Ghost guns are displayed at the headquarters of the San Francisco Police Department on Nov. 27, 2019. Haven Daley/Associated Press, file

As the U.S. Supreme Court deliberates over whether to uphold a federal rule regulating the sales of untraceable “ghost guns,” some legal experts say Maine also needs to take steps to ban these weapons.

The Bureau of Alcohol, Tobacco, Firearms and Explosives set a new rule in 2022 that expanded the definition of a firearm to include DIY gun-making kits, which are usually sold online. The end-product is a working, untraceable firearm without a serial number, dubbed a “ghost gun.”

For years it was a way for gun sellers to get around federal licensing and background checks. But the 2022 rule meant these sellers were now required to obtain federal licensing.

In Maine, this had a noticeable effect, according to Cumberland County District Attorney Jackie Sartoris – though law enforcement agencies said they couldn’t provide specific data for the state.

But Maine law doesn’t actually consider these kits firearms, and because of that, people who cannot legally own guns – if they have a felony conviction, for example – can legally purchase and possess ghost guns, up until the point when they are converted into a fireable weapon, Sartoris said.

“The whole idea of using a ghost gun is to fly under the radar, to not have any information out there,” she said.

Assistant U.S. Attorney Johnathan Nathans said a large part of his work is targeting criminals who are prohibited from owning guns.

Nathans said many people can legally own build kits, often from the manufacturer Polymer 80, but there is a subset of people who order them in private sales that don’t require background checks. Maine law requires background checks for gun sales advertised on sites like Facebook Marketplace and Craigslist, but doesn’t have a universal background check requirement for other sales.

“That makes it attractive to people that are prohibited or trying to engage in illegal activities,” he said.

Assistant U.S. Attorney Johnathan Nathans, coordinator for Project Safe Neighborhoods, at the U.S. Attorney’s Office in Portland on Friday. Shawn Patrick Ouellette/Staff Photographer

Some state lawmakers tried to close that loophole in 2019 and 2021.

The nearly identical bills would have defined undetectable and untraceable firearms under state law, and banned their manufacturing, transfer, sales and possession – a broader change than the federal rule offers.

But both bills failed. The first died in committee and the second failed in floor votes amid bipartisan opposition. Rep. Vicki Doudera, D-Camden, the founder and co-chair of the Maine Legislature’s gun safety caucus, said that won’t be the case in 2025.

She said her caucus has already discussed bringing another ghost gun bill forward next session. And after the Lewiston mass shooting, she anticipates the Legislature will take gun violence prevention more seriously.

HOW SERIOUS IS THE ISSUE IN MAINE?

The number of ghost guns seized by police skyrocketed nationally between 2016 and 2021, according to ATF data. In those six years, the agency went from 1,629 recovered ghost guns to more than 19,000.

Although Topsham is a small town, Police Chief Marc Hagan said the department still sees the same crimes as other towns, just on a smaller scale.

“For us the concern over untraceable firearms is truly a concern,” Hagan said in an email last week. “Add into the mix that tech savvy juveniles, that may not be monitored as closely as one would like in the home, could use 3D printers to build their own firearms, and this could prove to be a serious issue for someone.”

His department was tipped off in 2022 to a local teen trying to build a handgun with his 3D printer, but he wasn’t able to turn it into a functional firearm and police could never find the weapon, Hagan said.

The Portland Police Department only sees a handful of these firearms per year, said Lt. Nicholas Goodman. In many cases, the guns are dropped in a foot chase, he said.

While they’re nicknamed ghost guns because of their lack of serial number, Goodman said the department can still use other evidence to track down the owner.

“It’s like a fingerprint left behind,” Goodman said, referring to the bullets, casing and barrel.

Even if the guns had a serial number, they would still be difficult to trace if they were sold in a private sale, he said. That’s why Goodman said he supports the federal regulation on sellers.

“If you need a license to cut hair or do makeup, you should probably have a license to sell a gun,” Goodman said. “But at the same time, you have one or two people that do 100 dumb things that ruins it for everybody. That’s how law is made.”

His bigger concern is their safety.

Of the ones he’s seen, many are hastily assembled and unstable because they aren’t manufactured by an engineer, Goodman said.

“I wouldn’t stand behind one and pull the trigger,” Goodman said. “I’d be afraid it would blow up in my face.”

WHAT CAN BE DONE?

Though the 2022 federal rule regulates ghost gun sales, it doesn’t outlaw existing ghost guns or homemade, 3D-printed guns. Legal experts say if Maine wants full protection from ghost guns, it needs to pass its own legislation.

The Gifford Law Center, a nonprofit advocating for gun safety laws, gave Maine a “D-“ for its gun laws this year, a small uptick from the failing grade it had the prior year.

David Pucino, the organization’s legal director, said Maine should mirror the federal law’s definition of a firearm and, ideally, make untraceable guns illegal. While that would require everyone to have serial numbers on their firearms, it won’t effect lawful gun owners, Pucino said.

“You just go to the gun dealer, they put a serial number on, they keep the record,” Pucino said. “If that gun is never used in a crime, no one ever hears about it again. But if it is used in a crime … it gives law enforcement the ability to trace that gun.”

State laws can extend above and beyond federal regulation as long as they are consistent with the Second Amendment, said Margaret Groban, a former federal prosecutor who sits on the board of the Maine Gun Safety Coalition, which advocates for gun safety legislation.

“Firearm laws are best if they’re both at the federal level and at the state level because we have limited federal law enforcement in the state,” Groban said. “Having a corollary state ghost gun law would be very helpful for local law enforcement.”

While state laws would make prosecuting ghost gun owners easier, companies should also be held responsible for selling these weapons, Pucino said.

“The attorney General and city attorneys really have the ability to hold the bad actors of that industry accountable for the harm that their products cause,” Pucino said.

Nathans, the federal prosecutor,  also serves as the coordinator of the Maine Department of Justice’s Project Safe Neighborhoods, an initiative created to reduce gun violence nationwide.

He said its goal is to work with local service and advocacy groups to educate the community about topics like illegal gun ownership and domestic violence. In turn, he said, that work can help curb violence from untraceable firearms.

“It’s that idea of violence interruption, making sure that this potentially vulnerable population – either people that are addicted to controlled substances or people that are victims of domestic violence – that they’re not acquiring firearms for people that are prohibited,” Nathans said. “Be that a privately manufactured firearm or be it a serialized firearm.”