Under U.S. federal law, the creation and possession of homemade firearms for private use has always been legal. A person that seeks to sell or distribute firearms must obtain a federal license for manufacture and the firearm must bear a unique serial number. Privately created firearms do not generally have these serial numbers, making it extremely difficult for federal and state governments to trace them. These so-called “ghost guns”, while legal, are an incredible nuisance for the Bureau of Alcohol Tobacco and Firearms (ATF).
The firearm frame, or “receiver” is the part of the gun that provides the housing for internal components such as the hammer, bolt and firing pin. An “unfinished receiver”, also called an “80% receiver” is a hollow shell that can be sold without the requirement of federal or state background checks, and the purchaser can use this component to complete the construction of a functional firearm with normal machine or hand-held tools. In fact, 3D printers have made it popular to produce receivers from plastic and then complete the construction of the firearm from raw materials or components from other weapons. Since the internet is full of videos on YouTube or other hosting services that show how to build a gun, anyone with some mechanical proficiency can produce these weapons at home with relative ease.
Once the “ghost gun” is created, it will be subject to all of the restrictions under federal law. “Firearm” is defined as “(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device.” 18 U.S.C. §921(a)(3). For a homemade device that falls under this definition, the following statutes apply:
- RESTRICTIONS ON SELLING FIREARMS – It is unlawful for any person, “except a licensed importer, licensed manufacturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms or in the course of such business to ship, transport, or receive any firearm in interstate or foreign commerce.” 18 U.S.C. 922(a)(1)(A). The penalty for violating this statute is a felony conviction punishable by up to 10 years in prison. 18 U.S.C. §924(n).
- PROHIBITED PERSONS – It is unlawful for a “prohibited person” to use or possess a firearm under federal law. 18 U.S.C. §922(g). There are nine categories of “prohibited persons” that include felons, fugitives, unlawful users or addicts of controlled substances, person who have been involuntarily committed to a mental hospital by a court, illegal and non-immigrant aliens, persons dishonorably discharged from the armed forces, persons who renounced their U.S. citizenship, person subject to a domestic protection order, and persons convicted of domestic violence. A prohibited person who knowingly violates 26 U.S.C. §922(g) is guilty of a felony punishable by a fine and/or up to 10 years in prison, or both. 18 U.S.C. §924(a)(2). In addition, a prohibited person who knowing violates 26 U.S.C. §922(g) and has three previous convictions by any court for a violent felony or a serious drug offense, or both, committed on occasions different from one another, can be sentenced up to 15 years in prison (the court cannot suspend the sentence or grant a probationary sentence). 18 U.S.C. §924(e)(1).
- JUVENILE IN POSSESSION OF FIREARM – It is unlawful for any person who is a juvenile (under 18 years old) to knowingly possess a handgun or ammunition that is suitable for use only in a handgun. 18 U.S.C. §922(x)(2). The only legal exceptions to this rule are possession in the course of employment (e.g. ranching and farming), the juvenile is in the armed forces and possesses the weapon in the line of duty, or it is otherwise permitted under state law. A juvenile violating this law is subject to a misdemeanor conviction punishable by up to 1 year in jail. 18 U.S.C. §924(a)(6)(A).
Generally, federal criminal liability is not triggered until the firearm participates in “interstate and foreign commerce”, meaning that it crossed a state boundary or international border.
Michigan law does not prohibit the creation and possession of homemade guns, but there are several restrictions that residents should be aware of:
- SHORT-BARREL WEAPONS – Generally, “[a] person shall not make, manufacture, transfer, or possess a short-barreled shotgun or a short-barreled rifle” in Michigan. MCL 750.224b(1). A “short-barreled rifle” means a rifle having 1 or more barrels less than 16 inches in length or a weapon made from a rifle, whether by alteration, modification, or otherwise, if the weapon as modified has an overall length of less than 26 inches. MCL 750.222(k). A “short-barreled shotgun” means a shotgun having 1 or more barrels less than 18 inches in length or a weapon made from a shotgun, whether by alteration, modification, or otherwise, if the weapon as modified has an overall length of less than 26 inches. MCL 750.222(l). Any person who unlawfully violates this law is guilty of a felony punishable by a fine up to $2,500.00 or up to 5 years in prison, or both. MCL 750.224b(2). However, it is a complete defense if the short-barreled shotgun or short-barreled rifle is lawfully made, manufactured, transferred, or possessed under federal law and registered on the National Firearms Registrations and Transfer Record (which allows and includes short-barreled shotguns and short-barreled rifles). MCL 750.224b(3).
- ALTERING OR REMOVING PREEXISTING PARTS – It is one thing to build a firearm that never had a serial number because it is homemade, but it is a completely different issue to build a firearm from preexisting parts where serial numbers are changed or eliminated. “A person who shall wilfully alter, remove, or obliterate the name of the maker, model, manufacturer’s number, or other mark of identity of a pistol or other firearm, shall be guilty of a felony, punishable by imprisonment for not more than 2 years or fine of not more than $1,000.00.” MCL 750.230. “Possession of a firearm upon which the number shall have been altered, removed, or obliterated (other than an antique firearm) shall be presumptive evidence that the possessor has altered, removed, or obliterated the same.” Id.
- PISTOL REGISTRATION – Even if you create a homemade pistol, it will still be subject to registration with the State of Michigan. “Pistol” means a loaded or unloaded firearm that is 26 inches or less in length, or a loaded or unloaded firearm that by its construction and appearance conceals itself as a firearm. MCL 750.222(f). “[A] person shall not purchase, carry, possess, or transport a pistol in this state without first having obtained a license for the pistol…”. MCL 28.422(1). A person who fails to license a pistol within 10 days of acquisition is liable for a civil infraction punishable by a fine up to $250.00. MCL 28.422(5).
- JUVENILE IN POSSESSION OF FIREARM – “[A]n individual less than 18 years of age shall not possess a firearm in public except under the direct supervision of an individual 18 years of age or older.” MCL 750.234f(1). This doesn’t apply if the minor possesses a firearm in accordance with the Natural Resources and Environmental Protection Act. In addition, “an individual less than 18 years of age may possess a firearm without a hunting license while at, or going to or from, a recognized target range or trap or skeet shooting ground if, while going to or from the range or ground, the firearm is enclosed and securely fastened in a case or locked in the trunk of a motor vehicle.” MCL 750.234f(2). A person who violates this law is guilty of a misdemeanor punishable by a fine up to $100.00 or up to 90 days in jail, or both. MCL 750.234f(3).
If you have aspirations to construct your own firearm, it is critical that you understand all of the federal and state laws that could apply to your newly assembled weapon. It is a good idea to consult with a skilled criminal defense lawyer ahead of time. If you have any questions about firearm laws, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.