'Ghost gun' rules prompt Second Amendment debate
April 21, 2022
CHEYENNE — When President Joe Biden announced a new federal rule banning the manufacture of unserialized, privately made firearms on Monday, Sen. Anthony Bouchard, R-Cheyenne, went to social media to defend his Second Amendment protection bill that was killed in the 2022 budget session.
Senate File 87 would have prohibited the enforcement of unconstitutional federal actions infringing upon Second Amendment rights, denied immunities for law enforcement and provided cause for civil action against officers who knowingly denied law-abiding citizens the right to bear arms.
“My bill, SF-87 REAL SAPA was for this day with Biden’s Executive Order,” he posted to his congressional campaign page. “The RINOS Killed the bill.”
He shared with the Wyoming Tribune Eagle his concern that without his legislation in place, Wyoming residents would be at risk of federal overreach and loss of their gun rights.
The executive action recently taken by the Biden administration not only impacts gun manufacturers, it updates regulatory definitions of firearms. It is meant to reign in the increasing number of unserialized, privately made firearms that are known as “ghost guns,” according to the announcement. The president said the decision was influenced by the more than 20,000 suspected ghost guns reported in 2021 to the Bureau of Alcohol, Tobacco, Firearms and Explosives that were recovered by local law enforcement in criminal investigations.
Due to the difficulty involved in tracking the weapons without the serial number to the individual purchaser, the final rule put forward bans the manufacturing of the most accessible ghost guns.
One of the most popular is the unserialized “Buy-Build-Shoot” kits that can be purchased online or at a store without a background check. They can be assembled in as little as 30 minutes with common household tools.
“You know, if you buy a couch you have to assemble, it’s still a couch,” Biden said in his speech announcing the federal action. “If you order a package, like this one over here, that includes the parts you need, the directions for assembling a functioning firearm, you bought a gun.”
As well as banning the manufacturing, he included provisions that will turn some ghost guns already in circulation into serialized firearms. Federally licensed dealers and gunsmiths are required to take any serialized firearm into inventory to serialize it before they sell it to a customer, regardless of whether it was made from individual parts, kits or 3-D printer pieces.
Outside of his actions on ghost guns, Biden placed regulatory definitions and requirements on firearms with split receivers. By updating the regulatory definitions of “frame” and “receiver” to include multi-parts, he ensured the weapons are subject to serial numbers and background checks when customers purchase them from a licensed dealer, manufacturer and importer.
Finally, federally licensed firearm dealers have to retain key records until they shut down their business or licensed activity. They then transfer their records to the ATF, which is common practice, but now they are not permitted to destroy records after 20 years.
Although these do not directly ban individuals from possessing or the sale of unserialized firearms, Bouchard said the nation and Wyoming are a part of an experiment now. Instead of Congress passing a law, the executive branch is using the administration of rules and orders to control the circulation of weapons.
Bouchard, a founding member of Wyoming Gun Owners, condemned the action and said even the former President Barack Obama believed it was ultimately the responsibility of Congress to address gun control, not the executive branch. Obama announced efforts in 2013 to support gun safety measures following a series of shootings, but, ultimately, he asked for action by lawmakers to develop laws requiring a universal background check, to ban assault weapons and to create tougher penalties.
Now, Bouchard said he fears this ideal won’t be upheld. This is one of the reasons he said his Second Amendment Preservation Act should have been passed, because it would have protected citizens and provided significant recourse if their rights were infringed upon.
“Now that this shift is coming back and going through administrative changes, it’s flat out wrong,” he said. “And that’s why we needed to stand up during our last session, instead of sitting on our hands.”
But there was action taken by the Wyoming Legislature.
Instead of introducing Bouchard’s legislation, lawmakers passed a separate bill called the Second Amendment Protection Act. The two bills created a division among senators and representatives, because there were arguments made on the floor that Senate File 102 wasn’t strong enough. The Cheyenne lawmaker continues to be one of the harshest critics of the bill, and said those who supported it showed their true colors and do not care about the values of Republican constituents.
Bringers of the bill said this is not the case, and there was a reason the Second Amendment Protection Act received the majority of support from legislators and law enforcement.
“I would expect him to say that,” bill sponsor Sen. Larry Hicks, R-Baggs, told the Wyoming Tribune Eagle. “He’s got to defend a bad piece of legislation.”
Hicks said Bouchard cannot admit SF 87 would have provided no relief for citizens under the argument of nullification of federal law, and would have put police officers at risk of thousands of dollars of legal fees. He argued if they removed qualified immunity for law enforcement, which was outlined in the bill not passed, there was risk of civil action every time a cop inadvertently implemented a federal law. This doesn’t mean there wasn’t a punishment for those who knowingly infringed upon Second Amendment rights, it was just done in a different way.
“They want people to be able to sue the cops personally to get their houses, to get their children’s college education trust fund,” he said. “That’s the difference in the bill. We said there’s a criminal penalty here.”
SF 102 first declares authority under the U.S. Constitution and Printz v. United States that prohibits the enforcement of federal regulation of firearms, accessories, magazines and ammunition.
“This state and all political subdivisions are prohibited from using any personnel or funds appropriated by the Legislature of the state of Wyoming or of Wyoming to enforce, administer or cooperate with any unconstitutional act, law, treaty, executive order, rule or regulation of the United States that infringes on or impedes the free exercise of individual rights guaranteed under the Second Amendment to the Constitution,” it states.
Following the standing and prohibition of enforcing actions such as the Biden administration’s on Monday, it lays out guidelines for public officers. Although nothing in the bill limits or restricts a public officer from providing assistance to federal authorities in other areas, or accepting federal funds, there are still consequences for enforcing an unconstitutional act. Violators who knowingly committed the misdemeanor are at risk of up to one year of jail time, a fine of $2,000 or both.
However, Bouchard and other critics of the bill said they have an issue with the fact that there is no way for citizens to take action into their own hands. The public officer would have to be prosecuted by local authorities, and no civil damages could be given out to those impacted. During the session, some legislators even alleged legal authorities might not take action against law enforcement agents they continually work with.
Wyoming Association of Sheriffs and Chiefs of Police President Dwane Pacheco, an advocate for the bill, said this was the furthest from the truth. He said there was no question that a county attorney would prosecute a police or peace officer, and he had seen cases where they were charged across the state.
“I feel like law enforcement officers are held to a higher standard because of who we are and what we do for a living,” he told the Wyoming Tribune Eagle.
While there is a debate over how the bill works and which is more effective, the Rock Springs police chief also said he is not concerned about the impacts of the most recent executive order in regards to local law enforcement anyway. He said often executive orders impact federal agencies, such as ATF or the FBI, and they don’t participate.
He said the cases where Second Amendment rights might be infringed upon by a police officer are often when weapons are seized directly. Because there are very few instances where Wyoming residents would be at risk of their weapons being taken by an officer, such as a domestic violence or other criminal act, he said the chances are even lower.
“I’ve heard from my officers, ‘They are coming to take our guns,’ And I always look at them, and I always say, ‘Who is they? They is we,’” Pacheco said. “That’s who the public thinks are coming to take their weapons. And I do not believe that law enforcement is going out and looking to take anyone’s weapons. We are Wyomingites, we strongly believe in the Second Amendment.”
The executive rule also has low risk in regards to weapon seizing because it directly impacts manufacturers and definitions under which certain receivers are placed; it does not ban the sale or possession of ghost guns by individuals. However, there may be certain barriers to purchasing an unserialized weapon now under the new definitions, which legislators and gun advocates are still concerned about.
Hicks said he is unsure whether the Biden’s administration’s action will even go into effect for manufacturers and licensed dealers due to a point similar to one made by Bouchard. He said not only is it unconstitutional to require a serial number on a firearm and infringes upon rights, it is not a law. He is confident lawsuits will be filed against the rule, and it is no different than the argument made against vaccine mandates through OSHA rules.
If no lawsuit is filed, he said, a risk assessment will be made. But he believes his bill will protect citizens when the legislation goes into effect in July, because unconstitutional acts will not be enforced in the state of Wyoming. He is also comfortable with the timeline, even as federal acts come to fruition. He said he wants the few months to analyze the legal options, create a tight argument for challenges and understand how it is going to affect people in Wyoming thoughtfully.
“When somebody comes out and announces these things, you really have to be clear-headed, thoughtful, and evaluate, instead of just running in there and jumping on a hand grenade,” he said.
This story was published on April 17