Three different judges have recently ruled that the design of the AR-15 makes the popular rifle impervious to federal regulation when it is bought and sold piece by piece.
Authorities have responded to the discovery of the legal loophole with alarm. They have warned that the government’s ability to effectively enforce guns law across the United States could be at risk.
“Now the cat is out of the bag, so I think you’ll see more of this going on,” Stephen Halbrook, an attorney who has written books on gun law and history, told The Associated Press. “Basically, the government has gotten away with this for a long time.”
“I think the criminal defense bar has kind of let their clients down for letting this go on for all these years,” he added.
According to federal regulations, a firearm’s “receiver” or “frame” is the defining piece of the weapon. In fact, it is considered to be the gun itself.
An AR-15 receiver is split into upper and lower parts. So, the Bureau of Alcohol, Tobacco, Firearms and Explosives has for decades characterized the semiautomatic rifle by the lower receiver, which sits above the pistol grip and houses the trigger, the hammer and the slot for a magazine. Prosecutors have regularly brought charges on the part.
However, some of the components listed in the legal definition of a firearm are actually contained in the upper receiver. Defense attorneys have started seizing on this discrepancy to contend that the lower receiver alone cannot be considered a gun.
How the AR-15 could “seriously undermine” gun control
Since 2016, at least five defendants have gotten charges dropped or avoided prison time based on the split-receiver argument, The AP reported. Some of those who avoided prosecution for selling or possessing AR-15 parts were convicted felons.
In the latest such case, a federal judge in Ohio last month dismissed charges against two men accused of making false statements to buy AR-15 lower receivers. The judge the government’s claim that the parts were legally firearms “plainly erroneous.”
“Misapplying the law for a long time provides no immunity from scrutiny,” he wrote in his order to dismiss.
An ATF spokeswoman told The AP that the agency is “keenly assessing” Carr’s decision but otherwise declined to answer questions.
Prosecutors and ATP officials have previously warned that the rulings risk effectively legalizing “ghost guns” — which are assembled by individuals from largely untraceable parts — even for people barred from owning firearms.
In 2018, after a central California judged tentatively ruled that AR-15 lower receivers are not guns, prosecutors reached a plea deal with the defendant. They said they feared a final decision could “seriously undermine the ATF’s ability to trace and regulate firearms nationwide.”
Adam Winkler, a UCLA constitutional law professor and Second Amendment expert, predicted to CNN that the judge’s order would nonetheless have “broad implications” and would encourage others to challenge existing law.
In 2016, then-Attorney General Loretta Lynch responded to a similar ruling in Northern California by writing a letter to House Speaker Paul Ryan. Lynch said the agency should take “regulatory or administrative” action to close any legal loophole for AR-15 parts. But there is no public record of the agency taking her advice, The AP reported.
Still, AR-15 lower receivers are involved in just a fraction of the thousands of federal gun charges filed each year, and some of the cases still end in prison sentences. People can also be charged under state gun laws.
“Only God knows who is alive today because of Jack Wilson”
The growing concerns about the AR-15’s legal status come as Democratic presidential contenders have vowed to pursue far-reaching limitations on guns. Some have singled out the AR-15 because of its use in high-profile mass shootings, like those in Newton, Connecticut, Las Vegas, and Parkland, Florida.
“Hell yes, we are going to take your AR-15s, your AK-47s, we are not going to allow them to be used against fellow Americans any more,” failed 2020 candidate Beto O’Rourke declared on the Democratic debate stage in September 2019.
“If you’re using a weapon with an effective range of over 1,500 meters, you are not defending yourself,” prominent gun control activist David Hogg said of the AR-15 during a February appearance on MSNBC. “You are hunting a human being.”
Despite the vilification, though, and in some cases because of it, the AR-15 has retained its status as “America’s Rifle.” Some 18 million AR-style rifles are estimated to be legally owned in the United States, and like rifles in general, they play a relatively small role in violent crime.
American gun owners have proved they are simply unwilling to leave their safety in the hands of politicians, bureaucrats and judges.