MA GUN LAWYER

By William Smith, Esq. http://www.attorneysmithlaw.com

A federal court in Texas has handed Second Amendment advocates an important victory—one that could have significant implications far beyond Texas and, in particular, for Massachusetts’ aggressive new restrictions on privately manufactured and unserialized firearms.

On August 17, 2026, U.S. District Judge Reed O’Connor of the Northern District of Texas ruled that the federal government’s 2022 “ghost gun” regulation violates the Second Amendment, concluding that the regulation improperly burdens the longstanding American practice of individuals making and repairing their own firearms. The court also found constitutional problems with the rule under the Fifth Amendment’s Due Process Clause. The ruling came in litigation brought by Defense Distributed and the Second Amendment Foundation.

The decision is especially significant because it addresses a question that the Supreme Court expressly did not decide when it considered the federal ghost-gun regulation last year: whether restrictions upon privately manufactured firearms and the components necessary to build them can survive scrutiny under the Second Amendment.

The answer from Judge O’Connor is a powerful one: the constitutional right to keep and bear arms cannot simply be separated from the ability to acquire, construct and repair those arms.

THE RIGHT TO “KEEP AND BEAR” ARMS MUST MEAN SOMETHING

The federal regulation at issue was adopted by the Bureau of Alcohol, Tobacco, Firearms and Explosives in 2022. Among other things, it treated certain partially complete frames, receivers and weapons-parts kits as “firearms” under federal law. That classification subjected manufacturers and sellers to federal licensing, serialization, recordkeeping and background-check requirements.

Last year, the Supreme Court addressed the regulation in Bondi v. VanDerStok. But that case concerned principally whether ATF had statutory authority to treat certain weapon-parts kits and unfinished frames or receivers as “firearms” under the Gun Control Act. The Supreme Court upheld the regulation against that statutory challenge. Importantly, however, the Court did not decide the separate constitutional question whether application of the regulation violates the Second Amendment.

That constitutional question returned to Judge O’Connor. Applying the history-and-tradition approach demanded by New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), the court focused on something that modern gun-control advocates frequently overlook: Americans were making their own firearms long before anyone coined the politically useful phrase “ghost gun.”

As Judge O’Connor put it, the federal rule “contradicts the actual historical tradition of personal gunsmithing.” Even more pointedly, he observed that “[s]elf-manufacture of firearms in America was common and indeed foundational to establishing our Nation.”

That historical reality matters enormously after Bruen. The constitutional question is not whether a modern legislature believes unserialized firearms make law enforcement’s job easier or harder, nor whether judges consider serialization to be a sensible public policy. Bruen rejected precisely that sort of judicial interest balancing. The question is whether the government can demonstrate that the restriction it has imposed is consistent with this Nation’s historical tradition of firearm regulation. If Americans traditionally possessed the freedom to construct, maintain, repair and modify their own firearms, the government faces a serious historical burden when it attempts to transform that traditional conduct into a crime.

THE SECOND AMENDMENT PROTECTS MORE THAN THE FINAL OBJECT

There is another important principle lurking beneath this decision. The Second Amendment would mean remarkably little if the government could concede that an individual has a constitutional right to possess a firearm while simultaneously prohibiting him from obtaining the things necessary to acquire, construct or maintain one. Imagine applying that reasoning elsewhere in the Bill of Rights. Suppose the government conceded that the First Amendment protects newspapers but prohibited ordinary citizens from purchasing printing presses; acknowledged a constitutional right to publish books while prohibiting the acquisition of ink and paper; or conceded that people have a constitutional right to communicate over the Internet but claimed that computers themselves receive no protection.

Constitutional rights necessarily protect at least some conduct ancillary to exercising those rights. A right to possess arms that provides no protection whatsoever for acquiring, constructing or maintaining arms would rapidly become a right existing primarily on paper. Judge O’Connor’s decision recognizes that reality. According to the reporting on the decision, the court concluded that the federal regulation infringed the right to make or repair personal firearms by restricting access to components necessary to do so. That reasoning could prove far more important than the immediate dispute over so-called ghost guns.

“GHOST GUN” IS A POLITICAL TERM, NOT A CONSTITUTIONAL CATEGORY

The terminology itself deserves scrutiny. Calling a privately manufactured firearm a “ghost gun” makes an activity with deep historical roots sound like some novel technological menace. But privately manufactured firearms did not suddenly appear with 3D printers. For much of American history, there was nothing extraordinary about an individual manufacturing, assembling, repairing or modifying his own firearm. Serialization itself is a comparatively modern regulatory practice. The relevant constitutional inquiry therefore cannot begin in 2022—or even in 1968.

Under Bruen, the government must confront the historical understanding of the right to keep and bear arms, particularly around the Founding and Reconstruction eras. A legislature cannot manufacture a historical tradition simply by giving old conduct a frightening new name. That is precisely why Judge O’Connor’s observation about America’s tradition of personal gunsmithing is so consequential.

WHAT ABOUT THE SUPREME COURT’S 2025 GHOST-GUN DECISION?

Critics will undoubtedly respond that the Supreme Court already upheld the federal ghost-gun rule. That description is incomplete. The Supreme Court’s 2025 decision resolved the statutory question of whether ATF could regulate certain kits and components under the federal Gun Control Act. It did not decide the Second Amendment question now addressed by Judge O’Connor. Those are fundamentally different inquiries.

An agency can possess statutory authority to regulate something while the resulting regulation still violates the Constitution. Congress itself can enact a statute squarely within its legislative authority and nevertheless violate the Bill of Rights. Thus, VanDerStok did not give the federal ghost-gun regulation some permanent constitutional seal of approval. Judge O’Connor’s ruling takes up the constitutional question left unresolved.

It should also be emphasized that this is a federal district-court ruling, not a nationwide Supreme Court decision. The relief reported thus far protects Defense Distributed and members of the Second Amendment Foundation with respect to specified products; it does not automatically invalidate every federal or state serialization law nationwide. Further appellate litigation is entirely possible.

But as constitutional reasoning, the decision may provide a roadmap for challenges elsewhere.

THE MASSACHUSETTS CONNECTION

That brings us to Massachusetts, which should be paying very close attention to this case because the Commonwealth has adopted its own sweeping restrictions upon privately manufactured and unserialized firearms.

Under the Commonwealth’s current firearms statutes, G.L. c. 140, § 121C(a) declares that “[a]ll firearms shall have a serial number” meeting specified requirements. More significantly, § 121C(b) provides that, subject to limited exceptions, “[n]o person shall knowingly possess, manufacture or assemble, cause to be manufactured or assembled, purchase, offer for sale, sell or otherwise transfer or import an untraceable firearm in the commonwealth.”

Massachusetts also criminalizes conduct involving untraceable firearms through G.L. c. 269, § 11C. That statute reaches knowing manufacture, assembly, importation, sale or transfer of an untraceable firearm, as well as purchasing or receiving one with knowledge that it is untraceable. Remarkably, possession or control of an untraceable firearm constitutes prima facie evidence of a violation, although the statute permits the defendant to rebut that inference by showing lack of knowledge.

These provisions should now invite serious Second Amendment scrutiny.

MASSACHUSETTS HAS THE SAME HISTORY PROBLEM

The most obvious problem for Massachusetts is the same one identified by Judge O’Connor: Where is the historical tradition supporting the prohibition? Under Bruen, Massachusetts cannot simply walk into court and announce that serialization helps police trace firearms. Perhaps it does, but that is a policy argument, not the constitutional test. The Commonwealth must identify a relevant historical tradition supporting its restriction on protected Second Amendment conduct, and that may prove exceedingly difficult when the regulated activity—private firearm manufacture—was itself historically commonplace.

If privately making firearms was accepted at the Founding, and if the government cannot identify a sufficiently analogous historical tradition prohibiting citizens from possessing personally manufactured firearms merely because those firearms lacked government-mandated identifying numbers, then Massachusetts has a substantial Bruen problem.

The Commonwealth cannot point to colonial-era serialization requirements that did not exist, nor should a court accept modern firearm-tracing objectives as a substitute for historical evidence.

MASSACHUSETTS GOES DIRECTLY AFTER POSSESSION

In one respect, the Massachusetts statute presents an especially stark constitutional question. The Texas case concerned ATF’s regulation of kits, frames, receivers and related commercial activity. Massachusetts law expressly goes further by declaring that a person may not “knowingly possess” an untraceable firearm. That places the prohibition remarkably close to the core of the Second Amendment.

Suppose an otherwise law-abiding Massachusetts resident manufactures a constitutionally protected firearm for his own personal use, keeps that firearm in his home and never sells, transfers or uses it unlawfully.

What historical tradition permits Massachusetts to criminalize that person’s continued possession merely because the firearm lacks a government-approved serial number? That question deserves an answer grounded in history—not generalized statements about public safety.

The Supreme Court’s modern Second Amendment cases have repeatedly rejected the notion that legislatures may avoid constitutional scrutiny merely by invoking desirable governmental objectives. If the Second Amendment protects the arm and history protects the individual’s ability to make the arm, criminalizing possession solely because the individual made it without the government’s identifying mark presents an obvious constitutional issue.

THE HOME MAKES THE QUESTION EVEN MORE SERIOUS

The issue becomes still more pronounced when the firearm remains inside the owner’s home.

District of Columbia v. Heller, 554 U.S. 570 (2008), identified possession of a handgun in the home for self-defense as lying at the core of the Second Amendment.

Imagine, therefore, an individual who is legally entitled to possess firearms, manufactures an ordinary handgun or rifle for personal use, commits no violent act, threatens nobody, transfers the firearm to nobody and keeps it exclusively inside his home.

Massachusetts nevertheless purports to make possession of that firearm unlawful if it does not comply with the Commonwealth’s serialization requirements.

The constitutional issue practically writes itself:

Can Massachusetts criminalize possession in the home of an otherwise constitutionally protected firearm solely because the owner manufactured it himself and it lacks the serial number demanded by the Commonwealth?