Former ATF Firearm Technology Instructor: 60% of Guns Don’t Meet the Legal Definition of a Firearm

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.”

comments

  1. avatar Taurus 4 Life says:

    I can’t wait to read James Campbell’s ‘learned’ take on this issue!

    1. avatar Peegeetwo says:

      Stay on topic.

      1. avatar Thixotropic says:

        Eat doo doo.

        1. avatar Jeff the Griz says:

          Troll fight!!!!

        2. avatar tsbhoa.p.jr says:

          do they bite, scratch and pull hair?

        3. avatar Void says:

          Damnit Jeff I read that in Cartman’s voice.

      2. avatar I Haz A Question says:

        Well, looks like ‘ol PeeGeeToo (her current name, as she’s disguised herself under several variations to avoid the TTAG filters) is back from vacation. Let the misinformation commence…

    2. avatar James Campbell says:

      “do they bite, scratch and pull hair?”
      No.
      They just break out the grape jelly or Maple syrup and ASSume the circular salad toss formation.
      Which flavor is it today girls?
      Be sure to spread plastic this time, don’t want mom sore at you because of the carpet stains in the basement.

      1. avatar Taurus 4 Life says:

        You are such a choad.

      2. avatar I Haz A Question says:

        Wow. I had to read JC’s comment three times to finally understand what he was talking about. I don’t hang in those circles, so I wouldn’t know.

        JC sure seems to be an expert on the topic, tho. Maybe that’s what a choad is?

        1. avatar Taurus 4 Life says:

          Yeah she’s a complete choad.

  2. avatar Shire-man says:

    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.

    1. avatar Jeff the Griz says:

      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).

    2. avatar guy says:

      Very well said!

      1. avatar Huntmaster says:

        Thank you.

  3. avatar Sam Hill says:

    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.

    1. avatar SAFEupstateFML says:

      That may be the best reduction to core issue on this topic that I have seen.

    2. avatar I Haz A Question says:

      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. avatar kahlil says:

    “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.

    1. avatar No one of consequence says:

      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. avatar kahlil says:

        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.

        1. avatar tsbhoa.p.jr says:

          don’t matter. what happens is they redefine and you lose.

        2. avatar neiowa says:

          Subassembly

        3. avatar Paul says:

          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.

      2. avatar Mark N. says:

        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.

    2. avatar LarryinTX says:

      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.

      1. avatar Hannibal says:

        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. avatar No one of consequence says:

    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. avatar Randy Jones says:

    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.

    1. avatar neiowa says:

      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.

    2. avatar Mark N. says:

      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. avatar Fred says:

    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!

    1. avatar tsbhoa.p.jr says:

      cz sharptail.

    2. avatar Dyspeptic Gunsmith says:

      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.

    3. avatar neiowa says:

      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.

    4. avatar Hannibal and the Elephants says:

      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.

      1. avatar Hannibal and the Elephants says:

        …your comment …

  8. avatar Hankus says:

    The ATF response will be to reclassify ALL gun parts as registered devices.

    1. avatar Bruce says:

      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. avatar uncommon_sense says:

    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.

    1. avatar tsbhoa.p.jr says:

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

    2. avatar Anymouse says:

      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.

      1. avatar uncommon_sense says:

        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.

        1. avatar Sam I Am says:

          “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. avatar Will Drider says:

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

    1. avatar LarryinTX says:

      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.

      1. avatar uncommon_sense says:

        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. avatar American Patriot says:

    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.

    1. avatar neiowa says:

      In a world with carma the chicom flu will be attracted to the brainless (progs). Call it Darwinism.

  13. avatar Miner49er says:

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

    1. avatar Marcus (Aurelius) Payne says:

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

  14. avatar Marcus (Aurelius) Payne says:

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

  15. avatar GS650G says:

    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. avatar Sam I Am says:

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

    And…..

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

    1. avatar Bruce says:

      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.

      1. avatar Sam I Am says:

        “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. avatar Mark N. says:

    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?

    1. avatar Bruce says:

      Most modern semiautomatic handguns.

  18. avatar Dave says:

    Time to strip the ATF of its rule-by-fiat.

    1. avatar Sam I Am says:

      “Time to strip the ATF of its rule-by-fiat.”

      It’s not an BATFAEE-only matter:
      Chevron Doctrine:
      https://www.law.cornell.edu/supremecourt/text/467/837

  19. avatar strych9 says:

    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. avatar Alan says:

    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. avatar Truckman says:

    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

    1. avatar Sam I Am says:

      “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. avatar Hannibal and the Elephants says:

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

    1. avatar Hannibal and the Elephants says:

      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. avatar Prndll says:

    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. avatar Paul says:

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

    1. avatar Sam I Am says:

      “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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