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

See our earlier posts on this topic here and here. According to a former ATF agent (which echoes a number of comments under those previous posts of ours) the problem is much bigger than just AR-15 lowers.

This key part (that’s legally a firearm), according to the Gun Control Act, was referred to as “the frame or receiver,” which is, generally speaking, the body of a firearm in the area surrounding the trigger.

An accompanying federal regulation provided a precise, highly technical definition:

“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 problem — and this is where (Dan) O’Kelly comes in — is that he says roughly 60% of the guns in America do not have a single part that falls under that definition. The AR-15, for example, has a split receiver — one upper and one lower. Neither meets the requirement on its own.

“For 50 years, ATF has been making this square peg fit in the round hole,” O’Kelly told CNN, “when, in fact, it doesn’t.”

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70 COMMENTS

  2. If it can be a firearm: metal block, pipe, nail, shoelace, etc… then it may as well be defined as a firearm for the bureaucracy. This is the inherit problem in legislation where no one or no property is harmed or injured in that the object or act to be legislated cannot be absolutely defined so the legislation has to be broad or abstract to the point it has no reach or too far reach. For most of us having no reach is fine and for most of them having too far reach is fine but we all suffer under legislation like this.

    I always knew people were stupid but it wasn’t until I got into firearms and started trying to make sense out of all of these insane gun laws that I realized just how stupid, how many are that stupid and how many are that stupid in positions of great power and authority over others. I put that moment right up there with the realization that I would someday die that hit me in 1st grade on the list of life-changing, stomach-turning epiphanies.

    • Navigating legalities surrounding firearms can be a nightmare. Even long time gun owners are confused, yeah you can brace that AR pistol and add an angled foregrip, but you can’t add a vertical grip because that magically turns the gun into a rifle.
      I purchased a Mossberg Shockwave and the FFL that usually does my transfers had a panic attack(even though I checked with him before having it shipped there).

  3. Here’s how this works, if it is in your or my hands, it’s a firearm, if it’s in the government’s hands it’s a stick.

    • My version I’ve always said in conversations is:

      If it’s in a LEO/LEA’s hands, the agency calls it a personal defense weapon.
      If it’s in my hands, it suddenly transforms into an assault weapon.

  4. “The problem — and this is where (Dan) O’Kelly comes in — is that he says roughly 60% of the guns in America do not have a single part that falls under that definition. The AR-15, for example, has a split receiver — one upper and one lower. Neither meets the requirement on its own.”

    If this is the case then what stops the grabbers from declaring the AR-15 a destructive device/non firearm that can be banned? If it isn’t a “firearm” then there is nothing stopping .gov from banning it, right? Just a thought.

    • One, stop giving them ideas.

      Two, no part of an AR is a destructive device according to the NFA (as I understand things, Ianal). It’s not an explosive device, and it’s not a firearm with a bore greater than 1/2″. Heck, no part of an AR is even a firearm, if this holds up.

      • 1) I am not giving them ideas, thinking aloud
        2) not separate “modules/parts” but combined. Do the combined modules (I dislike the word parts here for some reason) of an AR-15 make it a “gun” or is it something else?

        Again, thinking aloud and looking at ways to address the risks/possibilities.

        • When thinking aloud, you should be on an encrypted connection so the other side can’t snoop. I hope all your software, including your browser, are up-to-date. And, if you’ve had Windows 10 crammed up your arse, please upgrade to any Unix-like operating system. Avoid systemd when doing so.

      • it is a firearm when it is completely assembled.
        But it can be a pretty big issue. IN CA when the newest AW law went into effect, a lot of peoplke separated the upper from the lower, because then it was not an “AW” as defined under CA law. And technically, if they comde to get your firearms, the upper is not a firearm at all, as no part of it is serialized. (Not that this distinction is going to stop them from taking everything.) And I can tell you that THE MAJORITY of AR/AK firearms in this state are completely oblivious to the changes in the law, because they do not follow gun blogs and sites.

    • Not right. The right is to keep and bear “arms”, not specifically “firearms”. If an AR is not a firearm, it is still an arm, and thus protected.

      • The courts have not seen fit to extend those laws to blades which are made illegal in many ways in many states. They are also clearly arms.

        Frankly this whole AR ‘firearm’ issue worries me. Whenever a change on definitions is made, it’s never good, and we currently have a pretty useful way of defining ARs… particularly with 80% lowers.

  5. This is what happens when you over-regulate.

    The more details you lay out, the easier it can be for someone to find a work-around. (Or for technological advance to make it moot.) Just in the firearms world, look at pistol braces, Shockwaves and the like, etc. Other examples abound in the realm of banking and finance, where are serious monetary incentives to look for ways to get around the intent of the law while not actually violating the law as-written.

  6. This has come out in the news a lot lately but this isn’t “new” by any means. Most gun owners have known this for years, but the Feds have selectively enforced a nebulas law definition and the courts have backed them up.

    This is a lot like the Modern Sporting Rifle bans. They do not meet the definition the Federal Government used for a military rifle, aka. Assault Rifle, and the Supreme Court did rule that they were ‘common’ firearms, but still States write laws, which are unconstitutional, to ban them. Even the term Modern Sporting Rifle is a misnomer considering the design of the ArmaLight 15 dates back over half a century.

    • If the Feds judge shop (as per SOP) they will get a demtard appointed prog that supports whatever leftist nonsense desired. As the ranks of judges have not been purged (not a PC/polite topic) the bench is overrun with 30+ years of such judges (Bush, Clinton, Bush, Bumer) it is not hard to find one.

    • It is a lot newer than a bolt action Mauser. (Did you see that the NRA has selected a plastic stocked low cost Mauser as its “rifle of the year”? What is old is now new again!)

  7. I am simultaneously amused and disappointed; amused that the BATFE couldn’t figure this out, and disappointed that it took the firearms community 50 years to do so. But then, it took almost 80 years for us to figure out that we could make a 14″ barreled, pistol grip, 12 gauge “Firearm” that isn’t a short barreled shotgun. BTW, I’m still waiting to see a side by side version!

    But I’m also frightened at what will come in the wake of the current definitions. Brace yourselves, I predict a bumpy ride!

    • Oh, more than a couple of gunsmiths noted this issue with ATF examiners over the years when applying for letters of exemption on various custom builds.

      But the ATF didn’t want to deal with the issue, so they’d overlook it. The gunsmiths got their letters, and they overlooked it.

      It is only an issue now because the courts are ruling on the language in criminal cases, and now the ATF has no choice but to notice the issue.

    • Capitalism at work. 50yr ago what was a Shockwave good for or desired? Now customer demand combined with mfg that need something new and away you go.

    • Reply got moved to the wrong place by TTAG.
      “Brace yourselves, I predict a bumpy ride!”
      I would be laughing at your if the facts weren’t so dismal.

    • Except that they can’t. If they aren’t going through the legislative process to amend the NFA, they are limited to changing the formal regulations, which requires going through the Administrative Procedures Act (APA) Notice and Comment process. And they surely don’t want to do that, because they would have to show that they had reviewed millions of comments, likely a significant majority negative. It can be done – HHS managed to get its original ObamaCare regulations through the process, but it was a monumental task. One big difference is the then President was solidly behind the new regulations. They were essential to the implementation of his namesake legislation. This time around is likely to have the First Son going to his father, with his latest custom AR-15, with its Lock Her Up magazine (showing Clinton behind bars made apparently from the strengthening honeycomb), and asking him “Do you know what your ATF is doing this time?”

      Anything else beyond Congressional and Presidential enacted statutory changes and APA adopted regulations is mere agency guidelines, that can bind agency personnel, but not the general public.

  9. This key part (that’s legally a firearm), according to the Gun Control Act, was referred to as “the frame or receiver,” which is, generally speaking, the body of a firearm in the area surrounding the trigger.

    An accompanying federal regulation provided a precise, highly technical definition:

    “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.”

    I am pretty sure I stated this a couple weeks ago when this website touched upon this topic back then:

    According to that legal definition of a “firearm”, a “firearm” MUST have a hammer. That means the Gun Control Act’s legal definition of a “firearm” does NOT include any firearm which does NOT have a hammer. In other words all striker-fired handguns and striker-fired rifles are not “firearms” according to the Gun Control Act.

    Reminder, when the legal definition of a “widget” has a list of requisite items, if the list ends with the conjunction “and”, an object under consideration must have EVERY item in the list to meet the definition of a “widget”. If the object under consideration is missing just one of the items in the list, that object fails to meet the legal definition and is not a “widget” as far as the law is concerned.

    Disclaimer: I am not an attorney and the above is not legal advice.

    • much simpler to consider the striker as a hammer. they are not the same, but provide the same inertia.

    • Obviously not an attorney. It says “hammer, bolt, or breechblock.” “Or” means it doesn’t need to contain all 3. Just one meets the requirement in the definition, so a hammer isn’t a must. An AR lower meets the requirement by containing the hammer, which does bring up an interesting point. If someone were to come up with a system in a AR lower that uses a striker, then the lower won’t have any of the 3. If that exists, then any bare lower could potentially be built as a hammerless and not be a frame or receiver, and thus not a firearm. The fix at that point is to redefine the reg to “could house.” Speaking of a fixes in TFA, there’s no reason why it has to be a legislative change since the flaw is in a regulation. Lynch could have ordered them to rewrite the reg, with corresponding comment period.

      • Anymouse,

        Your assertion is incorrect.

        Let’s look at the relevant part of the sentence again:

        “… hammer, bolt or breechblock, and firing mechanism …”

        The word “or” in the middle of the list clarifies the second element of the list (between the two commas) and ONLY clarifies the second element of the list. The word “or” does not clarify the entire list. The very last conjunction “and” clarifies the entire list.

        Thus, an item under consideration will only meet the definition if it satisfies one of these two possible configurations:
        (1) the item has a hammer, bolt, and firing mechanism
        — or —
        (2) the item has a hammer, breechblock, and firing mechanism

        An item which only has a hammer (and nothing else) does not meet the definition. Similarly, an item which only has a bolt does not meet the definition. And an item which only has a firing mechanism does not meet the definition.

        And if you think about it, that makes sense. A firearm (in common parlance) requires multiple features to be a firearm. Something which only has a barrel is not a firearm. Similarly, something which has a barrel and receiver and yet has no firing mechanism is not a firearm. A firearm (again, in common parlance) must have a barrel, receiver or chamber of some sort, and a firing mechanism — it must have ALL elements. That is what the legal definition was trying to capture (however poorly) and therefore common sense tells us that the list must be all inclusive.

        • “A firearm (again, in common parlance) must have a barrel, receiver or chamber of some sort, and a firing mechanism — it must have ALL elements. ”

          As a former federal employee who wrote procedures implementing regulations implementing federal law, and who interpreted same based on latest legal guidance, “firing mechanism” is any combination of parts that cause an item perform its design function of expelling, launching, boosting,. Thus, a cell phone can be considered part of the firing mechanism of a remote controlled device.

          So, at my Machiavellian best, I would advise management/authority to rule that any item that is part of an assembled firing mechanism (however constructed) falls under the definition of firearm under NFA. Also, whenever a firing mechanism is attached to any other item, the combination is a firearm. Thus an array of items may be classified as firearms; even to the point of the absurd.

          (working in “the swamp” can be entertaining)

  10. Sig 556, 556R rifles and P556 pistols don’t have serial numbers on the lower reciever, it’s on the upper!

    • Really? How the hell do they do that? Can a manufacturer just make up the rules as they go along? I have to tell you, that really shocks me! Although after reading this article, I suppose either upper or lower could be justified, who would guess the choice would be up to the manufacturer? But hey, we can have some fun with that. So, if I order a 10″ upper from Sig, then mount it on my SBR lower, which then would have 2 S/Ns, how many years can I spend in jail even though it is a registered SBR under one S/N, since it is a pistol under the other? This really sounds ridiculously stupid.

      • Larry in TX,

        This really sounds ridiculously stupid.

        That should not be any surprise. After all, we ARE talking about the work product of our benevolent federal government.

  11. Laws aren’t enforced by the exact words they were written, if so any ordinary individual that can read & comprehend the words would understand the laws. The words are re-interpreted to mean what the lawyers & judges think they mean or what they want them to mean!
    The very reason we need Trump re-elected to put more American judges on the bench & blow off the dust of Ginsburg & get her replaced.

  12. This is bad. All this will do is open more doors for more regulations. Just use your imagination, I’m not going to point them on here because I ain’t gonna to be the one to give them sorry basterd any ideas. It’s coming people, best to get your ducks in a row.

  13. Y’all need to research the concept of “legislative intent” and what factors a judge takes into consideration when charging the jury.

    • What about the limits to the legal authority vested into the judge in the first place?

  14. So: “former ATF agent admits he was happy to illegally enforce an invalid law for several decades?”

  15. Not seeing how these regulations save lives. People who decided to hurt others are neither deterred nor prevented by firearms registration.
    So they have a number, a name, and a model owned by someone on a list. Is that supposed to prevent malicious use?
    More like future confiscation plans.

  16. “Tradition, history, precedent”. The interpretations stand.

    And…..

    “Chevron rule”; agencies are qualified to interpret their own regulations, without court review.

    • Not that simple. In particular, Chevron Deference can only interpret between the lines of the statutes and regulations. They can’t go beyond that. Moreover, several of the Republican Justices have voiced their opposition to Chevron Deference. My guess is that it is only CJ Roberts who is standing in the way of cutting it back significantly. Flip one more seat Republican (RBG’s seat?), and I think we are going to see it happen, and the one place the left won’t want this to happen is anything involving the 2nd Amdt, because then there would be no moderating the opinion cutting back on Chevron.

      • “In particular, Chevron Deference can only interpret between the lines of the statutes and regulations.”

        Reading between the lines: “hammer” and “striker” are synonymous.

        Regulations, exactly.: Existing regulations intend to do what the agency wants them to do. (interpretation)

        Bump stocks suddenly became machine guns through interpretation. There is nothing that can’t be accomplished when there is political urgency.

  17. This all started when the ATF was forced to dismiss charges against a machine shop owner who wa running “build parties” in SoCal (as mentioned in the article)> Build parties for both ARs and AKs were quite popular until there were two busts, one in SoCal and one in NorCal. No one dared do it after that. Sadly, even with this development, build parties are a thing of the past under CA law, which requires that a lower be serialized before even starting a build–and you have to pass a background check to get the serial number. In other words, just because the Federal definition does not apply to ARs doesn’t mean a different state law definition does not.

    One question, though. This guy says that 60% do not fall under the law, but I have to doubt if 60% of the firearms out there are ARs and AKs. What are the other ones? The Sigs with the chassis that you can remove and put in a different polymer frame? What else?

  19. This would seem to be an instructive case in the application of “primary and secondary rules” but I suspect that virtually no one on either side is emotionally detached enough to make that actually work.

  20. Respecting content of the above article might one assume the following:

    1. The ATF is full of it.
    2. The Congress is full of it.
    3. Both could properly be so described.

  21. so what I get out of this is the only gun I don,t have to worry about for sure is my old 45 cal. Flintlockor am I safe with the old pump , lever, and bolt action rifles

    • “so what I get out of this is the only gun I don,t have to worry about for sure is my old 45 cal. Flintlockor am I safe with the old pump , lever, and bolt action rifles”

      The words mean whatever the BATFAEE says they mean.

  22. “Brace yourselves, I predict a bumpy ride!”
    I would be laughing at your if the facts weren’t so dismal.

    • TTAG posted my comment in the wrong place and lost the word “comment” along the way. At least it did not disappear as others have experienced.

  23. For too many people, these things are assault rifles. For them, worrying about ‘definitions’ becomes a waste of time.

    I think clarity is important. But I’m not the one writing laws.

  24. Wouldn’t it be easier and more effective to just outlaw assault and murder, and not get so hung up on the tool?

    • “Wouldn’t it be easier and more effective to just outlaw assault and murder, and not get so hung up on the tool?”

      NO !

      Assault and murder happen to other people, usually in bad places. A mass shooting by a gun crazed person might happen to me in the nice places I go. Or, nice places my children go. Not bloody likely to get strangled or poisoned in a Walmart. Just about no chance I will get run over by a dump truck in the grocery store. The odds are slim to none that I will be hacked to death by a sword at Olive Garden. Never heard of anyone being beaten to death with hands, feet, hammers, whatever in a movie theater. Guns change the situation, entirely.

      (You gotta understand how the opposition thinks)

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