LEGAL NEWS FROM THE NATION’S CAPITAL JOHANNA REEVES, ESQ.
Seems like a pretty rudimentary question. For as long as many will remember, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has treated the lower part of the AR-15 receiver as the “firearm” for purposes of controls under the Gun Control Act of 1968 (GCA). As such, the lower is subject to the marking and recordkeeping requirements and transfer and possession restrictions of the GCA and implementing ATF regulations at 27 C.F.R. Part 478.
But how did ATF reach this conclusion, and how reasoned is its reasoning? The GCA at 18 U.S.C. § 921(a) defines firearm in pertinent part as “(A) any weapon … 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 … .” The GCA does not define what constitutes a frame or receiver, but the implementing regulations at 27 C.F.R. § 478.11 define firearm frame or receiver 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.” See also 27 C.F.R. § 479.11 (definition of frame or receiver in the National Firearms Act implementing regulations).
ATF’s determination that the lower receiver of the AR-15 is the controlled firearm appears to date back to 1971 in an internal Treasury memorandum that addressed how the split receiver of the M16 should be taxed. The author, J.R. Wachter, explains the challenges in bringing an enforcement action against persons possessing only the lower part:
The M-16 receiver is fabricated in two parts, and the Enforcement Division has determined that the lower portion should be considered the receiver … Both parts were necessary to function as a ‘frame or receiver’ in a machine gun. I can see some difficulty in trying to make cases against persons possessing only the lower part of a receiver, but insofar as the licensing, serial numbering, and special occupational tax requirements are concerned, I feel that this is the only practical solution.
(Text taken from the Firearms Law Deskbook, Stephen Halbrook at 126-127 (2017- 2018 edition).) There is no evidence this letter was ever published outside of a small group of government employees. See U.S. v. Jimenez, 1919 F.Supp.3d 1038, 1042 (N.D. Cal. 2016). Indeed, the conclusion that “both parts were necessary to function as a ‘frame or receiver’” has never been disproven. In 1972, the ATF issued a private letter in response to an inquiry from a gun seller in California stating that for the AR-15, ATF “has determined for the purposes of marking and control, the lower receiver … is the receiver.” However, this letter contains no supporting legal citations, and there is no evidence that ATF ever published this classification letter in the public domain. See id. at 1042. There may be other private letter classifications from the 1970s, but it appears, at least from the courts that have examined them, that none contain any legal justification.
It is uncontroverted that the lower receiver of an AR-15 does not contain all the parts listed in the regulatory definition of firearm frame or receiver. The bolt, breechblock, firing pin and certain parts of the firing mechanism are all housed in the upper receiver, and it is the upper receiver that is threaded at its forward portion to receive the barrel. The lower receiver, on the other hand, contains only two of the required parts, the hammer and the firing mechanism. And yet for years, it seems that many, not just ATF, just accepted as fact that the AR-15 lower is the controlled firearm. That is until 2016, when a public defender by the name of Jerome Emory Matthews challenged ATF’s treatment of the AR-15 lower on behalf of his client, Alejandro Jimenez.
The Jimenez Case
The case is U.S. v. Jimenez (Case No. 15-cr-00372-JD-1), and on June 6, 2016, the federal district court for the Northern District of California ruled to dismiss the indictment of Jimenez insofar as the government’s prosecution was based on the theory that he possessed a “receiver” (1919 F.Supp.3d 1038). Jimenez, a convicted felon prohibited from possessing a firearm under the GCA, was arrested for taking possession of an AR-15 lower receiver from an undercover ATF agent. The government’s case hinged on the lower receiver, and Jimenez filed a motion to dismiss on the basis that the meaning of receiver was unconstitutionally vague as applied to him because neither the statute nor the regulations provided him with fair notice that possessing an AR-15 lower receiver would constitute criminal possession.
In making his case, Jimenez pointed to the fact that the AR-15 lower does not fit the regulatory definition of receiver. And believe it or not, the government conceded this point. “In effect, it concedes that the plain language of the law does not answer the vagueness challenge. This is tantamount to acknowledging that even if Jimenez had read the rules and regulations, he could not have known that the lower receiver of the AR-15 would be covered by them” (Jimenez at 1041).
The court also found the government’s case weakened by the apparent randomness in ATF’s enforcement practices. Pointing to the agen
cy’s different approaches to split receivers (for example, the upper receiver for certain models is the controlled receiver, including the SIG SAUER 550 series, FN FAL, FN SCAR, FNC [the author notes ATF’s flip in Rul. 2008- 1, reversing its classifications since 1981 that the lower assembly is the receiver], while the lower receivers are controlled in other models). “How would any citizen, and specifically Jimenez, be on fair notice of these nuances? Where are these enforcement interpretations spelled out in plain language for all to see?” (Jimenez at 1044).
Isn’t that the million dollar question?
But the court did not stop there:
As a closing point, the Court is concerned about a troubling theme in the government’s argument on this issue. In essence, the government says that its construction of the gun laws should prevail, and Jimenez should go to jail because the ATF has consistently enforced that interpretation of the law … . The evidence of consistency and notice are weak … but even so, consistency alone does not make a practice constitutional, reasonable or fair … . Since the gun laws and regulations do not squarely state how split receivers for rifles like the AR-15 will be treated, ATF is perfectly free to take a totally different enforcement approach at any time.
Jimenez at 1045 (internal citations omitted).
When the trial court issued its ruling, the U.S. government ultimately declined to pursue an appeal. Why? According to Attorney General Loretta E. Lynch in a letter to Paul Ryan, Speaker of the U.S. House of Representatives, “[w]hether the district court’s decision is best understood as a vagueness ruling or, alternatively, as a conclusion that the relevant regulatory scheme did not cover the charged conduct, this case is not a suitable vehicle for appellate review.” She goes on to explain, “To the extent that [ATF] believes that the definition should encompass the lower receiver of an AR-15 or should otherwise be modified or clarified, the appropriate course is regulatory or administrative action, not an appeal of the district court’s decision in this case” (Atty. Gen. letter to Hon. Paul Ryan, Speaker of the U.S. House of Representatives, pursuant to 28 U.S.C. § 530D (Sept. 8, 2016) (available at justice.gov/oip/foia-library/osg-530d-letters/9_8_2016/download (last visited Nov. 6, 2019)). It is interesting to note that nothing seems to have happened in response to this letter. ATF Rul. 2015-1 that redefined manufacturing to include businesses and persons who make their equipment available to others for machining their own blanks had already been published by the time the court issued its ruling in Jimenez. This ruling is discussed further below.
The Roh Case
We come now to the case that actually was the impetus for this article. It has received a lot of attention recently, especially after CNN.com ran an article on October 11, 2019, titled, “He sold illegal AR-15s. Feds agreed to let him go free to avoid hurting gun control efforts.” (available at lite.cnn.com/en/article/h_deb1e97b7bab511078e934a7c3fe1e2e). No doubt many of you have already heard of this case.
U.S. v. Roh (Case No. SACR 14-167 JVS) involved Joseph Roh who ran a machine shop called Rohg Industries in Fullerton, California. Roh hosted AR-15 “build parties” wherein Roh made his machinery available to customers who would bring in their own partially machined blanks (commonly referred to as “80% receivers”) and push a button on the milling machine to initiate the process of machining a lower receiver. Roh would then complete assembly for each customer.
In 2014, Roh was indicted for willfully engaging in the manufacture of firearms, specifically AR-15 rifles, without a license in violation of 18 U.S.C. § 922(a)(1)(A) and also selling firearms without a license. The matter was tried before a judge in federal district court in February 2018. At the conclusion of evidence, Roh submitted a post-trial motion for acquittal, but the judge did not issue his preliminary draft order until 2019. Finding that Roh did not violate the law by manufacturing receivers, the preliminary draft ruling, which is not published and is not binding, prompted the parties to enter into a plea deal where Roh pleaded guilty in exchange for deferred prosecution for 1 year.
Even though the preliminary draft ruling is not binding and holds no precedential value, it is noteworthy that the judge agreed with Roh’s argument that the finished lower receiver is not a firearm. The judge rejected the government’s argument that ATF had classified the finished receivers as firearms, notwithstanding the conflict with the definition of frame or receiver in the regulations. The ATF classification is unpredictable, inconsistent and subjective:
ATF personnel simply make a determination in response to individual inquiries. Usually there is no consultation with ATF counsel. More significant for present purposes is that there is no way for the public to learn of the particulars of the classification system. The only way a person can learn of an AFT [sic] classification is to make direct contact with the AFT [sic]. It is clear that the ATF’s classification of articles as [a] firearm does not comply with the rule making process which brought into effect the public definition for firearm found in Section 478.11.
The judge also called out ATF’s private classification process as not conforming to the requirements of the Administrative Procedures Act:
It is clear that the ATF’s classification of articles as [a] firearm does not comply with the rule making process which brought into effect the public definition of firearm found in Section 478.11. The rule making process under the Administrative Procedures Act requires promulgation of a rule and eventual publication of the rule in the Federal Register. (internal citations omitted).
So this could be ATF’s Achilles heel. Recall my previous Legally Armed column, “Whatever Happened to ATF’s Public Guidance?” in Small Arms Review Vol. 23, No. 8 (Oct. 2019):
Isn’t an agency that operates entirely with private determinations undermining all our interests in transparent governance, effective oversight and the promotion of a level playing field? Private letter rulings by their very nature are ad hoc and susceptible to inconsistent application, which poses a significant detriment to licensed manufacturers, importers and dealers who are looking for guidance on agency interpretation of the law.
Neither the GCA nor the implementing regulations require ATF classification. However, both cases make clear that as far as ATF is concerned, the only way to know for sure that activity is lawful under the GCA is to obtain a private letter classification. This was also part of the government’s case in Wright. See the Legally Armed column, “Failed Prosecution Reveals Alarming ATF Practices in Classifying AR-Type Pistols as Short Barrel Rifles,” Small Arms Review, Vol. 23, No. 6 (June/July 2019).
In the Roh case, the government tried arguing that Roh received adequate notice that his activities constituted manufacturing firearms because of prior ATF correspondence. The judge rejected this reasoning, finding “[Roh’s] knowledge of the ATF’s position does not give ATF’s unsupported position the force of law. Significantly, in its discussion of Roh’s knowledge it cites neither case law nor statutory authority.”
ATF Rul. 2015-1
In the midst of the Roh case (after indictment but before trial), ATF published Rul. 2015-1, which held in part that “A business (including an association or society) may not avoid the manufacturing license, marking and recordkeeping requirements of the GCA by allowing persons to perform manufacturing processes on firearms (including frames or receivers) using machinery or equipment under its dominion and control where that business controls access to, and use of, such machinery or equipment.” However, this still turns on whether the process involves a “firearm.” The ruling explains that,
[W]hen a person performs machining or other manufacturing process on a blank to make a firearm ‘frame or receiver,’ or on an existing frame or receiver to make it suitable for use as part of a ‘weapon … which will or is designed to or may readily be converted to expel a projectile by the action of an explosive,’ that person has performed a manufacturing operation other than what is contemplated by the GCA of dealer-gunsmiths … . In this context, ‘machining or other manufacturing process’ includes making a frame or receiver, or taking any of the steps to man an existing frame or receiver functional—that is, suitable for use as part of a weapon that will expel a projectile by the action of an explosive. For example, in an AR-type weapon, ‘machining or other manufacturing process’ would include any activity that creates a fire control-cavity as designed. Although such an article may be classified as a ‘receiver’ when it is indexed, machining or other manufacturing process takes place to create a receiver when material is actually removed from the cavity so that the fire-control-components may actually be installed.
So does publishing a rule satisfy the issues raised in the Jimenez and Roh cases? Not necessarily. Federal agencies are prohibited from binding the public under the guise of interpretive public guidance. Under the Administrative Procedure Act, regulatory agencies must put rulemaking through the public notice and comment process. Consequently, any public guidance, such as rulings and open letters, do not have the force and effect of law and cannot bind the public in a manner that exceeds the scope of the law.
So ATF has been on notice since 2016 that the AR-15 lower arguably is not controlled under the GCA because it does not meet the definition of firearm frame or receiver. In the midst of this never-ending political season and the impassioned cries for more gun control, it is fair to presume ATF may try to revise its regulations to expand the definition of firearm frame or receiver. The public must be vigilant in demanding ATF act within the confines of the law. This includes any new rule or regulation.
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The information contained in this article is for general informational and educational purposes only and is not intended to be construed or used as legal advice or as legal opinion. You should not rely or act on any information contained in this article without first seeking the advice of an attorney. Receipt of this article does not establish an attorney-client relationship.
About the Author
Johanna Reeves is the founding partner of the law firm Reeves & Dola, LLP in Washington, DC (reevesdola.com). For more than 15 years she has dedicated her practice to advising and representing U.S. companies on compliance matters arising under the federal firearms laws and U.S. export controls. Since 2011, Johanna has served as Executive Director for the Firearms and Ammunition Import/Export Roundtable (F.A.I.R.) Trade Group (fairtradegroup.org). She has also served as a member of the Defense Trade Advisory Group (DTAG) since 2016. Johanna can be reached at firstname.lastname@example.org or 202-715-9941.
|This article first appeared in Small Arms Review V24N2 (Feb 2020)|