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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.

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