AR-15 lowers are not firearms

The anti-gun people are running up against the definition problems of an “assault weapon” at a more fundamental level.

Very, very interesting. The courts are reluctantly being our friends (emphasis added):

Nicolaysen argued that the definition of a receiver under the relevant federal code differed in various ways from the AR-15 component Roh was accused of manufacturing.

Under the US Code of Federal Regulations, a firearm frame or receiver is defined as: “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.”

The lower receiver in Roh’s case does not have a bolt or breechblock and is not threaded to receive the barrel, Nicolaysen noted.

He called the decision to classify it as a firearm nonetheless, the result of “secret, in-house decision-making.”

Nicolaysen accused the ATF of abusing its authority by pursuing Roh based on his alleged violation of a policy “that masquerades as law.”

He asked the judge to consider recommending that then-US Attorney General Jeff Sessions conduct a review to determine whether there were any similar cases pending around the country or past convictions “sustained on the basis of ATF policy, rather than law.”

Prosecutors acknowledged there were technical differences between the regulation and the lower receiver in Roh’s case, but said the ATF’s interpretation of the regulation was consistent with the intent of federal gun laws. The agency’s reading of the law “should also receive deference from this court,” prosecutors Shawn J. Nelson and Benjamin D. Lichtman argued.

Adopting the defense position, the prosecutors wrote, would be “manifestly incompatible” with the intent of the federal Gun Control Act and would “severely frustrate” enforcement of the law.

The prosecutors’ filing said a ruling in favor of the defense could impact the receivers for up to 90% of the firearms in America.

“The necessary result of this would be that the unregulated parts could be manufactured, sold, and combined with other commercially available parts to create completed, un-serialized firearms which would not be subject to background checks, and which would be untraceable,” the prosecutors wrote. “Defendant’s interpretation would mean that nearly every semi-automatic firearm could be purchased piece by piece with no regulation or background check before a prohibited person would have a firearm.”

Though the trial lasted less than a week, Selna deliberated for more than year. In April, he issued a tentative order in which he determined that the ATF had improperly classified the AR-15 lower receivers in Roh’s case as firearms.

He rejected the prosecution’s argument that the ATF’s interpretation of the regulation describing a receiver could reasonably be applied to the device at issue in Roh’s case.

“There is a disconnect,” the judge wrote.

Selna added that the combination of the federal law and regulation governing the manufacturing of receivers is “unconstitutionally vague” as applied in the case against Roh.

“No reasonable person would understand that a part constitutes a receiver where it lacks the components specified in the regulation,” Selna wrote.

Therefore, the judge determined, “Roh did not violate the law by manufacturing receivers.”

This may mean is that we may be able to legally get away purchasing AR-15 lower receivers and perhaps many semi-auto firearm frames without 4473s, background checks, and licensing.

If we can get this firmed up a little bit before congress can act there could be a huge flurry of gun sales that will give the anti-gunners difficulties for years. All those guns they thought they had registered and restricted can be made to legally disappear:

  • “You want that registered firearm I had a year or two ago? Yeah, I remember. I broke it up into parts and sold via the bulletin board at the gun range in the next state over.”
  • “Nope. I didn’t buy a gun over the Internet from the other coast. I just bought a few parts.over the course of a couple days.”

Another brick in the wall.

20 thoughts on “AR-15 lowers are not firearms

    • The AR-15 upper receiver does not contain a hammer or firing mechanism, in its assembled configuration.

      Thus it does not meet the statutory definition of the receiver of a firearm.

      I mean, if they redefined the statutory language to identify the receiver as “the single structural component of a firearm essential to keeping barrel, action and firing mechanism in working alignment, without which the firearm cannot be assembled”, then there may be some reinterpretation possible, but Congress thought it was clever and as usual, turns out just about everyone else is cleverer without really trying.

      • That’s because nearly everyone else concerned with the laws Congress enacts has better reading comprehension than virtually everyone in Congress.

        So, the BATFE has a regulation/ letter/ desk instruction that resolves these problems? And exactly when were these regulations/ letters/ desk instructions enacted by the Congress? Oh, they delegated to the Article 2 branch?
        How . . . Unitary. How . . . non-Constitutional
        How ripe for correction by a court not full of themselves as the savior of the world through “Progress” and “Progressiveness” by recreating the pre-1787 government structures of a monarchy.

  1. Regardless of what happens from such opinions if necessary eventually the commie left…with LOTS of help from the quisling RINO’s….will pass laws to
    redefine ‘firearms’ to insure that ALL parts of “assault weapons” are subject
    to control under the NFA and require a 4473….that is if they don’t just outlaw
    them altogether. The end goal of the left AND vast portions of the GOP is
    the TOTAL disarming of America. An occasional court ruling supporting the
    Second is merely a bump in the road to achieving that goal.

      • While I agree that describing Congress as dysfunctional is an accurate assessment I have zero doubt that they WILL
        eventually get around to passing whatever verbiage is required to continue their ongoing efforts to disarm us. If it
        becomes apparent that a court ruling would nullify the ability of BATFEces to control firearm transfers they would if necessary call an emergency session on Christmas to pass the needed laws to rectify that. And sadly I have zero doubt that even Trump would sign such a law.

  2. I don’t mean to be a wet blanket, but…

    It’s a defense case based on slightly ambiguous language, and as much as I like to see judicial victories, I don’t see this one sticking around.

    Allow me to explain my reasoning:

    Under the US Code of Federal Regulations, a firearm frame or receiver is defined as: “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.”

    IANAL, but parsing the language, the receiver (emphasis added):
    – “provides housing for the hammer, bolt or breechblock”;
    – “provides housing for … [the] firing mechanism”; and
    – “is usually threaded … to receive the barrel”.

    The “or” in the first section means it doesn’t need to have all three; any one will suffice.

    Similarly, the “usually” in the third section means the barrel threads are not required to be on the receiver in order for it to be regulated, but often are. It allows for variations in firearm designs that still will fall under the regulation.

    Really, the deciding factor (based on current firearm designs) is the firing mechanism, which for an AR pattern integrates the hammer with the trigger mechanism and houses the whole thing in the lower. Therefore, a plain-text reading of the regulation accurately defines the AR lower as the regulated receiver.

    If someone were to design a firearm receiver that contains the firing mechanism but no hammer, bolt, or breechblock (i.e. a fire control group that separates the trigger, hammer, and bolt into three different sections of the receiver) [hint hint!], then we might have a receiver that’s not covered by any existing regulation. But it won’t be an AR receiver, since an AR FCG integrates the trigger and hammer, and houses both in the same lower.

    • It’s their inconsistency about it which will lead to their undoing.

      They’re going to be asked why the upper of an FAL is the serialized part when the lower of an AR is.

      I’ve been trying to find another rifle where the trigger group is the serialized part and not the part with the barrel attached to it. Someone help me out here, but the AR seems to be the only example.

      • The Thompson-Center Contender series only serializes the trigger portion. The barrels are not serialized. They are quite popular in Europe because it lets the shooter shoot multiple calibers without having to register more than one firearm.
        Granted they are single shot, but it is an example.

    • That strikes me as an odd parsing of the sentence. I would parse it thus:
      – “provides housing for the hammer,”
      – [and] “provides housing for … [the] bolt or breechblock”;
      – “and provides housing for … [the] firing mechanism”;
      – “and is usually threaded … to receive the barrel”.

      It seems that generally in a comma separated list, the comma acts as an implicit “and.”

      • Agreed.

        I’m sure the government attorney attempted the same interpretation and failed. My guess is that the parsing here is the standard in all legal documents.

      • Hm. The way I interpret the English sentence “x, y, or z” is as “x or y or z”. Is the argument that “x, y or z” is different because there is no comma after y? Or is my recollection of English grammar wrong?

        • I read more carefully and now I agree with Bob. The sentence in question is “a, b or c, and d”. Which has to be parsed as “a and (b or c) and d”.
          Neat.

        • Or is my recollection of English grammar wrong?

          No, I think you are correct but that neither you nor I described the “rule” completely.
          Your example has an “or” before the last item in the comma separated list so the commas are acting as implied “or” operators.
          When the last item in a comma separated list is preceded by an “and” then the commas are acting as implied “and” operators.

          The statute adds a slight twist: one of the items in the list has an “or” clause that applies _only_ to that item and not to the complete list.

          • Agreed. So the bottom line is that the judge was right.
            Newer news says that ATF dropped the case to keep the draft ruling (which this was) from becoming a final ruling. That’s unfortunate, but of course the actual reasoning won’t be forgotten and can be adopted by another honest judge at a suitable time in the future.

  3. A recent article (Bearing Arms?) says the feds are quietly tossing cases that have this situation brought up by the defense, so the courts won’t get involved in fixing the ATF’s screwups.

  4. So… what does this make of a serlialized Glock (or any other striker fired semi auto pistol) frame?

    That doesn’t doesn’t seem to meet any of those qualifications.

    • Read the CNN article. In particular:

      The prosecutors’ filing said a ruling in favor of the defense could impact the receivers for up to 90% of the firearms in America.
      “The necessary result of this would be that the unregulated parts could be manufactured, sold, and combined with other commercially available parts to create completed, un-serialized firearms which would not be subject to background checks, and which would be untraceable,” the prosecutors wrote. “Defendant’s interpretation would mean that nearly every semi-automatic firearm could be purchased piece by piece with no regulation or background check before a prohibited person would have a firearm.”

      Good times may be ahead.

      • Or poorly thought out sweeping regulation. We would have been a lot better off if this particular can of worms had been opened a few years ago.

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