1. A New Design Feature of the AR-15 Challenges the Definition of a Firearm

    A New Design Feature of the AR-15 Challenges the Definition of a Firearm

    By Maryland Criminal Defense Attorney Seth Okin of Seth Okin Attorney at Law

    Seth Okin

     

    A technicality in the legal definition of what constitutes a firearm has raised questions about AR-15 rifles. This confusion is complicating cases against those charged with illegally buying, selling, or building this rifle. 

    Specifically, this technicality concerns whether the lower receiver, an essential component of the semiautomatic rifle, meets the definition of a gun. 

    The Legal Definition of a Gun

    For years, the Gun Control Act has guided the definition and regulation of the firearm industry throughout the U.S. Under the U.S. Code of Federal Regulations, a firearm receiver or frame has two primary functions: to hold the components related to the weapon’s firing mechanism (such as a bolt or breechblock), as well as to connect these components to the barrel of the firearm.

    This component of a firearm is legally considered to be a gun on its own, and, as a result, is subject to the same regulation and restrictions as a firearm that is completely assembled. However, some defense attorneys have found a loophole in this definition due to the unique build of the AR-15.

    What Makes the AR-15 Unique?

    The receiver of an AR-15 is split into two parts: an upper receiver and a lower receiver. Of the components included in the US Code of Federal Regulations’ definition, a majority of them are contained in the lower half — yet some are contained in the upper half. Therefore, it is called into question if the lower receiver alone can be considered a firearm, as it does not hold all the components listed in the definition of a receiver or frame.

    The lower receiver of an AR-15 sits right above the pistol grip, holding the trigger, hammer, safety, and a slot for the magazine to be attached. However, it does not have a bolt or breechblock, nor is it threaded to receive the barrel. Instead, both of these components are located in the upper receiver. 

    Unlike the AR-15, the majority of guns do not have a split receiver. It is required by law that licensed manufacturers mark the receiver with a serial number to assist in identifying and tracking the firearm. As for AR-15 rifles, however, only the lower receiver is demarcated with a serial number and must be purchased from a licensed dealer. This leaves the upper receiver without a serial number and available for easy purchase, like the other components of the firearm.

    Unfinished Lower Receivers

    With all other components of the weapon legally allowed to be sold to buyers, a market for unfinished lower receivers has developed in the firearms and munitions world. The unfinished lower receivers are often referred to as “80% lowers,” because they are approximately 80% complete and thus do not have serial numbers. They typically only require additional machining or drilling before they are usable and are considered by the law to be regulated firearms. Yet the finishing of unfinished lower receivers is considered illegal if done by a person who is unlicensed.

    While unfinished lower receivers are technically legal under federal law, they are extremely controversial. This is because they can be bought and sold without any restriction, as they are not yet classified as firearms. Yet they can be converted into finished lower receivers and incorporated into a fully function firearm with relative ease.

    What Are Ghost Guns?

     The buying and selling of unfinished lower receivers often takes place so that people can build “ghost guns,” which are guns without serial numbers that are assembled by unlicensed individuals piece by piece. By personally making a firearm, owners can avoid background checks and other legal regulations that are typically required when purchasing a gun. This bypassing of gun laws leaves ghost guns untraceable and difficult to monitor.

    Regulating Lower Receivers

     By treating the lower receiver as a firearm, the Bureau of Alcohol, Tobacco, Firearms and Explosives is able to regulate who can obtain it. Considering the lower receiver to be a gun helps in ensuring that people who attempt to purchase it must abide by regulation and pass a background test. Additionally, by treating it as a gun, people who are prohibited from possessing firearms can be charged for owning lower receivers.

    Challenging the Definition

     Challenging the current consideration of lower receivers as firearms severely undermines the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ ability to regulate guns nationwide. If the lower receiver is no longer legally considered a gun, it would be available for purchase from an unlicensed dealer and without a background check.

     It is expected that this would lead to a drastic increase in the number of ghost guns on the market, as individuals would be able to easily purchase finished lower receivers. This would likely accelerate the issue of not knowing how many ghost guns are owned by individuals, or how many are for sale across the country.

     The Impact on Prosecution

     This loophole in the definition of whether lower receivers can be considered firearms is hindering criminal cases nationwide. Prosecutors have long relied on lower receivers being classified as guns and have regularly brought charges based on this specific component. 

     Yet this ambiguity in the legal definition has allowed some people who have been accused of illegally selling or possessing this part to escape prosecution. At least 5 criminal cases have successfully questioned this technicality since 2016, resulting in charges being dropped, or having cases entirely dismissed.

     As a result, there has been a push in recent years from all levels of law enforcement for the Bureau of Alcohol, Tobacco, Firearms, and Explosives to correct the legal definition of what constitutes as a gun under the law, as it currently could complicate thousands of criminal cases. At the start of 2020, there has been no public record of the Bureau’s actions regarding this matter.

     

    By Maryland Criminal Defense Attorney Seth Okin of Seth Okin Attorney at Law

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