Judge Rules AR-15 Lower Receiver Is Not a Firearm

Tucker301

Groundskeeper
Banned !
Feb 13, 2015
9,496
23,198
Southern VA


The ATF’s Definition of an AR-15 Lower as a ‘Firearm’ Is In Serious Trouble
BY DAN ZIMMERMAN |
OCT 12, 2019 |
107 COMMENTS


Joseph Roh ATF AR-15 rifle

Courtesy ATF and CNN


First, credit where it’s due. CNN’s Scott Glover has managed to turn out an excellent article about a fairly arcane aspect of guns and firearms law while getting the details right. That’s a notable feat for legacy media these days. Read the whole thing here.
With that out of the way, the criminal prosecution — aborted though it was — that Glover has written about is worthy of note and could make the ATF’s job of regulating AR-15 sales going forward extremely difficult. CNN’s article is titled, He sold illegal AR-15s. Feds agreed to let him go free to avoid hurting gun control efforts.
Here are the particulars. A Southern California man named Joseph Roh produced 80% AR-15 lowers and complete rifles, some of which he allegedly sold without a manufacturer’s license, and some allegedly to prohibited persons. At least a few of the guns he sold were used in crimes including an 80% lower that was used as the basis for a rifle build used in a 2013 spree shooting in Santa Monica.
The ATF had been watching Roh for years and mounted a sting operation against him in 2014. They sent undercover agents into his south LA machine shop where he was holding what were basically “build parties” where customers finished lowers and assembled completed rifles.
Roh was eventually arrested and charged with running an unlicensed firearms manufacturing operation. But none of that is the interesting part of the story.
The aspect that’s worthy of your attention — and is no doubt giving the ATF nightmares — is the argument that Roh’s attorney made in successfully defending his client.
As you probably know, the only part of an AR-15 that’s legally considered a firearm is the lower receiver. That’s the part that’s serialized and requires a background check to purchase (unless you buy an 80% lower and finish it yourself, but that’s another story).

Joseph Roh ATF AR-15 rifle
AR-15 stripped lower receiver (courtesy Palmetto State Armory)

Joseph Roh was smart enough to hire a good attorney, Gregory Nicolaysen. Nicolaysen did his homework and actually read the federal statue that lays out what constitutes — legally speaking — a firearm. When Roh’s case came to trial in 2018 . . .
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.” (emphasis added)
The lower receiver in Roh’s case does not have a bolt or breechblock and is not threaded to receive the barrel, Nicolaysen noted.
And neither does any other AR-15 lower receiver. Where most firearms have a monolithic receiver that meets the definition under federal law, an AR has a split receiver, an upper and a lower. Neither component, strictly speaking, meets the definition of a frame or receiver that is explicitly laid out in the law.
In effect, Nicolaysen argued that the ATF’s interpretation of federal law that they’ve been using to deem AR-15 lowers as legal firearms is wrong…and has been since, well, forever.
(Nicolaysen) 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.”
Roh’s case was heard in a bench trial (at his option) in which only the judge hears the evidence and renders a verdict. US District Court Judge James V. Selna deliberated for a year and then wrote a tentative order in April.
In his order, Selna agreed with Roh’s argument that the ATF’s definition of an AR-15 lower as a firearm is faulty.
That, no doubt, set off alarm bells from LA to DC. If the ruling were allowed to stand, that would set a very inconvenient precedent, one that would make AR-15 lowers like any other part of an AR platform rifle…just another gun part that could be made and sold through the mail to just about anyone. No serial number or background check needed.
The ATF couldn’t let that stand, so prosecutors reached a plea deal with Roh.
Selna did find that Roh was guilty of selling completed firearms without a license, subjecting him to a possible prison sentence.
Following Selna’s tentative order, the prosecution and defense agreed to a deal in which Roh would plead guilty to the charge against him, but would be allowed to withdraw that plea if he stayed out of trouble for a year. Prosecutors would then dismiss the case. If Roh abides by the deal, he will have no criminal conviction and serve no time behind bars.
And there would be no legal precedent.
Sources familiar with the agreement said prosecutors wanted to strike a deal in order to prevent Selna’s order from becoming permanent, drawing publicity, and creating case law that could hamper ATF enforcement efforts.
They basically let Roh walk in order to preserve the current fiction under which the ATF regulates AR-15 sales.
As for “drawing publicity,” CNN has done a good job of that with their story. And, as Glover points out, Roh’s case wasn’t the first time a similar argument had been successfully used.
Federal law enforcement officials — and members of Congress — have been on notice about a potential problem with the language in federal gun law as applied to AR-15s since at least 2016.
In July of that year, prosecutors in Northern California abandoned a case against a convicted felon named Alejandro Jimenez after a judge found that the AR-15 lower receiver he was accused of purchasing in an ATF undercover sting did not meet the definition of a receiver under the law.
The ruling and subsequent dismissal drew little notice but prompted a letter to Congress from then-US Attorney General Loretta Lynch. She advised lawmakers that the judge’s decision was not suitable for appeal and that if ATF officials believed the definition should be changed, they should pursue regulatory or administrative action.
You can read the court’s findings in the Jimenez case here. That case was dropped, too.
So the government has known that the ATF is using a faulty interpretation of federal law to regulate the sale of AR-15 lowers for decades now. And the deal they cut in the Roh prosecution doesn’t change that in the slightest.
“AR-15s, as we speak today, do not have a receiver by the definition of the existing law and that’s a huge issue,” (Nicolaysen) said. “It shows that the laws are obsolete and they’re out of sync with the realities of today’s firearms market.”
(Adam) Winkler, the UCLA law professor, offered a similar assessment.
When he was first informed of the judge’s tentative order by a CNN reporter, Winkler said, “I thought the logic was crazy.”
But after reviewing the order and several filings in the case at the request of CNN, he said Selna’s rationale appeared legally sound.
“It does seem like there is problem,” Winkler said.
It certainly does.
The only way to fix this is through new legislation. Congress alone can change federal law to define a frame or receiver in such a way that AR-15 rifles are covered. That’s why Attorney General Lynch wrote the letter she did back in 2016, suggesting a legislative fix. But Congress apparently shrugged that off.
TTAG has reached out to Gregory Nicolaysen for comment on the case, but a call and a text haven’t been returned yet.
Under a legal principle called Chevron deference, federal courts give regulatory agencies like the ATF wide latitude in interpreting and enforcing Congress’s often poorly-written laws. However, when the agency’s interpretation is so clearly at odds with the underlying language of the law, even Ninth Circuit judges can’t overlook the problem.
(Nicolaysen) 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.”
The argument that Roh’s attorney employed to get his client a very good deal will no doubt be used by defendants in future prosecutions of the same kind. It could also be used by other attorneys to try to reverse previous convictions of those found guilty on similar charges.
 

broncoaz

Gary Coleman told me to F off
Full Member
Minuteman
Feb 1, 2007
601
767
Flagstaff, AZ
Is anyone surprised that the Gov’t would make shit up as they go? Good on the attorney for bringing that defense, bad on him for saving his client rather than forcing the precedent to be set.
 
  • Like
Reactions: Blutroop

sirhrmechanic

Command Sgt. Major
Full Member
Minuteman
Interesting.

and of course they dropped the case to prevent a precedent.

mans to prevent the floodgates from opening on 100 percent lowers by mail.

the downside is that I’d they change the rules, the potential is that upper AND lower become controlled. And if they are seriald as a pair... can one swap uppers any more? Or is that changing a serial number on a receiver? Or do they ban them entirely as something like a pen gun or a cane gun... saying that they don’t meet definition of firearm?

cans of worms are always risky to crack open...

But in this case interesting and worthy.

much needs rewriting including dripping of Hughes and rewrite of NFA... to be more sensical and constitutional. Not happening in this lifetime.

And I am afraid if they did get rewritten and clarified, it would be to rape gun owners.

sirhr
 

BoilerUP

Old Salt
Full Member
Minuteman
Jan 16, 2011
3,783
1,895
38
Floyd Co, IN
Any change to what is or is not a firearm will have to come through Congress...and Congress has known that for years.

This is but one reason why Congressional elections are just as, if not more, important than Presidential elections.

It’ll be easier and more politically feasible to narrowly update the definition of receiver to fit AR-type rifles and take the 80% lower policy down further, rather than a blatant land grab capturing upper receivers that we all expect (and many on the left surely desire).
 

pmclaine

Gunny Sergeant
Full Member
Minuteman
  • Nov 6, 2011
    28,140
    49,222
    54
    MA
    So no semi auto pistol frame is a firearm than.

    This will spray shit on all in back blast.

    Ill be surprised if I am happy with any outcome from this.

    I think it will redefine firearm as "anything that can propel a projectile".

    You will be a felon for flinging snot off your index finger firearm.
     

    Sixfivesavage

    Sergeant
    Supporter
    Full Member
    Minuteman
    Supporter+
    Mar 30, 2013
    2,254
    1,571
    Maryland
    So no semi auto pistol frame is a firearm than.

    This will spray shit on all in back blast.

    Ill be surprised if I am happy with any outcome from this.

    I think it will redefine firearm as "anything that can propel a projectile".

    You will be a felon for flinging snot off your index finger firearm.
    I had the same thoughts at least for striker fired pistols. And also about the girl who's charged with a felony for making finger guns....
     

    pmclaine

    Gunny Sergeant
    Full Member
    Minuteman
  • Nov 6, 2011
    28,140
    49,222
    54
    MA
    Then they gonna serialize uppers, barrels, lowers, etc. In the next go around with laws and shit. Buy as many things as you can.


    Reminds me of Europe.

    They serialized every part on their shit due to inability to meet a manufacturing tolerance but it seems to have worked out for their non freedom ways also.

    It will raise the cost of everything.....so much for the innovation of Eli Whitney.

    Tyranny is regressive not progressive. These assholes bastardize every word they use.
     

    pmclaine

    Gunny Sergeant
    Full Member
    Minuteman
  • Nov 6, 2011
    28,140
    49,222
    54
    MA
    I had the same thoughts at least for striker fired pistols. And also about the girl who's charged with a felony for making finger guns....


    How does a 1911 differ from an AR?

    Both contain fire control/hammer.

    Neither contains a breech or threaded extension for the barrel.
     

    Sixfivesavage

    Sergeant
    Supporter
    Full Member
    Minuteman
    Supporter+
    Mar 30, 2013
    2,254
    1,571
    Maryland
    How does a 1911 differ from an AR?

    Both contain fire control/hammer.

    Neither contains a breech or threaded extension for the barrel.

    You're right. I haven't had my coffee yet and was thinking for a minute the feed ramp was in the frame and they would consider that at least part of the breech.
     

    pmclaine

    Gunny Sergeant
    Full Member
    Minuteman
  • Nov 6, 2011
    28,140
    49,222
    54
    MA
    You're right. I haven't had my coffee yet and was thinking for a minute the feed ramp was in the frame and they would consider that at least part of the breech.

    and along comes the manufacture that installs feed ramp barrels/cut frames.

    Problem is when they write these definitions/laws they are too cute by half instead of just writing in plain language.

    Also these laws only are applied to the law abiding.

    My problem is firearms certification.

    Lets say a law enforcement officer catches a party red handed pointing what appears to be a gun at someone in a criminal enterprise.

    The cop is not able to certify "I saw him pointing a gun at her".

    The gun has to be "certified".

    Money is spent training people to certify what a gun is and the contraband has to be fired to prove its a gun.

    My certification would consist of asking "Who questions if this is a gun?"

    When the defense lawyer raises his hand load it, aim it at him and ask if you should pull the trigger.

    His response will determine if it is or is not a gun.
     

    Maxduty

    Quae Moriatur
    Full Member
    Minuteman
  • Mar 8, 2014
    1,447
    3,087
    Oklahoma
    I wouldn't be worried about serialized uppers becoming required. I'd be more worried that they agree that lowers are not firearms. This removes the firearms designation and relinquishes it to an "accessory" . The .gov can not ban firearms, it's outside of their powers. They can however, regulate accessories and gives them a way broader power to control them. Now, if we could just get ATF to concede that suppressors are not under their control as they have been deemed accessories as well.
     

    TACC

    Major Hide Member
    Full Member
    Minuteman
  • Jan 10, 2019
    1,385
    1,226
    I agree with this now being opened up to be the end around play they will need.
     
    • Like
    Reactions: AllGoodThings

    kenny1773

    Major Hide Member
    Full Member
    Minuteman
    Jun 7, 2019
    1,079
    1,921
    Crap, this opens the door to allow a whole lot of bullshit to take place is wide open

    I would rather nothing related to AR lowers be re-written or re-defined at this point in time.

    Odds are they won't do anything simple like just add a blurb to make it clear that AR lowers qualify in the same way that all of us have known they qualify for decades....
     

    WNC Seabee

    Private
    Full Member
    Minuteman
    Jan 4, 2014
    268
    228
    Western NC
    Something that really bothers me is the Gov's option to drop the charges AFTER getting wind of the judge's ruling. It should be binding once you reach a certain point.

    I'd say the Gov can drop charge or the defense can enter a plea up until the point where the judge or jury heads off to deliberate. After that, all options are off the table.
     

    Crang

    What me worry?
    Full Member
    Minuteman
  • Apr 13, 2006
    1,051
    1,151
    Texas Hills
    Yup this will get is boned when they make uppers serialized to match lowers.

    Think that horse is out of the barn though and not coming back. There's a few uppers out there now.

    Exactly what I thought reading it. Going to add an extra layer of stupid if it gets pushed.
     

    deersniper

    What would Stripe do?
    Supporter
    Full Member
    Minuteman
    Supporter+
  • Feb 22, 2007
    12,877
    17,873
    Northeast
    Something that really bothers me is the Gov's option to drop the charges AFTER getting wind of the judge's ruling. It should be binding once you reach a certain point.

    I'd say the Gov can drop charge or the defense can enter a plea up until the point where the judge or jury heads off to deliberate. After that, all options are off the table.
    Amen.

    Like when they fight tooth and nail trying to drain a citizens legal funds and when it's about to go to the Supreme Court where the statists will lose, they drop the case so it isn't binding
     

    Crang

    What me worry?
    Full Member
    Minuteman
  • Apr 13, 2006
    1,051
    1,151
    Texas Hills
    Amen.

    Like when they fight tooth and nail trying to drain a citizens legal funds and when it's about to go to the Supreme Court where the statists will lose, they drop the case so it isn't binding

    For sure. Was happy to see SCOTUS just decided to hear the NYC case even after the city got rid of the ban on travelling with are firearm in order to avoid a ruling. They are more than happy to make a law, drop it when challenged, and reinstate after the danger of a legal precedent is past.
     

    LawnMM

    Harbinger of Sarcasm
    Full Member
    Minuteman
  • Jul 5, 2009
    4,809
    7,257
    Colorado
    Something that really bothers me is the Gov's option to drop the charges AFTER getting wind of the judge's ruling. It should be binding once you reach a certain point.

    I'd say the Gov can drop charge or the defense can enter a plea up until the point where the judge or jury heads off to deliberate. After that, all options are off the table.

    Better question is how'd they find out prior to the verdict at all?
     
    • Like
    Reactions: TACC and wildcats

    clcustom1911

    "Cartman 1-2, come in"
    Supporter
    Full Member
    Minuteman
    Supporter+
  • Oct 23, 2017
    7,803
    17,981
    Texas Hill Country
    Better question is how'd they find out prior to the verdict at all?
    It was a bench trial with just the judge as the jury. The defendants lawyer made a very logical argument based on the text of the actual law. So, instead if following through with the case, adjudication, and setting a precedent.... the prosecutors and judge decided to game the system to make the whole case go away to hide the truth of the matter.
     

    lonegunman762x51

    Msgt
    Full Member
    Minuteman
    Apr 8, 2011
    1,256
    4,010
    Eastern Washington
    This is why socialist/communists/democraps keep saying they want to appoint judges who will rule based on party politics and policy instead of actual laws. Using the "law" they defendant is only guilty of selling guns illegally, especially when he assembles the firearm and hands it to the customer for an exchange of cash.

    I'm glad he won most of his case, but he still sold or allowed dozens of criminals and disqualified people to purchase and assemble firearms through his actions. Much like Dillinger and Bonnie and Clyde, the actions of this one person will eventually lead to more far reaching laws that will end gun ownership for all Americans if we are not careful.

    Interstate laws created as a result of a few sensational criminals in the 1930's gave the FBI and federal goons unfettered powers to go after all sorts of people for all sorts of crimes real and imagined. Hoover targeted people for their sexuality, their beliefs and their public stature for decades using interstate laws created to address a problem is about 12 robbers driving 6 cars around the Midwest.

    The laws they pass to correct this could very well make anything firearms related firearm.............................including the "bump stock" which is not a gun. So instead of losing in court in a few years, the bump stock will officially be a gun.
     

    supercorndogs

    Ham Fisted Gorilla
    Full Member
    Minuteman
    Feb 17, 2014
    9,456
    11,074
    Colorado
    I wouldn't be worried about serialized uppers becoming required. I'd be more worried that they agree that lowers are not firearms. This removes the firearms designation and relinquishes it to an "accessory" . The .gov can not ban firearms, it's outside of their powers. They can however, regulate accessories and gives them a way broader power to control them. Now, if we could just get ATF to concede that suppressors are not under their control as they have been deemed accessories as well.

    Then they could regulate the upper already the same way you are worried about lowers.
     

    MadDuner

    Rankless Infidel
    Full Member
    Minuteman
  • Sep 6, 2019
    2,259
    5,379
    This will simply lead to requiring a form 1 to complete an 80% lower, or the complete banning of them altogether....
     
    • Like
    Reactions: TACC and wildcats

    Kamerad

    Major Hide Member
    Full Member
    Minuteman
    Oct 12, 2019
    1,249
    2,247
    W Washington
    Then they gonna serialize uppers, barrels, lowers, etc. In the next go around with laws and shit. Buy as many things as you can.
    Is this why European gun makers serialize so many parts of firearms? I figured fitting/QC is at least partially the reason.
     

    MadDuner

    Rankless Infidel
    Full Member
    Minuteman
  • Sep 6, 2019
    2,259
    5,379
    Buy now is the only possible advice to anyone who enjoys building guns of any type.
     

    Nik H

    Constantly Learning
    Supporter
    Full Member
    Minuteman
    Supporter+
  • Jan 22, 2014
    9,682
    11,388
    Small town New England
    Anytime a court produces an outcome that looks good for us and our cause.....rest assured it is not because of some obscure Government process
     
    • Like
    Reactions: TACC

    Crang

    What me worry?
    Full Member
    Minuteman
  • Apr 13, 2006
    1,051
    1,151
    Texas Hills
    Is this why European gun makers serialize so many parts of firearms? I figured fitting/QC is at least partially the reason.

    If Im not mistaken I think most of Europe considers the barrel the firearm. When they demill things they destroy the barrel and leave the rest. You can get in big trouble buying a demilled MG from Europe as they will send you the three hole receiver and not think twice about it.