The internet, or at least the parts of it that deal with guns, is aflame in recent days about an ATF decision to defer prosecution against one Joseph Roh. But who is Joseph Roh? Why does his deferred prosecution matter? Did the ATF actually shake federal gun law to its core? To answer that question immediately – maybe. If this were some sort of claim/fact rating article, I’d rate the claim “this is a big deal” as half-true.

What Actually Happened?

On Friday the 11th, CNN ran an article titled “He sold illegal AR-15s. Feds agreed to let him go free to avoid hurting gun control efforts”. This, understandably, gathered some attention. The salient facts of the article are as follows.

First, Joseph Roh held what he called “build parties” to avoid having to get an FFL. People, among them prohibited persons, “pushed a green button” and milled out their AR-15 receiver. He then assembled the rest of the gun. His customers paid about $1000 for this. The ATF advised him this was illegal and constituted manufacturing firearms without a license. He continued the practice, and was arrested and charged.

Secondly, many years after the fact, and almost a full year after the four-day bench trial, the ATF and Federal prosecutors have quietly cut him a sweet plea deal. If Roh pleads guilty, the government would defer prosecution for one year. If Roh avoids trouble for that year, he walks away a free man, no criminal record, no jail time. Roh accepted the deal, and according to his attorney now “deals in industrial vacuums”.

So, why the attention? Because the Feds came to this arrangement due to an argument made by Roh’s attorney, which was accepted by the judge in a tentative, or non-binding, ruling.

The Devil is in the Definitions

Roh’s attorney made the case, and according to a plain reading of the law, he appears to be correct, that an AR-15 lower receiver does not meet the federal definition of a firearm. While many of you are probably familiar with this fact, some are perhaps not. So let’s review the definitions.

First. A firearm is defined in 18 USC § 921(a)(3).

(A) 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; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.

Emphasis mine. The frame or receiver. So far, it seems Mr. Roh has indeed been breaking the law by illegally manufacturing firearms without a license. The important part is how a receiver is defined. That definition is in 27 C.F.R. § 478.11 and was written by the ATF.

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 Argument in Question

As anyone who has built their own AR-15 can tell you, while the lower receiver of an AR does indeed house the hammer and firing mechanism, it does not house the bolt. There is a lot of confusion over what exactly this definition means. Roh’s attorney and the judge interpret it to mean that to be a receiver, and thus a firearm, the part must provide housing for three separate components. The hammer, the bolt or breechblock (either or), and the firing mechanism.

There is an argument to be made that this definition really means that to be a receiver the component must house only one of a hammer, bolt, or breechblock, as well as the firing mechanism. Two parts only. That having been said, the ATF did not make that argument. Instead, the ATF argues that they have always interpreted the AR-15 lower receiver to be a firearm, and so it should remain that way. As the judge writes:

The Government’s theory of conviction rests on [the] proposition that the AFT had “classified” finished receivers as firearms, notwithstanding the conflict with the definition published by the ATF in its regulations.

So, no. According to the rules as written (RAW as my fellow D&D nerds would say), an AR-15 lower receiver is not a “receiver”, and thus not a firearm. Period, end of. The judge goes on to say that the ATF’s rulemaking process here was in violation of federal law, and thus not binding. That is important. These definitions were written by the ATF. The ATF can change them, but to do so has certain legal requirements, which the judge asserts they did not meet.

Wait, Stop, Don’t go Celebrating Yet

The catch, and why I originally said that this was only kind of a big deal, instead of definitely a big deal, is that this was all written in a tentative ruling. It is not legally binding, as the Feds struck a plea deal with Roh as outlined above. To be absolutely, 100%, totally crystal clear, nothing has changed. You still cannot order a lower receiver to your door. If you want to go churn out a bunch of AR-15 lower receivers (or any of a number of other lower receivers that don’t precisely meet this definition) to sell, you run the risk of prosecution for manufacturing firearms without a license. And a different judge might feel differently.

At some point in the future, this may be the basis of a different case, one that would change things. As the common refrain on gun boards goes though, most people don’t want to be a test case.

The Original CNN Article.

The Tentative Court Order.