AR Lowers Might Not Be Regulated Firearms: The Potential Implications of CNN's Gun Control Story
CNN dropped a bomb that AR-15 regulations to allow for lower receivers to require background checks for purchases may be deeply flawed. Their article title is self-explanatory of the predicament: “He sold illegal AR-15s. Feds agreed to let him go free to avoid hurting gun control efforts.” If you have not read the CNN article, do so before continuing.
In short, because the government determined the lower receiver to be the firearm, but the actual regulation does not seem to apply, the government was unwilling to test their theory in court and potentially get unfavorable (to prosecutors) case law. So to enable prosecutions against stupid people with bad lawyers and to keep plea bargains rolling in, the government didn’t press its case.
I speculate that this article came forward when it did, shortly after California passed into a law banning purchase of “firearm precursor parts” like barrels and 80% frames without background checks (effective in 2024) to draw attention to the issue. I doubt that CNN would break a story like this without being part of a plot to move public and legislative opinion to creating new legislation. This is huge potential boon to gun owners and damning to gun control and the ATF, so it would be in the interest of leftist, anti-gun media to sit on the story.
The regulation (not a statute) in question is: 27 CFR § 479.11(a):
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.
The argument in the case that the definition is not met by the AR-15 is that the lower receiver houses the hammer, while the upper houses the bolt and is threaded to accept the barrel. The jury is out on what exactly the firing mechanism is. Because both halves are required to complete the firearm, the ATF determined a long time ago that the lower receiver should be regulated as the firearm. Something had to be deemed “the receiver” in the (then) unconventional Stoner-Sullivan space rifle to regulate it.
This doesn’t just apply to the AR-15 only. In many H&K firearms and the FAL series, portions of what we’d term the upper receiver are deemed the firearm.
Congress has ignored the issue and ATF has danced around it because it would hinder government prosecutions if the status quo changed. Many convictions could be reversed if this line was pursued. This is not in the government’s or ATF’s interest. Of course, Congress or courts could simply affirm the status quo. A devil’s advocate examination of the regulation could be used to support the status quo definition.
“That part of the firearm” must house either the hammer, bolt, or firing mechanism. It is also “usually” threaded at its forward portion to receive the barrel. Only one item being required to be housed in the receiver and “usually” means “commonly or ordinarily”; not always. So because the lower receiver houses the hammer, it is a receiver because the regulation, using the operative word “or” does not require the hammer, bolt, and breechblock to be in the same “part of the firearm” which does not always have to be threaded for the barrel.
This sounds more like the upper receiver than the lower receiver, although I doubt one could say that the AR-15 has a breechblock and “that part which holds the bolt” is actually the bolt carrier, not the upper receiver (but that’s a little semantic for simpletons like judges and legislators). “Firing mechanism” is even more confusing because what does this mean: the firing pin, the trigger group, or what? The recent case of Safety Harbor’s .50 cal upper receiver conversion being classed as firearm seems to make more sense in this light.
The AR-15 receivers has to be mated together to unambiguously meet the regulatory definition, which is what helped people avoid charges by separating the gun or the process. These regulations date from a time when firearms were generally understood in the context of bolt-action rifles and shotguns where the receiver did all this.
The way forward is fraught with potential unintended consequences. A positive such consequence is that anyone charged with a violation regarding a lower receiver (perhaps a federal charge for transferring it across state lines without an FFL involved). Of course, this is rolling the dice that the prosecutors would be too scared of precedence to pursue the case.
Best case scenario is legislation or case law clarifies that the lower receiver is the firearm and everything stays the same. However, there is the great danger that any action going forward other than this results in serious blowback to the gun community.
I doubt we’ll get rid of background checks any time soon. Having to go to a physical location to obtain firearms merely so leftists can feel good that I’m not a known “bad guy” is very inconvenient. It will be more so if I have to do that for barrels and uppers. A 21st century solution would be an online Form 4473 that the buyer fills out, the computer instantly interfaces with NICS, and the package cannot be delivered except on signature of the actual buyer, confirmed with ID.
This solution would be no more problematic that today’s current scene. All the Brady checks do is scare felons from trying to buy from gun stores, which they can do, with varying levels of success and little chance of successful prosecution if they fail a background check. Guns are still stolen from homes, from stores, are bought out of some dude’s trunk on the black market, and straw purchases by friends, relatives, and girlfriends all happen with regularity. In fact, all banning private sales would do to reduce crime is perhaps allow the seller of those black market guns to be prosecuted at the expense of innocent gun transfers.
Ultimately, as ugly as it is that Roh was perhaps unwittingly help bad guys get guns, all of gun control is a failure at preventing crime. The retroactive punishment being caught is only a deterrent and a poor one at that. All laws can do is make obtaining a gun a little harder for criminals which exponentially negatively impacts the law abiding. We have to understand that criminals will be armed and will commit crimes regardless of the law. For many, that’s a difficult thing to believe so they rely on the magical thinking of gun control.
The action that the average gun owner needs to take is clear; get your guns now, especially ones you want off-the-books. Whether all semi-automatics are banned, regulated to death, or if legislation requires upper receivers to go through an FFL remains to be seen. It is clear that new restrictions are coming in the future and in a form that will make these easy days of cheap receivers shipped from Palmetto State Armory to your dealer or door will disappear. So get those receivers now, complete and 80%.
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Clayton E. Cramer
Gun Free Zone
The War on Guns
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