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. As CNN reports, 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.

https://www.thetruthaboutguns....-in-serious-trouble/

Replace "Kahn" with ATF...

Very interesting. Another case of a missing comma?

quote:

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.”

If I were a judge looking at the language, I would interpret the definition of the receiver as requiring a hammer and a bolt or breechblock and firing mechanism. I would consider the “threaded” part to be nonbinding because of the “usually” caveat. If, however, the definition had read “housing for the hammer, bolt, or breechblock …,” then I would have ruled that the “or” required only one of the three, and as AR lowers do house the hammer along with the firing mechanism (enough of it anyway), that would have been sufficient.

Also consider the fact that most handgun frames do not house a bolt or breechblock, nor are they threaded to receive the barrel. How do they therefore differ from AR lower receivers?

quote:

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.”

My personal efforts to research 'the Law', has led me to the conclusion that a lot of ATF enforcement of the NFA, the Gun Control Act and other Firearms related regulations is just this....

The ATF’s interpretation of federal law is quite often the result of 'secret, in-house decision-making' re: policy that masquerades as law!

If that's actually the law as written, then there's a bigger problem than AR lowers. I read it as three components are needed and there are two paths to get there:

1. That part of a firearm which provides housing for the hammer, bolt, and firing mechanism...

or

2. That part of a firearm which provides housing for the hammer, breechblock, and firing mechanism...

The problem here is what about firearms that don't have a hammer?

quote:

Originally posted by sigfreund:
Very interesting. Another case of a missing comma?

quote:

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.”

If I were a judge looking at the language, I would interpret the definition of the receiver as requiring a hammer and a bolt or breechblock and firing mechanism. I would consider the “threaded” part to be nonbinding because of the “usually” caveat. If, however, the definition had read “housing for the hammer, bolt, or breechblock …,” then I would have ruled that the “or” required only one of the three, and as AR lowers do house the hammer along with the firing mechanism (enough of it anyway), that would have been sufficient.

Also consider the fact that most handgun frames do not house a bolt or breechblock, nor are they threaded to receive the barrel. How do they therefore differ from AR lower receivers?

No missing comma. Likely a [very] poorly written law.

quote:

Originally posted by sigfreund:
Very interesting. Another case of a missing comma?

quote:

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.”

If I were a judge looking at the language, I would interpret the definition of the receiver as requiring a hammer and a bolt or breechblock and firing mechanism. I would consider the “threaded” part to be nonbinding because of the “usually” caveat. If, however, the definition had read “housing for the hammer, bolt, or breechblock …,” then I would have ruled that the “or” required only one of the three, and as AR lowers do house the hammer along with the firing mechanism (enough of it anyway), that would have been sufficient.

Also consider the fact that most handgun frames do not house a bolt or breechblock, nor are they threaded to receive the barrel. How do they therefore differ from AR lower receivers?

I read it as "hammer, bolt OR breechblock, and firing mechanism" - the AR15 has only the hammer and firing mech, no bolt or breechblock, nor a threaded portion for a barrel.

quote:

Originally posted by LS1 GTO:
Likely a [very] poorly written law.

Like most laws.

quote:

Originally posted by trapper189:
The problem here is what about firearms that don't have a hammer?

I am pretty certain it would be argued that something like a striker or spring-driven firing pin serves the same purpose as a hammer, and therefore they are the “hammer,” despite what they might be called in common parlance.

Everything else with upper / lower receivers (FAL / H&Ks / etc) the upper is the serialized part. Why ARs are different I never understood.

Or, after reading it again it could be needing one of three parts and a firing mechanism:

1. Hammer and firing mechanism

or

2. Bolt and firing mechanism

or

3. Breechblock and firing mechanism

In which case an AR lower would not be a firearm receiver, but an AR upper would be a firearm receiver.

quote:

Originally posted by trapper189:
Or, after reading it again it could be needing one of three parts and a firing mechanism:

My point and contention is that it would need only one of the three if there were a comma after “bolt,” but there isn’t. Without that missing comma it requires all three, not just one (in the opinion of His Honor, Judge sigfreund).

And perhaps I am the only one to remember it thus far, but there was another Federal case within the past couple of years or so that revolved around a comma. As I recall, the ruling went against the government because it was lacking in the statute.

So the lack of an Oxford comma may change the history of firearms regulation? Is this the ultimate Grammar Nazi coup?

By this definition AR lowers aren't firearms, neither are most semi-auto pistol lovers, and for that mater most semi-auto serialized uppers aren't firearms. Good luck getting legislation to redefine all of this through....

It always stuck me as odd that the “firearm” part of an AR15 was the lower receiver, but the “firearm” part of a Sig 556 and the like was the upper receiver. No legitimate mechanical difference, just whatever part the manufacturer decided to put a serial number on.

quote:

Originally posted by Lefty Sig:
So the lack of an Oxford comma may change the history of firearms regulation? Is this the ultimate Grammar Nazi coup?

By this definition AR lowers aren't firearms, neither are most semi-auto pistol lovers, and for that mater most semi-auto serialized uppers aren't firearms. Good luck getting legislation to redefine all of this through....

In a world where statutes are law, what are lawyers if not professional grammar nazis?

Whatever we might think of the wording of this law, or its interpretation! I'd LOVE to see the run up the judicial food chain. The worst case scenario would be that the law would deemed enforceable as it has been to date. The best case scenario is that AR lowers would be deemed regular gun parts not needing serialization or tracking.

quote:

Originally posted by sigfreund:

My point and contention is that it would need only one of the three if there were a comma after “bolt,” but there isn’t. Without that missing comma it requires all three, not just one (in the opinion of His Honor, Judge sigfreund).

And perhaps I am the only one to remember it thus far, but there was another Federal case within the past couple of years or so that revolved around a comma. As I recall, the ruling went against the government because it was lacking in the statute.

I don't remember that case.

Rereading it a third time, I concur with your conclusion. The commas before each "and" after the "or" support your conclusion. I do find it interesting that the law specifies "bolt or breech block", two methods used for a particular function, and yet only specifies "hammer" as striker fired rifles were common place when the law was written.

Well, what does that mean- "it's in serious trouble"?

Some component of all firearms must be designated as the receiver, or the actual firearm, or however you'd like to put it. So, what happens if there is some obscure mistake in the wording of the regulation?

Surely, no one here thinks that the BATFE or any other Federal agency or department is going to say that AR lowers are invalid as being the actual firearm, and that we're all going to be able to have AR lowers shipped to our homes, just as we can now with all other components of these rifles? And we don't think that the BATFE is suddenly going to designate AR15 uppers as the actual firearm, do we?

There are millions of these rifles out there and countless more components- upper receivers, barrels, etc, not mated to existing AR15 rifles. If the Feds did attempt to change the regulations, either of their own accord or via a Federal suit brought by some citizen or group, it would be a Gordian Knot of epic proportions, and in the end, the only winner will be the Federal government.

To me, this seems like much ado about nothing. What am I missing here?

quote:

Originally posted by Lefty Sig:
So the lack of an Oxford comma may change the history of firearms regulation? Is this the ultimate Grammar Nazi coup?

By this definition AR lowers aren't firearms, neither are most semi-auto pistol lovers, and for that mater most semi-auto serialized uppers aren't firearms. Good luck getting legislation to redefine all of this through....

Despite the fact that only Godless heathens don't use the Oxford comma (the comma before the conjunction at the end of a list of items), for EXACTLY the reason of the kind of ambiguity in this law, it is considered proper English both ways, whether you add the comma or not.

There isn't a snowball's chance in hell that a decision will be made and upheld that results in hundreds of different models of firearms suddenly not being "firearms" anymore if you field strip them.

I must agree that this issue isn’t going to produce any benefits for gun owners. I believe that the worst case scenario would be an inevitable change to the wording of the statute, and that then coupled with at least an attempt to add some new onerous provision at the same time. I still recall what happened in 1986 with the passage of the “Firearms Owners’ Protection Act” which also ended the registration of new automatic firearms.

quote:

Originally posted by RHINOWSO:

quote:

Originally posted by sigfreund:
Very interesting. Another case of a missing comma?

quote:

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.”

If I were a judge looking at the language, I would interpret the definition of the receiver as requiring a hammer and a bolt or breechblock and firing mechanism. I would consider the “threaded” part to be nonbinding because of the “usually” caveat. If, however, the definition had read “housing for the hammer, bolt, or breechblock …,” then I would have ruled that the “or” required only one of the three, and as AR lowers do house the hammer along with the firing mechanism (enough of it anyway), that would have been sufficient.

Also consider the fact that most handgun frames do not house a bolt or breechblock, nor are they threaded to receive the barrel. How do they therefore differ from AR lower receivers?

I read it as "hammer, bolt OR breechblock, and firing mechanism" - the AR15 has only the hammer and firing mech, no bolt or breechblock, nor a threaded portion for a barrel.

quote:

Originally posted by LS1 GTO:
Likely a [very] poorly written law.

Like most laws.

Your reading skills are poor