I Read The New Ghost Gun Rule So You Don't Have To
On August 24, 2022, a new regulation will go into effect due to an executive order made by the contemptible excuse for a human being elected to the White House by a horde or pampered millennials, stoned hippies, karens pissed off about mean tweets, and other assorted filth. It has come as no surprise to any gun owner that the Biden Administration launched an all-out assault on our 2nd Amendment rights in the form of executive action almost immediately upon taking office. The reason is really quite simple: Democrats want to completely disarm every American because it's damn hard to enslave people who are armed. This regulation is one of the consequences of having the White House occupied by a communist. However, there have also been a lot of mistruths spread about what is contained in the new rule which I feel need to be addressed by this article. I come today bearing good news: the final rule - while bad - is not nearly as horrible as what was proposed and provides some pretty good opportunities for the industry to effectively nullify it. I read the rule in its entirety as a public service so you don't have to.
1. It clarifies the definition of a "frame" or "receiver" for firearms generally. It does not classify the upper receiver of an AR-15 as a "firearm".
Everybody knows that most firearms can easily be broken down into different parts for cleaning. It question of when a pile of parts becomes a "firearm" is surprisingly unsettled. The purpose of this clarification was due to findings by certain courts that the lower receiver of an AR-15 did not meet the federal definition of a firearm. See e.g. United States v. Rowold, 429 F. Supp. 3d 469, 475-76 (N.D. Ohio 2019); United States v. Roh, 8:14-cr-00167-JVS, Minute Order p. 6 (C.D. Cal. July 27, 2020); United States v. Jimenez, 191 F. Supp. 3d 1038, 1041 (N.D. Cal. 2016). Since it is only the frame or receiver of a firearm which requires a background check when purchased through an FFL, the new rule purports to provide clarification to which part of a firearm is, in fact, the frame or the receiver. The new rule defines these parts as follows:
Handgun: The term “frame” means the part of a handgun, or variants thereof, that provides housing or a structure for the primary energized component designed to hold back the hammer, striker, bolt, or similar component prior to initiation of the firing sequence (i.e., sear or equivalent), even if pins or other attachments are required to connect such component to the housing or structure.
Rifle or Shotgun: The term “receiver” means the part of a rifle, shotgun, or projectile weapon other than a handgun, or variants thereof, that provides housing or a structure for the primary component designed to block or seal the breech prior to initiation of the firing sequence ( i.e., bolt, breechblock, or equivalent), even if pins or other attachments are required to connect such component to the housing or structure.)
Although this general definition would appear to classify the upper receiver of an AR-15 as a "firearm", the rule goes on to state as follows: "AR-15/M-16 variant firearms: The receiver is the lower part of the weapon that provides housing for the trigger mechanism and hammer (i.e., lower receiver)." This is because the lower receiver of the AR-15 had been previously determined to be the "receiver" of an AR-15 prior to April 26, 2022. The big takeaway from this portion of the new rule is that, as before, only one part of each firearm will be classified as the "frame" or the "receiver" by the BATF. Neither private citizens nor FFLs will be required to deal with the hassle of a single functional weapon having multiple components each individually classified as a firearm.
2. It classifies some 80% lower receivers as "firearms". The question of whether an 80% lower is considered a "firearm" depends greatly upon the context under which it is sold and what types of items are available for sale together with the 80% lower receiver..
The final rule states that "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." But here is the real kicker! The rule goes on to state that "[w]hen 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."
A legal nerd like me looks at this and asks what the term readily means. Of course the rule doesn't tell us. That would be to easy. However, the rule does provide eight factors for the Director of the ATF to consider when determining whether an incomplete frame or receiver can "readily" be made to function as a complete frame or receiver. Those factors are as follow: "(1) Time (how long it takes to finish the process); (2) Ease (how difficult it is to do so; (3) Expertise (what knowledge and skills are required); (4) Equipment (what tools are required); (5) Parts availability (whether additional parts are required, and how easily they can be obtained; (6) Expense (how much it costs); (7) Scope (the extent to which the subject of the process must be changed to finish it); and (8) Feasibility (whether the process would damage or destroy the subject of the process, or cause it to malfunction)."
There are a number of examples given as to what kind of 80% frame or receiver would qualify as a firearm under the rule. These include frames or receivers sold with jigs and templates or those with pre-drilled or marked index or pilot holds. However, the rule states express states that "[a] billet or blank of an AR-15 variant receiver without critical interior areas having been indexed, machined, or formed that is not sold, distributed, or possessed with instructions, jigs, templates, equipment, or tools such that it may readily be completed is not a receiver." The same appears to be true of 80% receivers sold for the AK-47. The rule reads "[a] flat blank of an AK variant receiver without laser cuts or indexing that is not sold, distributed, or possessed with instructions, jigs, templates, equipment, or tools is not a receiver, as a person cannot readily fold the flat to provide housing or a structure for the primary component designed to block or seal the breech prior to initiation of the firing sequence."
What the BATF has done here is classified whether an 80% lower is a "frame" or "receiver" (and thus, a "firearm") depending upon the context in which it is sold! Let's take the example of an 80% AR-15 lower receiver sold on the website for Defense Distributed (the makers of the Ghost Gunner 3 machine which I so proudly own). Under the rules as they are written, an 80% lower receiver sold on the website of a company like Defense Distributed would likely be considered a firearm by the BATF. Why? Because Defense Distributed also sells that nifty Ghost Gunner 3 machine together with frames, jigs, and software designed to make completion a breeze (although costly). However, let's say the good people over at DD wanted to send a big "fuck you" to the BATF. They could completely get out of the business of selling 80% lower receivers altogether, sell that portion of their business to an insider, and have "Ghost Gunner 3 compatible 80% lowers" sold by a different business with a different location and a different website. I fully expect - and hope - that this is exactly the type of gamesmanship that we see with these new rules.
My assertion about context being of particular important is further emphasized in another unreasonably wordy portion of the rule which states as follows: "The Director may issue a determination (classification) to a person whether an item, including a kit, is a firearm . . .as defined in this part upon receipt of a written request or form prescribed by the Director. Each such voluntary request or form submitted shall be executed under the penalties of perjury with a complete and accurate description of the item or kit . .. [a] firearm sample must include all accessories and attachments relevant to such classification as each classification is limited to the firearm in the configuration submitted. Each request for classification of a partially complete, disassembled, or nonfunctional item or kit must contain any associated templates, jigs, molds, equipment, or tools that are made available by the seller or distributor of the item or kit to the purchaser or recipient of the item or kit, and any instructions, guides, or marketing materials if they will be made available by the seller or distributor with the item or kit. (emphasis added).
The bottomline here is that there is going to be plenty of room for gamesmanship here. There should be. There is also going to be a lot of litigation here and the question of when a part becomes a "firearm" is going to remain the subject of intense litigation.
3. It requires federally licensed dealers to apply a serial number to any privately made firearms which come into their possession.
The reason given for this is because federally licensed dealers are required to keep detailed records of any firearms which come into or out of their possession. This has led to some dealers leaving the portion of their records where a serial number will be recorded as a blank space. This allegedly created problems for the BATF and the FFL alike during inspections, and if a privately made firearm was stolen from the dealer's inventory, made it impossible to fulfill their duty to report the theft. The final rule requires an FFL to mark privately made firearms when they are received into inventory or kept overnight for any reason. A privately made firearm repaired and returned the same day would not need to be marked. The rule has specific rules as to the nature of how and where markings are to be applied to firearms which don't really matter to anyone who is not an FFL.
The bottomline is that persons who manufacture firearms in their homes will generally need to perform their own repairs on such firearms. Once an FFL receives the privately made firearm, they will be required to mark it and create a record of it unless returned to you the same day. It should be noted that nothing contained in the new rule requires anyone other than an FFL to place any kind of marking on a privately made firearm. If I manufacture an AR-15 or AR-10 with my nifty Ghost Gunner 3 machine, I remain under no legal obligation to place a serial number or any other kind of marking on that receiver. However, if I needed to take that firearm to a licensed individual for repair, they would be obligated to permanently mark my privately made weapon unless it is returned to me on the same day.
4. It clarifies the marking requirements for suppressors (referred to as 'silencers' under the law even though they are not silent)
The National Firearms Act ("NFA") stupidly classifies any part of a silencer to be a silencer in and of itself. This led to vast confusion on how a silencer needed to be marked in order to comply with the law. The new rule simply clarifies something that most manufactureres were doing anyway: by stating that it is only the outer tube of a silencer which must be marked in compliance with the law. It will be interesting to see how this one turns out. First of all, suppressors shouldn't even be regulated under the NFA. While they do reduce the noise made by a firearm to a level that is marginally hearing-safe, the report is still louder than that noise made by a jackhammer or a jet engine. However, until we can get a Congress and an administration that will help us to protect our ears without losing situational awareness, we at least have an answer to this stupid question.
1. It clarifies the definition of a "frame" or "receiver" for firearms generally. It does not classify the upper receiver of an AR-15 as a "firearm".
Everybody knows that most firearms can easily be broken down into different parts for cleaning. It question of when a pile of parts becomes a "firearm" is surprisingly unsettled. The purpose of this clarification was due to findings by certain courts that the lower receiver of an AR-15 did not meet the federal definition of a firearm. See e.g. United States v. Rowold, 429 F. Supp. 3d 469, 475-76 (N.D. Ohio 2019); United States v. Roh, 8:14-cr-00167-JVS, Minute Order p. 6 (C.D. Cal. July 27, 2020); United States v. Jimenez, 191 F. Supp. 3d 1038, 1041 (N.D. Cal. 2016). Since it is only the frame or receiver of a firearm which requires a background check when purchased through an FFL, the new rule purports to provide clarification to which part of a firearm is, in fact, the frame or the receiver. The new rule defines these parts as follows:
Handgun: The term “frame” means the part of a handgun, or variants thereof, that provides housing or a structure for the primary energized component designed to hold back the hammer, striker, bolt, or similar component prior to initiation of the firing sequence (i.e., sear or equivalent), even if pins or other attachments are required to connect such component to the housing or structure.
Rifle or Shotgun: The term “receiver” means the part of a rifle, shotgun, or projectile weapon other than a handgun, or variants thereof, that provides housing or a structure for the primary component designed to block or seal the breech prior to initiation of the firing sequence ( i.e., bolt, breechblock, or equivalent), even if pins or other attachments are required to connect such component to the housing or structure.)
Although this general definition would appear to classify the upper receiver of an AR-15 as a "firearm", the rule goes on to state as follows: "AR-15/M-16 variant firearms: The receiver is the lower part of the weapon that provides housing for the trigger mechanism and hammer (i.e., lower receiver)." This is because the lower receiver of the AR-15 had been previously determined to be the "receiver" of an AR-15 prior to April 26, 2022. The big takeaway from this portion of the new rule is that, as before, only one part of each firearm will be classified as the "frame" or the "receiver" by the BATF. Neither private citizens nor FFLs will be required to deal with the hassle of a single functional weapon having multiple components each individually classified as a firearm.
2. It classifies some 80% lower receivers as "firearms". The question of whether an 80% lower is considered a "firearm" depends greatly upon the context under which it is sold and what types of items are available for sale together with the 80% lower receiver..
The final rule states that "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." But here is the real kicker! The rule goes on to state that "[w]hen 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."
A legal nerd like me looks at this and asks what the term readily means. Of course the rule doesn't tell us. That would be to easy. However, the rule does provide eight factors for the Director of the ATF to consider when determining whether an incomplete frame or receiver can "readily" be made to function as a complete frame or receiver. Those factors are as follow: "(1) Time (how long it takes to finish the process); (2) Ease (how difficult it is to do so; (3) Expertise (what knowledge and skills are required); (4) Equipment (what tools are required); (5) Parts availability (whether additional parts are required, and how easily they can be obtained; (6) Expense (how much it costs); (7) Scope (the extent to which the subject of the process must be changed to finish it); and (8) Feasibility (whether the process would damage or destroy the subject of the process, or cause it to malfunction)."
There are a number of examples given as to what kind of 80% frame or receiver would qualify as a firearm under the rule. These include frames or receivers sold with jigs and templates or those with pre-drilled or marked index or pilot holds. However, the rule states express states that "[a] billet or blank of an AR-15 variant receiver without critical interior areas having been indexed, machined, or formed that is not sold, distributed, or possessed with instructions, jigs, templates, equipment, or tools such that it may readily be completed is not a receiver." The same appears to be true of 80% receivers sold for the AK-47. The rule reads "[a] flat blank of an AK variant receiver without laser cuts or indexing that is not sold, distributed, or possessed with instructions, jigs, templates, equipment, or tools is not a receiver, as a person cannot readily fold the flat to provide housing or a structure for the primary component designed to block or seal the breech prior to initiation of the firing sequence."
What the BATF has done here is classified whether an 80% lower is a "frame" or "receiver" (and thus, a "firearm") depending upon the context in which it is sold! Let's take the example of an 80% AR-15 lower receiver sold on the website for Defense Distributed (the makers of the Ghost Gunner 3 machine which I so proudly own). Under the rules as they are written, an 80% lower receiver sold on the website of a company like Defense Distributed would likely be considered a firearm by the BATF. Why? Because Defense Distributed also sells that nifty Ghost Gunner 3 machine together with frames, jigs, and software designed to make completion a breeze (although costly). However, let's say the good people over at DD wanted to send a big "fuck you" to the BATF. They could completely get out of the business of selling 80% lower receivers altogether, sell that portion of their business to an insider, and have "Ghost Gunner 3 compatible 80% lowers" sold by a different business with a different location and a different website. I fully expect - and hope - that this is exactly the type of gamesmanship that we see with these new rules.
My assertion about context being of particular important is further emphasized in another unreasonably wordy portion of the rule which states as follows: "The Director may issue a determination (classification) to a person whether an item, including a kit, is a firearm . . .as defined in this part upon receipt of a written request or form prescribed by the Director. Each such voluntary request or form submitted shall be executed under the penalties of perjury with a complete and accurate description of the item or kit . .. [a] firearm sample must include all accessories and attachments relevant to such classification as each classification is limited to the firearm in the configuration submitted. Each request for classification of a partially complete, disassembled, or nonfunctional item or kit must contain any associated templates, jigs, molds, equipment, or tools that are made available by the seller or distributor of the item or kit to the purchaser or recipient of the item or kit, and any instructions, guides, or marketing materials if they will be made available by the seller or distributor with the item or kit. (emphasis added).
The bottomline here is that there is going to be plenty of room for gamesmanship here. There should be. There is also going to be a lot of litigation here and the question of when a part becomes a "firearm" is going to remain the subject of intense litigation.
3. It requires federally licensed dealers to apply a serial number to any privately made firearms which come into their possession.
The reason given for this is because federally licensed dealers are required to keep detailed records of any firearms which come into or out of their possession. This has led to some dealers leaving the portion of their records where a serial number will be recorded as a blank space. This allegedly created problems for the BATF and the FFL alike during inspections, and if a privately made firearm was stolen from the dealer's inventory, made it impossible to fulfill their duty to report the theft. The final rule requires an FFL to mark privately made firearms when they are received into inventory or kept overnight for any reason. A privately made firearm repaired and returned the same day would not need to be marked. The rule has specific rules as to the nature of how and where markings are to be applied to firearms which don't really matter to anyone who is not an FFL.
The bottomline is that persons who manufacture firearms in their homes will generally need to perform their own repairs on such firearms. Once an FFL receives the privately made firearm, they will be required to mark it and create a record of it unless returned to you the same day. It should be noted that nothing contained in the new rule requires anyone other than an FFL to place any kind of marking on a privately made firearm. If I manufacture an AR-15 or AR-10 with my nifty Ghost Gunner 3 machine, I remain under no legal obligation to place a serial number or any other kind of marking on that receiver. However, if I needed to take that firearm to a licensed individual for repair, they would be obligated to permanently mark my privately made weapon unless it is returned to me on the same day.
4. It clarifies the marking requirements for suppressors (referred to as 'silencers' under the law even though they are not silent)
The National Firearms Act ("NFA") stupidly classifies any part of a silencer to be a silencer in and of itself. This led to vast confusion on how a silencer needed to be marked in order to comply with the law. The new rule simply clarifies something that most manufactureres were doing anyway: by stating that it is only the outer tube of a silencer which must be marked in compliance with the law. It will be interesting to see how this one turns out. First of all, suppressors shouldn't even be regulated under the NFA. While they do reduce the noise made by a firearm to a level that is marginally hearing-safe, the report is still louder than that noise made by a jackhammer or a jet engine. However, until we can get a Congress and an administration that will help us to protect our ears without losing situational awareness, we at least have an answer to this stupid question.
Comments
Post a Comment