Explore The NRA Universe Of Websites

APPEARS IN News

National Review Wrong on ATF Frame or Receiver Rule

Monday, August 21, 2023

National Review Wrong on ATF Frame or Receiver Rule

Political observers expect the Washington Post and the New York Times to carry water for Joe Biden’s Department of Justice gun control agenda. It’s surprising when the conservative National Review seemingly bends over backwards to defend the weaponized agency in a poorly researched and written piece.

On August 9, National Review published an item with the confident title “Yes, the ATF Can Legally Regulate Ghost Guns.” The ill-informed piece was written by a summer intern. If it was an unpaid internship, the publication got every penny’s worth.

At issue is the Bureau of Alcohol, Tobacco, Firearms and Explosives rule 2021R-05, concerning the “Definition of “Frame or Receiver” and Identification of Firearms.” Published April 26, 2022, the rule, in part, contends that ATF has the statutory authority to regulate so-called unfinished or 80-percent frames or receivers. As firearms built from unregulated parts for personal use do not require markings and are not subject to federal recordkeeping, gun control advocates refer to firearms constructed using unfinished frames or receivers as “ghost guns” to spook the ignorant.

Federal law, 18 U.S.C. § 921(a)(3), defines “firearm” for the purposes of the Gun Control Act (GCA) as follows:

(3) The term “firearm” means (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.

Note that the definition includes the “the frame or receiver of any such weapon.” The practical effect of this definition is that the frame or receiver of a firearm must be marked with a serial number, is subject to federal recordkeeping requirements, and a non-Federal Firearms Licensee seeking to acquire a frame or receiver from a retailer must undergo National Instant Criminal Background Check System (NICS) check prior to transfer.

ATF rule 2021R-05 seeks to sweep items that are not in fact frames or receivers into the statutory definition of “firearm.” The rule contains the following expansive regulatory definition.

(c) Partially complete, disassembled, or nonfunctional frame or receiver.

The terms “frame” and “receiver” shall include a partially complete, disassembled, or nonfunctional frame or receiver, including a frame or receiver parts kit, that is designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver, i.e., to house or provide a structure for the primary energized component of a handgun, breech blocking or sealing component of a projectile weapon other than a handgun, or internal sound reduction component of a firearm muffler or firearm silencer, as the case may be. The terms shall not include a forging, casting, printing, extrusion, unmachined body, or similar article that has not yet reached a stage of manufacture where it is clearly identifiable as an unfinished component part of a weapon (e.g., unformed block of metal, liquid polymer, or other raw material). When issuing a classification, the Director may consider any associated templates, jigs, molds, equipment, tools, instructions, guides, or marketing materials that are sold, distributed, or possessed with the item or kit, or otherwise made available by the seller or distributor of the item or kit to the purchaser or recipient of the item or kit.

NRA pointed out ATF’s flawed logic in the organization’s August 2021 comments on the initial draft of ATF rule 2021R-05. That document explained,

This definition is not consistent with the statutory definition of “firearm.” The relevant portion of that definition defines firearm as “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 [and] the frame or receiver of any such weapon . . . .” 18 U.S.C. § 921(a)(3). With this definition Congress made clear that a “frame or receiver” is not itself a “weapon.” Otherwise, the second clause would read “the weapon of any such weapon.”

Since a “frame or receiver” is not a weapon, then the “readily converted” clause does not apply. If Congress had intended for those items that may be readily converted into frames or receivers to also be considered frames or receivers, then using the same language of the first clause in the second clause would have been a simple way to accomplish that intent.

ATF is correct that a “weapon” that “may readily be converted to expel a projectile by the action of an explosive” is legally a firearm, but a forging, casting, or other raw material that “may readily be converted” into a “frame or receiver” is, as far as the GCA is concerned, nothing.

Understanding that ATF did not have the authority it exerted with rule 2021R-05, U.S. District Court for the Northern District of Texas Judge Reed O’Connor vacated the rule in late June. On August 8, the U.S. Supreme Court granted a stay that allows the government to enforce the rule during the pendency of the government’s appeal to the U.S. Court of Appeals for the Fifth Circuit and a potential appeal for review at the Supreme Court.

In a bizarre turn, to argue that ATF has the authority to regulate these items, the National Review writer either intentionally misread and then selectively quoted the definition for “destructive device.” The author stated,

One might fairly argue, as the opponents of the ATF regulation did, that parts of a weapon are not to be confused with an actual weapon. But this isn’t the only definition of “firearm” in the GCA.

To quote the law verbatim, “The term ‘firearm’ means . . . any destructive device.” A destructive device is then defined as, among other things, “any combination of parts either designed or intended for use in converting any device into any destructive device described in subparagraph (A) or (B)”…

And what does subparagraph (B) describe? “any type of weapon . . . by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant.”

As previously noted, the statutory definition of “firearm” at 18 U.S.C. § 921(a)(3) does include “any destructive device.” However, the author’s truncated definition of “destructive device” subparagraph (B) excludes vital limiting language.

Here is the complete subparagraph (B) from the definition of “destructive device” at 18 U.S.C. § 921(a)(4).

(B) any type of weapon (other than a shotgun or a shotgun shell which the Attorney General finds is generally recognized as particularly suitable for sporting purposes) by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, and which has any barrel with a bore of more than one-half inch in diameter;

That last part is important.

Unless a firearm is over .50-caliber, it does not qualify as a destructive device. Even if a firearm is over .50-caliber, it still may not be a “destructive device,” based on its suitability for sporting purposes – such as most shotguns. Aside from the shotgun exemption, the “destructive device” definition also exempts “any other device which the Attorney General finds is not likely to be used as a weapon, is an antique, or is a rifle which the owner intends to use solely for sporting, recreational or cultural purposes.” Big game rifles chambered in sporting calibers like the .600 Nitro Express have been exempted under this provision.

Examples of actual “destructive devices” defined under the term’s subparagraph (B) can be found in ATF’s “Firearms Guide - Identification of Firearms Within the Purview of the National Firearms Act.” They include weapons like the Boys .55Cal Anti-tank Rifle and mortars.

The type of 9mm pistols and .223/5.56x45mm rifles gun owners make using unfinished frames or receivers most certainly do not meet the definition of “destructive devices.” Nor does any combination of their parts, finished or unfinished.

In short, the National Review author’s appeal to the “destructive device” definition to defend ATF’s overreach is a non sequitur.

If a National Review writer or others would like to lobby for unfinished frames or receivers be regulated like firearms, they should direct their policy arguments to the legislative branch. Were Congress to enact legislation altering the relevant statute, regulation of these items would still be suspect under the Second Amendment as interpreted by the U.S. Supreme Court in New York State Rifle & Pistol Association v. Bruen (2022), as regulating the home manufacture of firearms for personal use is not part of “the Nation’s historical tradition of firearm regulation.” However, such an effort would at least have a superficial measure of legitimacy, unlike the Biden regime’s endless executive overreach.

IN THIS ARTICLE
ATF Privately Made Firearm
TRENDING NOW
NRA Releases Statement on Rahimi Decision

Friday, June 21, 2024

NRA Releases Statement on Rahimi Decision

Today, in United States v. Rahimi, the U.S. Supreme Court upheld the federal prohibition on firearms possession by individuals subject to domestic violence restraining orders.

Return to Paradise? Government of Turks and Caicos Amends Draconian Weapons Law

News  

Monday, June 24, 2024

Return to Paradise? Government of Turks and Caicos Amends Draconian Weapons Law

We have recently been reporting on the untenable situation in the popular tourist destination of the Turks and Caicos Islands (TCI), where a harsh weapons law with mandatory imprisonment for violators has been snaring Americans ...

Weaponizing Truth: U.K. Newspaper Fears D.C. Crime Reporting Feeds “Rightwing Agenda”

News  

Monday, June 24, 2024

Weaponizing Truth: U.K. Newspaper Fears D.C. Crime Reporting Feeds “Rightwing Agenda”

Last month, a progressive Chicago alderman decided to stop disseminating alerts about crime in her ward because “over-reporting of crime leads to an inaccurate public perception about violent crime rates and negatively impacts our most ...

NRA Scores Legal Victory Against ATF; “Pistol Brace Rule” Enjoined From Going Into Effect Against NRA Members

Monday, April 1, 2024

NRA Scores Legal Victory Against ATF; “Pistol Brace Rule” Enjoined From Going Into Effect Against NRA Members

NRA Members Among the Largest Class Protected from Draconian Rule

Felonies Aren’t What They Used To Be

News  

Monday, June 24, 2024

Felonies Aren’t What They Used To Be

In recent years, many on the political left had encouraged use of the politically correct term “justice-involved individual” to refer to those convicted of, even serious, crimes. That is, until May 30. Upon that date, the great ...

The Trace Series Ends as it Began

News  

Monday, June 24, 2024

The Trace Series Ends as it Began

This is our final installment of a critical analysis of a podcast series from Michael Bloomberg’s online anti-gun propaganda mill, The Trace. 

Fallout from Trudeau’s Gun Grab: Crime is Up, Number of Gun Ranges Drops

News  

Monday, June 17, 2024

Fallout from Trudeau’s Gun Grab: Crime is Up, Number of Gun Ranges Drops

In Canada, a ban on over 1,500 firearm makes, models and variants, together with a mandatory government confiscation (“buyback”) requirement, was imposed by Liberal Prime Minister Justin Trudeau over four years ago. 

Kansas: Legislators Seize Special Session Opportunity to Start Discussion for 2025 Session

Wednesday, June 19, 2024

Kansas: Legislators Seize Special Session Opportunity to Start Discussion for 2025 Session

Last month, Gov. Laura Kelly called a special session of the Kansas Legislature to deal with tax issues. The special session adjourned this week, lasting less than 24 hours. Despite the brevity, pro-gun Senators J.R. ...

U.S. Supreme Court invalidates ATF Rule Classifying Bump Stocks as Machineguns

Friday, June 14, 2024

U.S. Supreme Court invalidates ATF Rule Classifying Bump Stocks as Machineguns

Today, the U.S. Supreme Court held that the Bureau of Alcohol, Tobacco, Firearms and Explosives unlawfully exceeded its authority by classifying bump stocks as machineguns.

Delaware: Senate Committee Passes Legislation to Restrict Firearms on College Campuses and Properties!

Wednesday, June 19, 2024

Delaware: Senate Committee Passes Legislation to Restrict Firearms on College Campuses and Properties!

Last night, the Senate Judiciary Committee passed House Bill 311, restricting firearms on college campuses and college-owned properties, even for concealed carry permit holders. This legislation is now eligible for a floor vote. Please contact your state ...

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.