Tuesday, October 15, 2019

Does The Recent Roh Court Case Destroy Existing Laws on AR-15s?

Background: a few days ago, McThag posted a link to a CNN story about a case that I hadn't heard of against a guy from Southern Californina for manufacturing firearms by completing 80% lowers.  For the benefit of the few who are new and don't know the situation with 80% lowers, they are legally considered "not a gun."  Many writers call them a paperweight, but even that's too specific; they're just a hunk of metal.  BATFE rulings on the subject are that in the case of an AR-15, the lower receiver is the gun, and the act of machining one enough to complete the gun is manufacturing a firearm.  You can make some for yourself.  You can even sell ones you don't care about anymore, but if you do that a few times, they can and will charge you with manufacturing firearms without your FFL. 

Joseph Roh had a small shop and would, at first, finish 80% lowers for people who were willing to pay about $1000 for the service.  Presumably, people who'd pay $1000 for these lowers were people who couldn't pass the background checks to buy new guns from a shop.  Roh eventually automated the process so anyone could complete the the lower receiver's machining by pressing a "GO" button - after they paid $25 to join his gun club so that he could say he wasn't selling to the general public.

Roh's shop - CNN photo. The green button is on the box on the upper right, at the top of column of buttons next to the light colored area.

Seems like an open and shut case.  To the best of my knowledge, I can make a gun for myself, but if I do it for anyone else, that's manufacturing and I need a manufacturer's FFL.  That's where a big turn in the story takes place.
The judge in the case had issued a tentative order that, in the eyes of prosecutors, threatened to upend the decades-old Gun Control Act and "seriously undermine the ATF's ability to trace and regulate firearms nationwide."

A case once touted by prosecutors as a crackdown on an illicit firearms factory was suddenly seen as having the potential to pave the way to unfettered access to one of the most demonized guns in America.

Federal authorities preferred to let Roh go free rather than have the ruling become final and potentially create case law that could have a crippling effect on the enforcement of gun laws, several sources familiar with the matter told CNN.
The problem is that the BATFE's classification doesn't agree with Federal law on exactly what a receiver is, because the design of the AR splits those things between the upper and the lower receivers.
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."
The lower houses the hammer, and "firing mechanism" (the fire control group), but the bolt is located in the upper receiver.   The lower doesn't have a breechblock. 

US District Court Judge James V. Selna heard the case, after four years of wait, and deliberated on it for a year.  Last April, he issued his ruling stating that Roh was not manufacturing guns because completing the lower receiver doesn't turn it into a gun.
Selna added that the combination of the federal law and regulation governing the manufacturing of receivers is "unconstitutionally vague" as applied in the case against Roh.

"No reasonable person would understand that a part constitutes a receiver where it lacks the components specified in the regulation," Selna wrote.

Therefore, the judge determined, "Roh did not violate the law by manufacturing receivers."

The judge's tentative order also found that the ATF's in-house classification process failed to comply with federal rule-making procedures.
Cam Edwards at Bearing Arms adds that this is the second time Federal prosecutors have dropped charges against people over the definition of a receiver and the second time a Federal judge has essentially nullified the law.  In a word, the BATFE is terrified that they created a situation with no definition for which part of the AR-15 is the gun.
The first case was back in 2016, and involved a convicted felon named Alejandro Jimenez who bought a lower receiver in an ATF sting operation. After a judge ruled that the receiver wasn’t an actual firearm under federal law, the case against Jimenez was dropped.
Judge Selna did, however, find Roh guilty of selling firearms without a license, which carries a prison sentence.  The prosecutors and defense worked out a bargain; Roh would not go to prison "as long as he keeps his mouth shut" about the BATFE's receiver rules being wrong.  No, I made that part up.   
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.

Roh accepted the deal to avoid a permanent conviction — and possible prison time — for dealing firearms without a license.
So where does that leave the 80% lower world?   For that matter, where does that leave the law?  Hell if I know. 

What the rulings seem to be saying is that the AR platform with its regulated lower and unregulated upper is inconsistent with Federal law.  Since it's impossible to redesign the platform with millions of them already in peoples' hands, the solution is for congress to come up with a definition for the lower receiver that's workable.  That's going to be a giant ball of fail; congress never writes laws that require technical details because none of them are qualified.  On the other hand, if someone was to do things that the BATFE frowned on with some lower receivers, we have two cases that say they're going to quit before they get ruled against for all the marbles.  In the words of Dirty Harry, "do you feel lucky?"

80% lowers and 0% forgings posed in my shop. 


  1. It's the BATFE, they constantly contradict themselves constantly.

    We just need to get back to what the 2A states and keep it that way.

  2. I'm terrified that BATFE will scramble to make up some new regulation that will make it even worse. Or Congress. They're all stupid. It's just a matter of who will be stupid faster or worse.

  3. Come to think about it, aren't most pistols much like the AR, with the trigger group in the lower section and the hammer or striker in the upper section? Thus the swappable uppers with different length barrels and such?

    This is quite a mess that just opened up. Hmmm...

  4. I've got some older guns where the serial number is on the barrel.

    The problem is Congress trying to reduce a working firearm to a single part when, in fact, it's not a firearm until it's a functioning and complete machine.

    Why yes, if you have to have a functioning firearm before it's a gun there will be people who will use that to avoid being "in possession" when it's illegal for them to be in possession.

    A real worry for the ATF from Roh might very will be their "once a machine gun; always a machine gun" ruling.

    An M14 with the connector/selector lug machined off is no different from an M1A; but their ruling prevents someone from making an, otherwise, legal rifle from a surplus rifle. This also prevents the CMP from getting them.

    Hell, we can't even get them to give us everything BUT the lower and fire control guts to let CMP make AR-15's with surplus parts.

  5. The ATF has several inconsistent rulings in this regard, including rulings on specific firearms where it defines the upper as a firearm as well as the lower receiver. Add a suppressor and you have three "firearms" in one gun.