Law & the Courts

The ATF Has Been Enforcing a Rule That Does Not Exist

AR-15 rifles displayed for sale at a gun show in Oaks, Pa., in 2017 (Joshua Roberts/Reuters)
While Beto fantasizes about confiscating AR-15s, a court finds a shocking loophole in the way they’re regulated.

Anyone else sick to death of watching the Democrats debate each other already? Tuesday saw them rehash numerous conversations they’ve already had, and there are still eight excruciating nights of such television for us to endure.

Beto O’Rourke, for instance, once again loudly and obnoxiously announced his intention to confiscate semiautomatic “assault weapons” from their lawful owners. He said he “believes” that compliance will be forthcoming.

If I really need to engage with this nonsense, I’ll go ahead and note that the American people don’t support gun confiscation — even in polls where they endorse banning sales of new assault weapons; that compliance with gun bans is low pretty much everywhere; that his policy would violate the Second Amendment; and that there’s little solid evidence that blanket gun bans are effective in reducing crime. We’re not going to pass this law, we wouldn’t comply with it if we did, and the courts might not allow it anyway.

But with that out of the way, let’s address what should be an elephant in the room: While Beto was rambling on about his bizarre fantasies in which docile AR-15 owners happily identify themselves to the government and dutifully surrender their arms, our actual legal regime for regulating these guns came under serious threat from a case out of California — because the folks who are supposed to enforce the gun laws have royally messed up for decades.

To understand what’s going on here, you need a little bit of background. There are lots of rules about making and selling guns in this country: If you sell guns regularly as a business, you need to get a license and conduct background checks on your buyers; each gun a manufacturer creates for sale needs a serial number; etc. However, it’s generally legal to sell firearm parts without following those rules.

The exception is the “receiver.” Federal law treats this part — the frame that holds the gun’s guts, basically — the same way it treats an entire firearm. It needs to have a serial number and so on even when it’s sold by itself, preventing people from evading the law by simply buying and selling firearms piece by piece.

But this creates an issue for AR-15s, whose receivers themselves are divided into two parts. For these guns, the Bureau of Alcohol, Tobacco, Firearms, and Explosives treats the bottom part — the “lower receiver” — as the firearm for regulatory purposes. The only way to skirt the law is to sell “80 percent lowers,” hunks of metal mostly made into lowers but still requiring some machining. (It’s legal to finish these off yourself, but only for personal use.)

But wait a minute: Could the ATF’s usual practice be wrong? Is it actually flat-out legal to sell a completed lower with no serial number and no background check? That’s the issue raised by the recent case.

You can read the whole story over at CNN, and find the judge’s order here, but for our purposes, these are the important facts: A guy named Joseph Roh illegally manufactured and sold AR-15s and other guns through a slapstick scheme to avoid the law. A judge issued a tentative order against Roh — but in the process held that lower receivers are not firearms under current regulations, thus acquitting Roh of some of the charges. The government decided to let Roh off with a slap on the wrist rather than pursue the matter further, to prevent the order, as CNN puts it, from “becoming permanent, drawing publicity, and creating case law that could hamper ATF enforcement efforts.” It ended up on CNN’s website regardless, and anyone prosecuted for selling AR-15 lowers going forward will be tempted to try Roh’s defense.

How did this happen? Vague laws and poorly crafted bureaucratic rules.

Congress’s law on this matter simply refers to a “receiver”; it doesn’t define the word. The definition is found instead in the Code of Federal Regulations:

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.

This is very bad, for the reason noted above: AR-15s don’t have a single receiver. The bolt and threading are found in the upper receiver, while the hammer and firing mechanism are in the lower. Neither, in other words, by itself meets the definition of “receiver” in the regulation — and for decades the ATF has been enforcing, via its opaque in-house classification process, a rule that doesn’t exist in the official rulebook. As a result, someone who carefully reads both the law and the regulation is not on notice that it’s illegal to sell a lower receiver without a serial number and background check, and cannot rightfully be punished for doing so.

The upshot? Here’s how the government put it in a filing noted by CNN, warning the judge about the consequences of enforcing the rule as written:

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.

It also stressed that the problem is common to many semiautomatic guns, not just AR-15s and their variants.

This isn’t the first time a court has noticed this problem, surprisingly enough. In 2016’s U.S. v. Jimenez, a court found similarly when faced with wording like this in a related part of the regulatory code. It further noted that the ATF itself was confused about how to handle split receivers when it discussed them internally in the 1970s.

This might be a loophole the executive branch can plug fairly easily, since the problem lies mainly in the regulation and not the statute passed by Congress — though prosecutors could lose cases against illegal gun sellers in the meantime. It’s also possible that other courts will let the agency get away with pretending that the rule means something other than what it says. (See, for instance, ATF’s decision to ban “bump stocks” by administrative fiat despite the fact the statute at issue clearly does not cover them.)

But you have to ask: If Congress and the ATF can’t write rules clearly ensuring that our basic gun laws apply to AR-15s, how well could Beto’s confiscation drive possibly go?

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