This article came across my newsfeed:

Design of AR-15 could derail charges tied to popular rifle

What?

A subtle design feature of the AR-15 rifle has raised a technical legal question that is derailing cases against people who are charged with illegally buying and selling the gun’s parts or building the weapon.

At issue is whether a key piece of one of America’s most popular firearms meets the definition of a gun that prosecutors have long relied on.

For decades, the federal government has treated a mechanism called the lower receiver as the essential piece of the semiautomatic rifle, which has been used in some of the nation’s deadliest mass shootings. Prosecutors regularly bring charges based on that specific part.

But some defense attorneys have recently argued that the part alone does not meet the definition in the law. Federal law enforcement officials, who have long been concerned about the discrepancy, are increasingly worried that it could hinder some criminal prosecutions and undermine firearms regulations nationwide.

What?

“Now the cat is out of the bag, so I think you’ll see more of this going on,” said Stephen Halbrook, an attorney who has written books on gun law and history. “Basically, the government has gotten away with this for a long time.”

The government has gotten away with what?  The AR-15 lower receiver has been the serialized firearm part since the gun was first sold to the public.

This is some odd legal fuckery going on.

Cases involving lower receivers represent a small fraction of the thousands of federal gun charges filed each year. But the loophole has allowed some people accused of illegally selling or possessing the parts, including convicted felons, to escape prosecution. The issue also complicates efforts to address so-called ghost guns, which are largely untraceable because they are assembled from parts.

Oh for fuck’s sake.  This is some serious legal fuckery going on.  If it has a serial number, it’s an ATF regulated and controlled part.

I want to meet the defense attorney that says “this has a serial number on it, in total compliance with the ATF, but my client isn’t guilty because this isn’t a gun.”  How does that guy walk with balls that big?

Federal regulations define a firearm’s “frame” or “receiver” as the piece considered to be the gun itself. But in an AR-15, the receiver is split into upper and lower parts — and some of the components listed in the definition are contained in the upper half. That has led judges to rule that a lower receiver alone cannot be considered a gun.

The lower receiver sits above the pistol grip, holds the trigger and hammer, and has a slot for the magazine. By itself, it cannot fire a bullet. But by treating the piece as a firearm, the Bureau of Alcohol, Tobacco, Firearms and Explosives is able to regulate who can obtain it. Because authorities consider the part to be a gun, people prohibited from having firearms have been charged for possessing them.

How?  According to the ATF: “Firearm Frame or Receiver.
That part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel. 27 CFR § 478.11.

The lower receiver houses both the hammer and firing mechanism, i.e., the trigger, and sear.  Note that “hammer, bolt, or breechblock, and firing mechanism” is the wording.  So the firing mechanism and one of the following “hammer, bolt, or breechblock.”

“By itself, it cannot fire a bullet” is not an ATF definition.  No handgun frame “by itself, it cannot fire a bullet” but does hold the firing mechanism, i.e, trigger and sear.

In 2018, prosecutors said a ruling against the government would “seriously undermine the ATF’s ability to trace and regulate firearms nationwide.” CNN first reported the case and its implications.

Last month, a federal judge in Ohio dealt the latest blow, dismissing charges against two men accused of making false statements to buy lower receivers.

“Any public citizen would be concerned about this loophole that we exploited,” said attorney Thomas Kurt, who represented defendant Richard Rowold. “As a citizen, I hope the ATF corrects this. As Mr. Rowold’s attorney, I’m grateful the judge followed the law in getting to the correct result.”

How did the judge come to the correct result?  This is a 40-year-old ATF decision that the entire industry stands by.  They made false statements to buy serialized components, that should be cut and dry.

The gun industry estimates there are more than 17 million AR-15-style rifles in circulation, and the National Rifle Association once dubbed it “America’s rifle.” AR-15-style weapons were used in attacks in Newtown, Connecticut, Las Vegas and Parkland, Florida.

In the case of Rowold, who is prohibited from buying or possessing firearms because of felony convictions, the government claimed that he used another man as a proxy to purchase 50 lower receivers. The 2018 indictment also charged him with having 15 lower receivers. Kurt declined to comment on why his client had the parts.

The case rested on the ATF’s claim that the components were legally firearms. Judge James Carr called that a “plainly erroneous” reading of the law and said the agency has a duty to fix the problem.

I’m absolutely flabbergasted here.  A serialized receiver is a firearm by definition.  I can’t shoot anybody with a 1911 frame, Model 700 receiver, or a piece of bent sheet metal with some number scratched into it, but those still require transfer through an FFL.  That’s been the law since 1968.

“Misapplying the law for a long time provides no immunity from scrutiny,” Carr wrote in his order to dismiss.

Federal prosecutors in Rowold’s case and several others declined to comment. An ATF spokeswoman would not answer questions posed by The Associated Press but said the agency is “keenly assessing” Carr’s decision.

The problem has attracted attention at the highest levels of law enforcement.

Prosecutors argued that the case against Alejandro Jimenez should proceed even if the part “does not perfectly fit” the legal definition. The judge dismissed the charges.

The decision prompted Lynch to write that if the ATF wants an AR-15 lower receiver to be considered a firearm under the law, then it should pursue “regulatory or administrative action.” But there’s no public record of the ATF taking such a step.

Am I taking crazy pills?

This is copied straight from the ATF website:

The AR-15 lower receiver houses the firing mechanism is the serialized part and therefore is a firearm.  I’m not sure what the how Judges are not getting this?

“I can’t imagine why no one has taken the initiative to correct this,” said Dan O’Kelly, a former senior ATF agent and director of a gun-training company known as International Firearm Specialist Academy. His testimony has guided several defense attorneys.

In April, for instance, an Oklahoma man was charged with illegally possessing a firearm after police who pulled him over found loaded high-capacity magazines and the lower receiver of an AR-15-style rifle in his truck.

Jason Scott Pedro, a 37-year-old with a felony record for domestic violence, was sentenced in November to seven years in prison.

In one case, an ATF expert testified that the same principle could apply to many other firearms. Prosecutors worry that more rulings against the government could allow people prohibited from having guns to purchase weapons piece by piece with no regulation or background check.

My suspicion is the opposite, I’ll get to that at the end.

Franklin Zimring, a professor at the University of California, Berkeley School of Law, is skeptical of that claim and said the same behavior could often be prosecuted under state laws.

The AR-15 is a popular model for gun enthusiasts to legally build at home. The rifles are sometimes constructed out of partially machined receivers, often called “80% receivers,” which can be bought and sold without background checks and need not have serial numbers because they are unfinished.

The media has found out about 80% lowers and talks out of their asses about it.  I wouldn’t consider the 80% lower thing to be “popular” and I most certainly don’t recommend it, unless you know what you are doing.  I have seen too many shitty home-built lowers that don’t run.  When I say tolerancing in AR receivers is important, trust me, I know what I am talking about from experience.

And long before 80% ARs became “popular,” you could buy stamped sheet metal unfinished AK receivers.  All you had to do was bend them around a mandrel and drill two holes.  A Harbor Freight hydraulic arbor press was enough to do it and make an AK out of a Shotgun News parts kit (my God, I’m old).

If federal officials want to maintain control in this growing do-it-yourself gun market they need to first establish functional regulation of lower receivers, said Kristen Rand, legislative director at the Washington, D.C.-based Violence Policy Center.

“From a public safety standpoint,” she said, ”this is very important and isn’t just an in-the-weeds legal definitional problem.”

There is “functional regulation of lower receivers.”  Every time an FFL makes one, they have 24 hours to put a serial number on it and record it in their bound book.  From there, it’s traced through every licensed dealer to the first point of sale.  If you make your own and intend to transfer it, you get to fill out a Form 1.

This is what I think is happening.  Judge Carr is a Clinton appointee.  He also went to Harvard Law, so I’m going to assume he’s an Ivy League dipshit.

Right now the ATF has established pretty solidly that the AR-15 lower is the serialized receiver is a firearm.

What is the point of a judge ruling that it isn’t?

If the lower isn’t the serialized part, is the upper?  Not by the ATF definition.  So are both halves the receiver?  So which part gets the serial number?  By ATF regulations you can’t have two pieces be the firearm because if you split it in half you have no gun, then you could make a gun by simply buying all the pieces separately.

What I suspect is this is, it’s intended to be a regulatory gun ban by throwing the AR-15 lower into limbo.  Essentially ordering AR-15 production and sale stopped until the ATF figures out what to do.

This isn’t the first time that happened.  The FN FNC had issues like that.  The ATF initially declared the lower to be the serialized part, then the upper, then they weren’t sure, and imports were halted until they figured it out.  Then it was banned from import altogether in 1989.

To me, this whole thing is ridiculous because I am very familiar with the ATF regulations.  But I suspect that what is being done here is not out of ignorance but being done with nefarious intent.

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By J. Kb

18 thoughts on “ABC and a judge don’t understand ATF regulations and there might be serious ramifications for gun owners”
  1. J.Kb, I hear you and your frustrations. The ATF has stated that the AR-15 lower receiver IS the firearm and is the thing that must be serialized.

    The problem is that the law/regulations do not support that definition. The law/regulations state that the part that is to be serialzied/is the firearm is the frame (1911 ish stuff) or the receiver. The receiver is defined as the part of the firearm holding the fire control group AND to which the barrel is afixed or would be affixed.

    I looked into this when I first read about the CA decision. Since the AR lower doesn’t have an attachment point for the barrel, it is not the firearm. Because the AR upper doesn’t hold the fire control group, it isn’t the receiver. It only becomes a firearm when the upper is attached to the lower, per the law/regulations.

    The fact that the ATF has been interpreting the law/regulations such that they have designated the lower as the firearm is all well and good. And there are many people that treat it that way, including the courts.

    The issue is that, for a number of years now, defense lawyers have started to attack the prosecutions of prohibited people possessing AR lowers as “The AR lower is not a firearm, by law/regulation. If you want the AR lower to be the firearm, change the law/regulation.”

    I’ve used ‘law/regulation’ because I am unsure where the wording is coming from. Some of articles I’ve read state it is an ATF regulation, in which case it should be easy enough for the ATF to change the regulation to read whatever the heck they want it to read. On the other hand, multiple important people in DoJ have made requests to congress ATF to have changes made that I’m just not sure exactly where this stands.

    This came to light last summer when the ATF/DoJ dropped a case against a company/person that was having build parties. During the build parties, the person would come in to a CNC machine shop, load up a “chunk-o-aluminum” under the watchful eye of the shop owner/personal and then the person would press the green go button.

    Machines whir and spin and a short time later out pops a finished AR lower. (Yes, I know they might have to put it in the fixtures twice to get the side machining done.)

    The shop owner was busted for selling firearms to prohibited people and manufacturing firearms.

    The issue right now is that the ATF has ruled that you can’t use borrowed, leased, rented equipment to take an 80% to a 100%. So if I let somebody use my Bridgeport to mill an AR lower, I’m the manufacturer because I own the Bridgeport, even if I never touched the mill during the manufacturing, never touched the chunk-o-aluminum after the process started.

    There is even some question about people borrowing the jigs used to complete lowers with routers and drills. The ATF rules seem to state that the owner of the jig is the actual manufacturer of the firearm, not the person borrowing and doing the work.

    For this reason you can’t use Maker Labs to make AR lowers, not just becuase of the rules the Maker Labs might have in place, but because the ATF can rule that the owner of the Make Lab is the actual manufacturer.

    Also ruled illegal by ATF: Joint ownership (The group owning the equipment MUST get FFL to manufacture firearms), Selling the equipment and then buying it back, Leasing the equipment/space.

    There is even some concern with people that have their own machine shops using equipment that they are leasing/buying from somebody else. (For tax purposes, no business in MD owns anything they don’t have to. They lease it for X years, then buy the item at the end of X years from the leasing company for pennies. Thus the yearly tax bill doesn’t include the leased equipment. The leased equipment will normally be leased from an out of state entity that is not required to pay MD taxes)

  2. Haven’t the ATF also stated that some of the barrelled uppers are firearms? IIRC some of the 50 Cal adapters for ARs have been determined to be firearms by ATF.

  3. J, I think you’re reasoning about this backwards. The lower isn’t the “firearm” because it’s serialized — it’s serialized because the ATF has said it’s the firearm. So the question remains, is it really.
    To answer that question you have to look at the definition. And in a definition, commas are critical. You quoted the definition, but then you discussed a different text — different in that it has one more comma. The definition is “That part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism…”. Note “bolt or breechblock” and not “bolt, or breechblock”.
    That parses as: “..which provides (housing for the hammer), (bolt or breechblock), and (firing mechanism)”. In other words, “(housing for the hammer) and (bolt or breechblock) and (firing mechanism)”. Three elements, all required. The AR-15 lower contains the first and third but the “bolt or breechblock” resides in the upper, right? That means that there isn’t any part of the AR-15 that meets the definition.
    BTW, the barrel attachment isn’t the issue because that isn’t essential to the definition.

      1. My initial reaction to the most recent case that spawned all this pearl clutching was the same: “but wah? Handugns are like that, why hasn’t that come up before”.

        Except after thinking about it a bit (and happening to do so while messing around with one of my .22 rifles) they really aren’t like that. Rifles have bolts and breechblocks, handguns less so. So first possible interpretation is that if it doesn’t have it, it can be used to to exclude it for the definition. You apply the definition to the bits it has. The second interpretation is to consider those bits as generally referring to the parts that hold the cartridge and seal against the chamber. In a semi-auto pistol, that would be the slide. Where is the slide housed? It attaches to the frame.

        IMO I don’t see it being hard to argue this case on the BATFE’s side of it. NOt all firearms have all the referenced parts. Take a revolver. Tell me which part is the bolt of breechblock? Is it not a firearm?

        The question is why has the BATFE bailed on cases? And they have been dodging it for a while, this isn’t new. Granted, any argument you can present for the AR platform looks odd when you trot out the SCAR platform.

        I suspect the real reason they are bailing is weird and alien to the non bureaucratic mind. Like they are trying to put these people away because they are claiming the person who set things up and pushed the button isn’t the manufacturer, the person who set up the CNC code is. Or provided supervision. Or… Perhaps it is digging a deep hole where their own argument could be used to demonstrate that deliberate large scale manufacturing that ignores the BATFE isn’t really making the firearms. The company that made the machinery and software running on it is. If they win, they set a fairly bad precedent about shifting culpability elsewhere.

    1. pkoning, thank you. Breechblock is the correct term and I miss phrased it as “barrel attachment”. My error

  4. I think you might be right in that this will become a ‘stop production’/effectively a ban, until the wording is corrected on a LOT of firearms, including semi auto pistols… dammit

    1. the only problem with this interpretation is “under what authority?”. If such devices are not actually firearms then there is no federal authority to regulate them under any existing law. The feds do not have blanket authority to come in and tell someone “you cannot manufacture that not-gun”.

      Now they *might* be able to say something about selling both pieces assembled together, since that meets the definition of “firearm” under other statutes, but the simple solution there is to just sell them as separate pieces and let the law figure out what to do with a consumer that stick them together (probably nothing, since there is no prohibition against the self assembly of a firearm).

      The danger, as I mention in another comment, is that once this becomes a topic of interest to legislators then the fix will be rash, ill thought out and punitive.

  5. If the lower is ‘not a gun’ then a complete lower is ‘not a gun’.
    Neither are the upper, complete or not.

    Being ‘not a gun’ then neither would be under ATF purview (exempt from regulation).

    That would seem to be the logical conclusion of Judge Pakalolo’s decision – ATF would have no more regulatory oversight than they do over a can of beets (or any other ‘not a gun’). How would ATF have any authority to regulate anything ‘not a gun’.

  6. The ban on imports has nothing to do with local production. Imports are not governed under the same set of laws, nor are the subject to the same level of scrutiny as local manufacture.
    If this ruling holds what will happen is AR pattern rifles, as well as most pistols, will suddenly be not-guns under federal law. This means the ATF will lose regulatory oversight on them.
    Any attempt at further enforcement will have to contend with this ruling when attempting to establish the legal basis for the ATF regulating production, distribution and sales.
    Now what this *could* prompt is a rash, hurries and ill though out amendment to fix the problem. Something along the lines of allowing a single firearm to have multiple serialized parts (goodby mail order uppers), a redefinition of the word “receiver”, with as-yet-t-be-determined ramifications, or an expansion of the law to allow the ATF to regulate “firearm parts” in general.
    But be clear, this rash rewriting of the law to close the loophole is the real danger, not the ruling itself. The ruling itself *diminishes* the power of the ATF over these, uh, devices. Until the law is changed this is actually a huge win, but it is a conditional win, with a giant other shoe waiting to be dropped. How that other shoe falls will determine if this win winds up being good or bad, and as far as I can tell no one know how that will go, as this issue with the original law is not even on the radar of most legislators yet.

  7. Sounds like the solution is that we, yes WE find a way to change the Congressionally passed NFA law to make it conform to what our previous understanding was. There is no freaking way that the BATFE or Congress will allow some or ANY guns to be no longer regulated by the NFA. Congress is more likely to use that little problem to BAN nonconforming AR rifles and pistols.

    The key is to make the actual Congressionally passed law conform to what we previously agreed to in the regulations. Maybe it is as simple as adding commas, or saying two of the three features? But make the resolution SIMPLE! And if we are going to agree to that, offer a deal legalizing suppressors too.

    Take control of the situation and offer a deal, before through our inaction we are given a completely unacceptable fix by Bloomberg and the gun banners. Is the NRA, SAF, or GOA willing to lead this effort?

    And expect the 2A absolutists and the “I will gun activist for money” crew to denounce you. I fully expect this comment to get scorched.

    1. Finally someone in the comments who gets it.

      I can’t tell you how many comments I’ve seen (some here, most other places) that essentially say “the lawyers are right, they ATF is wrong, the AR doesn’t have a receiver the way the law is written so it’s not a gun and can’t be regulated and we will be able to buy all the serial number free ARs we want, hooray!”

      NO!!!

      The government won’t ever let that slide. They will flat out ban it instead, and the over correct to ban it will take out any similar split receiver designs like the FAL an SCAR, and maybe semi auto handguns as well.

      We won’t win, we will lose bigly. I don’t get how gun people can’t see that.

      1. My wife has a habit of telling me when I launch into a complicated discussion that I have to cut to the chase and make it simple for people to understand. The concern of how the government might react to this wasn’t what I understood in your original post — that seemed more like an argument that the judge was wrong. I didn’t see the part of “what will they do to us now?”
        I think that (a) the judge is right, but (b) you’re correct, a remedy is needed that allows existing guns to remain legal.
        The interesting puzzle, what with all the possible designs, is how a replacement rule could be written. Would it work simply to define the serialized part to be the one that holds the trigger? That would also cover oddities like the Sig P250.

  8. The Judge ruled correctly. The Lower Receiver is NOT a Firearm. It has no way to attach a barrel. You answered your own argument with this quote.
    “Firearm Frame or Receiver.
    That part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually THREADED AT ITS FORWARD PORTION TO RECEIVE THE BARREL. 27 CFR § 478.11.”
    “The ATF’s Definition of an AR-15 Lower as a ‘Firearm’ Is In Serious Trouble – The Truth About Guns”
    https://www.thetruthaboutguns.com/the-atfs-definition-of-an-ar-15-lower-as-a-firearm-is-in-serious-trouble/

    1. Almost. You misread it a bit. Firearm Frame or Receiver.
      That part of a firearm which provides housing for the
      hammer,
      bolt or breechblock,
      and firing mechanism,
      and which is USUALLY threaded at its forward portion to receive the barrel.

      So the definition requires that the receiver have housing for the hammer (which the lower does) the bolt or breechblock (the lower doesn’t) and the firing mechanism (which is not defined in the statute). The threading for the barrel is only USUALLY there, so it is not required.

      Since the lower is not a firearm, it would take a change in the law to make it so. This is something that the Feds have been avoiding for awhile.

  9. ““hammer, bolt, or breechblock, and firing mechanism” is the wording.”

    That right there is your problem. You misread the law. It’s actually “hammer, bolt or breechblock, and firing mechanism”. Note comma placement. When you parse that out, it’s:

    1. hammer and
    2. bolt or breechblock and
    3. firing mechanism

    All of them; not firing mechanism and any one of the others.

    These judges are noting that the AR was something new that the law didn’t presciently take into account. Instead of the ATF deciding, “Well, this part comes close enough,” Congress needed to create legislation to change the definition.

    “The AR-15 lower receiver houses the firing mechanism is the serialized part and therefore is a firearm.”

    Incorrect. That works on an empirical basis for an FFL tracking inventory, but legally it works the other way. It isn’t a firearm BECAUSE it has a serial number; it has a serial number because it — by current ATF misunderstanding — IS a firearm.

  10. “I can’t shoot anybody with a 1911 frame, a Model 700 receiver, or a piece of bent sheet metal with some number scratched into it, but those still require transfer through an FFL. That’s been the law since 1968.” Only another reason that 1968 panic inspired, unconstitutional, copy of Nazi gun laws should be abolished. To make yourself sad, review the massive infringements on our freedom that came with that 1968 act. Review a copy of Shotgun News from 1963–1967 and reflect that all those firearms could be shipped directly to your door, no FedGov involvement at all. When I was a child, this was a free country. Now, not so much….

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