members of the military. The top 10 pistols sold on Guns.com last year were all polymer-based, with the Glock 17 and Glock 19 models used by D.C. police topping the list.
The homemade polymer guns are known as ghost guns because they don’t have a serial number, unlike those made by gun manufacturers, and purchasers of kits aren’t required to undergo a background check. The Bureau of Alcohol, Tobacco, Firearms and Explosives has ruled that the unfinished frames (for handguns) or receivers (for long guns) do not qualify as firearms because they cannot fire a projectile, and so are not regulated and are readily available on the Internet. The Biden administration has proposed a new rule to regulate the polymer frames and receivers, and a group of state attorneys general has filed a lawsuit against ATF demanding it regulate the unfinished parts.
Polymer-based guns are different from “3-D guns” made on 3-D printers, which are almost totally plastic and already illegal under the federal Undetectable Weapons Act. A 3-D gun is also a ghost gun, but police are finding very few of those because they have not proved sturdy enough to handle the heat of repeated firings.
In the District, the number of ghost guns found by police has been soaring: from 116 in 2019 to 306 last year to 327 in the first nine months of this year. D.C. police said one was found at the scene of a recent fatal shooting that followed a flag football game. In California, several people who were prohibited from buying guns legally turned to ghost guns to construct rifles and pistols used in mass shootings. In 2016, California began requiring those who make their own guns to obtain a serial number, place it on the gun and provide information about the owner to the state.
Heller’s lawsuit acknowledges that the District has “a legitimate governmental concern” in prohibiting untraceable firearms. But “it is astounding that the D.C. ghost gun legislation doesn’t say a word about requiring serial numbers.”
The suit also challenges a D.C. law that has been on the books since 1976: “No person or organization shall manufacture any firearm, destructive device or parts thereof, or ammunition, within the District.” Lyon wrote, “We know of no other jurisdiction in the United States that has purported to ban the manufacture of firearms.”
Mark Oliva, director of public affairs at the National Shooting Sports Foundation, said, “For a law-abiding citizen to make a firearm has always been legal. But D.C.'s never been shy about trying to infringe on Second Amendment rights.” He said laws already exist that prohibit felons, domestic violence offenders and others from owning guns, and those should suffice whether a gun is mass-produced or homemade.
But a federal judge in Nevada recently upheld a ghost gun law there, saying that gun owners “are not stripped of an opportunity to self-manufacture and assemble firearms and constituent parts so long as they are serialized,” as the law there requires. U.S. District Judge Miranda Du wrote that the law “does not severely burden Second Amendment protected conduct, but merely regulates it.” David Pucino, senior staff attorney for the Giffords Law Center to Prevent Gun Violence, said that “the right to make your own firearm at home, I can’t find that in the Second Amendment.”
In an affidavit, Heller said that “for some time I have desired to build my own firearm,” which he was willing to register and place a serial number on. So he ordered a kit to make a Glock-style 9mm handgun from a company in North Carolina, and had it shipped to one of the District’s two federal firearm licensees. A licensee is someone cleared by ATF to sell guns. The licensee in the District received the kit in April, consulted the D.C. police and was told to send it back, which it did. Thus, Heller had damages “by being deprived of his parts kit,” Lyon said.
Lyon then looked at the new ghost-gun law, which is similar to a federal law from the 1980s that banned plastic guns, when fears arose that plastic guns could be sneaked through metal detectors and onto airplanes.
The federal law requires that, after removing a gun’s handle and magazine, it still must have 3.7 ounces of detectable metal.
But the D.C. law requires the 3.7 ounces of metal after removing the gun’s barrel, trigger and slide, leaving only the polymer frame, which by definition isn’t made of metal.
The law defines a ghost gun as “a firearm that, after the removal of all parts other than a receiver, is not as detectable ... by walk-through metal detectors.” Removing “all parts other than a receiver” leaves only the polymer frame, Lyon notes in the lawsuit. “The District has apparently unwittingly made ... existing polymer frame handguns illegal.” There are two other plaintiffs in the suit who have mass-produced polymer-based guns that they fear are now illegal.
Pucino said the first section of the District’s definition was clearly aimed at plastic 3-D guns. But the law also defines a ghost gun as one that “includes an unfinished frame or receiver,” which would be most homemade guns. “Partially finished frames and receivers are left unfinished to skirt contemporary federal laws,” Pucino said. He said the Biden administration’s proposed change in the federal rules would require unfinished frames or receivers to carry serial numbers.
An “unfinished frame or receiver” is defined in D.C. law as “not yet a component part of a firearm, but which may without the expenditure of substantial time and effort be readily made into an operable frame or receiver through milling, drilling, or other means.” Heller’s lawsuit attacks that definition as unconstitutionally vague. The suit notes that the District’s concerns with ghost guns “could easily be addressed” by requiring unfinished frames or receivers to be registered and have serial numbers, and by requiring that transfers of unfinished frames or receivers be conducted by a licensed dealer accompanied by a background check.
Lyon is seeking a preliminary injunction against enforcement of both the manufacturing and the ghost-gun laws, and a declaratory judgment that both laws are unconstitutional. The city must file its first response by Oct. 18.
