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Ghost guns on display at police headquarters in New York City, September 27, 2023
At the end of October, the Omaha City Council met in their wood-paneled legislative chambers for over four hours. For most of the session, the seven-member council considered gun control measures, including one that would prohibit the possession of certain components included in ghost gun kits.
Omaha 360, a citywide violence prevention program, has earned national acclaim. In an interview with The Washington Post this year, Omaha Police Chief Todd Schmaderer said that the city of half a million people has reached 40-year lows in violent crime since the city launched the initiative 15 years ago. But in recent years, ghost gun seizures have skyrocketed. Police recovered two ghost guns in 2019; so far this year, they’ve confiscated 65. But what troubles city leaders is that many of the ghost guns recovered in Omaha have been taken from juveniles.
Omaha City Attorney Matt Kuhse expressed two concerns about ghost guns in the meeting: the threat ghost guns pose to public safety and the state’s six-month-old preemption law that prohibits municipalities from enacting their own gun control regulations. Kuhse told the city council members that since ghost gun companies have evaded the more stringent federal regulations on fully assembled guns by marketing their products as “parts kits,” the city could make possessing ghost gun kits illegal without violating the state preemption law.
After consulting Kuhse, hearing a report from the police chief, and listening to public comments, Council President Pete Festersen, who introduced the ordinance, said, “I proposed taking local action because that appears to be our only option.” He called for the vote. With the vote tied 3-3, Councilmember Ron Hug, who passed when first called on, voted yes.
For now, it is unclear if Kuhse’s strategy of using the ghost gun industry’s loophole to sidestep preemption will hold up in court. Nebraska has a Republican governor, Jim Pillen, and a Republican majority in the unicameral legislature. Of the state’s two largest cities, Omaha has a Republican mayor, and Lincoln, a Democratic one, but both broke for President Biden in the 2020 election. The passage of the state preemption law in April, however, has exacerbated tensions between the two cities and the legislature since the law stripped Omaha and Lincoln of the power to enforce their stricter gun control regulations.
Moreover, last year, the Bureau of Alcohol, Tobacco, Firearms and Explosives expanded the definition of a firearm to include unfinished frames and receivers. By modifying the definition, the Biden administration forced commercial ghost gun manufacturers to obtain licenses to sell firearms and to include serial numbers on the frames or receivers. It also required ghost gun vendors to conduct background checks.
Omaha’s ordinance went into effect in mid-November. But on Monday, the Nebraska Firearms Owners Association filed a lawsuit in Douglas County District Court, challenging the city’s ghost gun measures as well as other municipal gun control measures in both cities. Nebraska state Sen. Tom Brewer, the sponsor of the preemption law, told the Nebraska Examiner that the cities “will lose.”
“Essentially the ghost gun problem arose because of loopholes in federal law that the industry was exploiting,” says David Pucino, the legal director and deputy chief counsel at the Giffords Law Center to Prevent Gun Violence, a gun control advocacy group.
In the last decade, ghost guns have gone from a novelty item to what some gun control advocates have called one of the country’s fastest-growing risks to public safety. “The Liberator,” the first 3D-printed gun in the United States, was a single-shot handgun that was liable to blow up in the shooter’s hand. But since that weapon’s 2013 debut, the ghost gun industry has taken off, raking in an estimated $9 billion annually.
In the last decade, ghost guns have gone from a novelty item to what some gun control advocates have called one of the country’s fastest-growing risks to public safety.
Ghost gun companies like Polymer80 sell kits that include parts of guns that can be easily converted into a working firearm. These kits include the main gun components: a frame for a handgun or a receiver for a weapon like the AR-15. Frames or receivers house the hammer, striker, bolt, or other part that fires bullets. The frames or receivers are only partially assembled, and usually require a drill to complete the assembly.
Once assembled, some ghost guns are nearly identical to a factory-made firearm. But they do not have the serial numbers that law enforcement agencies can use to determine a gun’s history. And since the kits contain only firearm parts and are not an actual fully functioning firearm, no background check had been required to purchase them—until last year.
There is no federal firearms registry, but annual firearm background checks usually offer a rough estimate of conventional gun sales: In 2022, the National Instant Criminal Background Check System processed over 31 million searches. That year, the Justice Department recovered more than 25,700 ghost guns domestically, likely a fraction of the number of arms on the streets.
According to Everytown for Gun Safety, 13 states have laws that require all gun component parts to have serial numbers, and 11 of those states mandate background checks to purchase gun parts as well.
Ghost gun companies immediately challenged the 2022 ATF final rule. In June, U.S. District Court Judge Reed O’Connor of the Northern District of Texas issued an injunction blocking the regulation. However, the Supreme Court has intervened twice on the issue and allowed the ATF change to remain in place while the case plays out in the lower courts.
In November, the Fifth Circuit Court of Appeals ruled that the government had overstepped by unilaterally changing the definition of a firearm but sent the case back to the district court. The new court challenges have introduced a legal gray zone: Some gun control advocates suspect that ghost gun companies still sell kits without background checks at in-person events like gun shows.
Pucino, of the Giffords Center, told the Prospect that he believes the Supreme Court may eventually have to decide whether the Biden administration exceeded its rulemaking authority.
More than 40 states have preemption laws that prohibit local communities from implementing their own gun control regulations. At the end of November, for example, a Montgomery County, Maryland, circuit court judge struck down a 2021 ordinance passed by the Montgomery County Council that banned, in part, privately made guns. The court ruled that the county could not pass regulations that superseded the state’s gun laws.
Omaha City Councilmember Don Rowe, who voted against the ghost gun ordinance, told the Prospect that even though he did not support the passage of the state preemption law, he thought the new gun ordinance was the wrong approach. He called it a “work-around” and feared that the move could expose the city to a costly legal battle.
