If you read the subject line and thought: “Duh, the lower, we’ve known that since the 60s.” you want to read on.
Yes, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has held for years that the lower ‘receiver’ is just that, the receiver of the AR-15 rifle. However, in a recent criminal defense, Joseph Roh challenged this common understanding.
Congress defined firearm in statute as part of the Gun Control Act. Roh and the ATF agree the definition of “firearm” includes a “frame or receiver.” 18 U.S.C. § 921(a)(2):
“The term “firearm” means (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. Such term does not include an antique firearm.”
Congress however did not define “frame or receiver.” Rather, this language was left for the implementing agency, the ATF, to define.
The Code of Federal Regulations
Many years ago the ATF went through the administrative rule making process to define a “frame or receiver.” The definition was published in the Federal Register and thereby became an enforceable part of the law. 27 C.F.R. § 478.11:
“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.”
Applying the CFR definition of frame or receiver to an AR-15 lower, Roh challenged the classification of the part as a receiver. In essence, he argued that the AR-15 lower did not have all of the characteristics of a receiver.
The ATF first countered that it had notified Roh privately, in writing, that the AR-15 lower was considered a receiver. However, the Judge was inclined to dismiss that argument. After examining the ATF’s private manner of classifying frames or receivers without resorting to the rule making process, the Court offered that such classifications, due to failure to follow the rule making process, did not constitute law. Further, Roh’s knowledge of the same was immaterial. “[Roh] certainly knew through correspondence with the AFT (sic) and visits that it was the ATF’s position that the lower receiver were “receivers.” But his knowledge of the AFT’s (sic) position does not give ATF’s unsupported position the force of law.”
The Judge then limited his examination of an AR-15 lower to the CFR definition of receiver. Applying the definition, the Judge found there to be four characteristics of a receiver: 1) hammer, 2) bolt or breechblock, 3) firing mechanism, and 4) usually threaded at its forward portion to receive the barrel. It is worth noting that the threading for a barrel is only usual, and a good argument could be made that such is not strictly required.
At trial, it was uncontroverted that an AR-15 lower does not contain a bolt or breechblock and is not threaded to receive a barrel. The ATF had to concede this point, and the Judge determined “the plain conclusion is that the finished receiver is not a firearm.”
Ruh – Roh Scooby!
Discretion is the Better part of Valor
Give the ATF credit. They know when to hold ‘em, when to fold ‘em, when to walk away, and when to run. The case, U.S. v. Roh, was brought in front of the Judge on a bench trial. After trial, and before a decision would be rendered, Roh motioned for summary judgment on the charges of making firearms and illegally selling firearms.
The Court, in more detail than above, analyzed the claim of manufacturing AR-15 lowers as receivers and concluded as shown. However, the Court also upheld a vanilla charge of selling firearms without a license. With the possibility of conviction on one charge, but a very unfavorable ruling on the other, the Court gave the parties a Tentative Order.
With the Tentative Order in hand, ATF and Roh quickly worked out a non-prosecution agreement and the case was dismissed without a decision. Thus nothing within carries any legal weight. But the reasoning remains and has been resorted to in other cases.
A frame or receiver must house four parts (arguably three), and the AR-15 lower only houses two of those parts. Strictly speaking, it does not meet the CFR definition of a frame or receiver. How will future Courts interpret such an argument? We may never know if the ATF embarks on a rule making exercise to fix the CFR, but if they don’t, expect this question to arise again. Especially if the ATF, under the Biden administration, attempts to further regulate ‘80% lowers.’