The ATF’s Definition of an AR-15 was Just Struck Down by a Judge

If you were an ATF agent or prosecutor handling the case of Joseph Roh, you probably lost quite a bit of sleep over the past five years. That’s because Roh, who was charged in 2014 with illegally manufacturing and selling AR-15 rifles in California, recently almost forced a judge to upend decades of ATF precedent and policy.Mr. Roh’s attorney made a surprisingly simple argument in court that got him off the hook — and it almost demolished the ATF’s very definition of what a gun is, too. Through a series of concessions and deal-making, Roh walked free. The ATF agreed conditionally to drop all charges, thus avoiding setting a precedent that could have (and perhaps still could) theoretically de-regulate every AR-15 currently in existence. Yes, that’s correct.

Understanding how one man and his attorney nearly tore down decades of legal precedent (rather than being convicted for a crime that is patently illegal) means going back to 2012, seven years before the judge’s final ruling.Joseph Roh owned and operated a machine shop in Los Angeles, taking advantage of a little-known statute in the Gun Control Act of 1968: One section of the Act allows any private individual to build a firearm at home for personal use if they can otherwise legally own a gun. No paperwork is required by the ATF to do this. Since the parts needed to build a gun aren’t regulated by federal law, anyone can purchase them. Roh sought to exploit this.He purchased firearm receiver blanks in bulk, often called 80% lower receivers by the gun community. With some basic cutting and drilling, such blanks can be transformed into a functional receiver, an item that is legally considered a gun in the eyes of the ATF.

Roh offered his warehouse as a workshop to fabricate these blanks and assemble their guns.But the law requires that the gun-owner-to-be must perform the work, not a machine shop or gunsmith. To argue the case that his customers were building their own guns and not him, Roh programmed an automatic milling machine to cut and drill the receivers. He would instruct customers to put the receiver in the machine, press a button, and let it go to work. Roh also charged customers $25 to claim he was renting the equipment and not gunsmithing for the general public.With a customer’s receiver fabricated, Roh could then provide all the other parts required to complete the gun — barrels, triggers, bolts, and everything else needed to make the gun functional. The ATF had been monitoring Roh’s operation for years before descending on his workshop in 2014. Agents sent Roh a cease-and-desist letter (which he disregarded) before setting up a sting operation to purchase one of his home-brewed rifles. Prosecutors charged him with illegally manufacturing guns a month later.

Few facts were disputed in this case. Roh opted for a bench trial, avoiding the nuances of a jury trial and allowing for a single judge to interpret and apply the relevant laws. He was ultimately charged and convicted of selling completed firearms without a license (FFL), which he served no time for. We’ll explain why shortly. The bombshell, however, was that Roh couldn’t be charged with illegally manufacturing firearms — and it wasn’t because his customers were the ones pressing the button.Confusing? Very. The reason for your likely confusion is also the reason why the ATF agents and prosecutors handling this case likely lost quite a bit of sleep:The ATF’s definition of a firearm, which it has relied on for decades to set policy and charge individuals like Roh with certain gun crimes, is most likely invalid. This fact has been a long-held-but-open secret for some time, and the case of Joseph Roh almost put this discrepancy up against a legal test that it couldn’t defeat.Prosecutors in North Carolina also abandoned a case against a convicted felon named Alejandro Jimenez after a judge found that the AR-15 lower receiver he was accused of illegally purchasing didn’t meet the definition of a receiver (a firearm) under federal law. Save for then-Attorney General Loretta Lynch advising lawmakers of the issue, the case and its subsequent dismissal drew little attention.That’s why this same disconnect between federal law and ATF policy applies to Roh’s case.

Roh was on the ATF’s radar for two years before his indictment in 2014. In 2012, he was selling 80% lowers but wasn’t yet manufacturing. He met with ATF representatives and provided a sample of one of his unfinished receivers, asking the agency to provide a determination as to whether it constituted a firearm. He was told it did not. Roh was in the clear. And had he restricted his business operations to merely selling these gun parts, no indictment would have came. No case would have gone to court. Plenty of legitimate online retailers sell gun parts like Roh did, even in California. In fact, the state now runs an entire program to facilitate the sale of these parts while meeting their strict gun laws, and that includes frame blanks for handguns and 80% lowers for rifles.But when agents suspected that a man named John Zawahri possibly obtained an AR-15 rifle by purchasing a receiver blank from Roh to later carry out a fatal shooting spree in Santa Monica in 2013, the gears of the judicial machine began churning against his operation.

According to Santa Monica police, investigators found a letter from the Department of Justice in Zawahri’s bedroom that was drafted two years before the attack, informing him that he was not eligible to purchase a firearm. Roh’s attorney said there was no evidence of any connection between Roh and the attacks, but prosecutors were able to collect customer invoices from Roh’s warehouse that included 19 convicted felons, six domestic abusers, and one person prohibited from owning guns “due to mental health unfitness.”Around that same time, Roh graduated from just selling receiver blanks to building them in his workshop. “We here at ROHG Industries have been doing build parties for quite some time,” he wrote, referencing the name of his workshop. “The customer installs the part into our machine and pushes the start button,” Roh explained. “Is this legal?” he asked.

The ATF’s Chief of Firearms Technology Branch responded by saying that he needed to obtain a federal firearms license for manufacturing. Roh did not heed that advice. Shortly after, ATF agents conducted their sting. Visiting the workshop to build a rifle, one ATF agent asked, “I’m not going to get into trouble or anything like that?” “No,” Roh said. “We’re legal, man.”Roh then directed the undercover agent to begin the machining process on an unfinished receiver loaded in his machining equipment. “Go ahead and press the green button,” Roh told the agent. “That basically means that you did it — believe it or not.”

When Roh’s case was presented in court, his attorney, Gregory Nicolaysen, was quick to challenge the ATF on federal gun laws and their own policy-making. Nicolaysen argued what the ATF feared most: 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.The US Code of Federal Regulations defines a firearm frame or receiver 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.”But the ATF relies on the definition of a firearm provided by the Gun Control Act: “… Any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; The frame or receiver of any such weapon; Any firearm muffler or firearm silencer; Or any destructive device. Such terms do not include an antique firearm.”The ATF’s definition lacks any of the defining features present in the federal law, including a bolt and threaded portion for attaching the barrel. Nicolaysen called the ATF’s decision to classify Roh’s receivers as firearms nonetheless, the result of “secret, in-house decision-making.”

Prosecutors acknowledged there were technical differences between the regulations but argued that the ATF’s policies and wording satisfied the intent of federal law. They were quick to warn of the potential fall-out if the court adopted the defense’s position:“The necessary result of this would be that the unregulated parts could be manufactured, sold, and combined with other commercially available parts to create completed, un-serialized firearms which would not be subject to background checks, and which would be untraceable,” the prosecutors wrote. “Defendant’s interpretation would mean that nearly every semi-automatic firearm could be purchased piece by piece with no regulation or background check before a prohibited person would have a firearm.”Ultimately, prosecutors said the reading of the law “should also receive deference from this court.” Deference is the law principle that compels a federal court to defer to an agency’s interpretation of an ambiguous or unclear statute or law.Unfortunately for the prosecution, the judge disagreed.

Although the bench trial lasted less than a week, Judge James V. Selna deliberated for more than a year. This April, Selna issued a tentative order determining that the ATF had improperly classified Roh’s AR-15 lower receivers as firearms.“There is a disconnect,” the judge wrote. Although the prosecution requested deference considering vagueness, Selna judged the law defining receivers as “unconstitutionally” vague — too much so to rely on existing wording. “No reasonable person would understand that a part constitutes a receiver where it lacks the components specified in the regulation,” Selna wrote. Ultimately, the judge determined that Roh did not violate the law by manufacturing AR-15 receivers.The implications of this single ruling would have been potentially catastrophic for the ATF and headline-storming for many of the 10+ million AR-15s owned by Americans — except the prosecution acquiesced. Fearing the ruling would create such a precedent and draw publicity, the government struck a deal with Roh. He would have to plead guilty to the charges against him, but he would be allowed to withdraw his plea and have the charges dropped after staying out of trouble for one year.He accepted the deal to avoid permanent conviction and prison time.The ATF got their wish of avoiding that agency-breaking precedent.

Nicolaysen says his client no longer works with firearms but declined to comment further on the details of his activities, citing the pending agreement. But for the ATF and federal agents, it might be too late. “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.”By press time, the the ATF did not respond to requests for comment.

“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.”

According to the judge's ruling, a firearm frame needs to contain the hammer, the bolt or breechblock, and the firing mechanism in order to meet the letter of the law. An AR-15 lower only contains two of those three items, so according to the judge, cannot be a firearm as defined in the law.

By that same reasoning, a 1911 has no frame that can be considered the firearm, either, because the 1911 has no bolt or breechblock in the frame. The breechblock is part of the slide.

And striker fired pistols such as the Glock don't have hammers at all, in addition to the lack of a breechblock in the frame.

And many bolt action rifles are striker fired, so there is no hammer in the frame.

It is a stupid ruling.

By that same reasoning, a 1911 has no frame that can be considered the firearm, either, because the 1911 has no bolt or breechblock in the frame. The breechblock is part of the slide.

And striker fired pistols such as the Glock don't have hammers at all, in addition to the lack of a breechblock in the frame.

And many bolt action rifles are striker fired, so there is no hammer in the frame.

Your conclusion that it is a “stupid ruling” is wrong on its face. The ruling is absolutely correct. The stupidity is that the wrong thing is being serialized and regulated on guns of this type. The things that actually hold, lock the ammunition in place, and ignite it, are the barrel, the breech, and the firing mechanism, regardless of where they are. In the case of semiautomatic weapons, that usually means the barrel and chamber, the chamber locking mechanism, and a firing mechanism, whether a firing pin or some other means of firing the propellant, regardless of whether it is struck with a hammer, ignited with fire, or electrical spark, or other means. The human operated trigger mechanism is essentially irrelevant unless it is legally regulated between semi and full automatic firing and in fact can be located remotely from all of what makes a gun fire a projectile down range. Is those parts that should have the serial number that can be traced.

In the case of the AR-15, that would be the UPPER receiver which holds the bolt, firing mechanism, gas block and tube, barrel, etc., not the lower receiver which only holds the trigger assembly group, magazine, and recoil spring, with shoulder stock and handgrip, all of which are mere incidentals to sending a bullet down range.

“...in the Gun Control Act of 1968: One section of the Act allows any private individual to build a firearm at home for personal use if they can otherwise legally own a gun.”

Does the statute actually say “at home”? (If you know, please tell me where to look. I’ve scanned a LOT of the text and haven’t found the relevant part yet).

If the law does stipulate “at home”, how does building your rifle in some guy’s warehouse qualify for the exception. I assume the warehouse is not the customers’ “home” (but in CA, who knows...).

Yet it IS the law.

No there’s where you are wrong. It’s not the law, it’s the in house regulation, and apparently not at all ever offered for public hearing, as required by law for comment and revision, just “secretly decided” by some Bureaucrats the ATF&E. At some point in the design of the AR-15 the designers were told where to place their serial numbers by the ATF (no E) back then. . . And they were told wrong. The regulation does NOT meet the explicit definition as laid down in the statute for regulating firearms. Now perhaps the statute was poorly written, and I believe it was not only poorly written, but unconstitutionally written, but that is because it was written by idiots who do not at all use or understand guns, much less understand them constitutionally, but that is ALSO a question we need to address at the same time as we call these guys on the carpet about the whole mess.

Does the statute actually say “at home”? (If you know, please tell me where to look. I’ve scanned a LOT of the text and haven’t found the relevant part yet).

No, it doesn’t specify “at home” that’s been added by the gun grabbers. You do not have to build your gun at home. You can build it in your work shop, at a friend’s house, or at your work. IT only specifies you have to do it yourself, individually. You cannot buy it from pre-made by another person. It says nothing about getting help from someone, either. Interstate Commerce is the justification for the US Government having anything to say about any of it. . . in fact, the argument could be made they have no business regulating ANY gun business that has nothing to do with intra-state commerce, until it crosses a state line. Technically, and legally, if I wanted to build a gun and sell it to my next door neighbor, it should be no business legal of the US Government to regulate that sale. It has NOT ONE WHIT TO DO WITH INTERSTATE COMMERCE! The US Government is overstepping its constitutional mandate to try to regulate such a transaction.

Abolish the ATF. Abolish Federal agencies that are redundant of state agencies. Every state has an “agency” to license and otherwise regulate firearms. The same is true of Alcohol and Tobacco.

The Federal government has too many priorities. It shoud cease activities that are redundant of state activities and focus on a few priorities and do them well.

There is no way Congress and the President can govern effectively when so many priorties means nothing is a priority and nothing is done competently or successfully.

That is true regardless of whom is in Congress and who the President is.

Right.
But the sear and whatever parts that make the rifle automatic or semi-automatic are in the lower. What a dilemma for the ATF! May their suffering never end!

That’s irrelevant. Many guns these days are controlled electronically and actually have no sears. They are kept from firing by electronic means. . . And the triggers are in a cockpit somewhere many feet away from the actual firing mechanisms. How do you define a rail gun under the law? Where are those parts in that projectile system? It is entirely possible to build a small capacitor driven, hand-held rail gun that could impel a projectile fast enough to kill. Practical? Someday, most likely yes. Today, not so much.

“Hold on, Mr. Burglar, while I plug in, charge up, and load my railgun. . . It’ll take about fifty seconds or so and please don’t mind the high pitch whining sound. . . and would you mind standing over there, please, aiming is a bit tricky.“
WHACK!!!
THUD!
“DANG IT, HON! I woulda got him. Why’d you have to hit him with a rolling pin while he was a laughing his dang fool head off? I had this...“

I once designed a firing mechanism for a Science Fiction story I was writing that fired a bullet and rifle mechanism that was based on the early 1970s Daisy caseless ammunition system where the propellant was house in a hollow base of the projectile. The propellant was ignited by the firing of a CO₂ (or more efficient) laser beam from the breach which also burned the barrel clean with each shot. It could use a binary fuel that was perfectly safe away from the ignition system, and was sealed until the laser burned through the seal.

This is common practice for the ATF and is proof positive they only care about control and retaining their power. ATF knows many of their rediculous rulings and arbitrary pronouncements would never withstand any legitimate court and defy logic and reason. So the second they fear they will lose and possibly have to give up one of their pet unconstitutional laws or clown suit rulings they drop the charges and railroad some sort of other legal peril for the accused. It’s way past time to completely remove the F from this agency.

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