larryh1108
Member
Does this "ruling" or "non-ruling" open any doors for anyone previously convicted for selling frames or receivers in the past? Can this be a crack in Pandora's Box?
Does this "ruling" or "non-ruling" open any doors for anyone previously convicted for selling frames or receivers in the past? Can this be a crack in Pandora's Box?
You'd think they would have re-defined what constitutes a receiver after the first legal defense that challenged it, (Roh was not the first) but to do so at this point might become even more confusing, particularly if it were to be applied retroactively. Almost every semi-auto pistol, all AR's FAL's, Benelli Montefeltros,( BE, SBE, etc.) would have to be serial numbered on several parts.
You'd think they would have re-defined what constitutes a receiver after the first legal defense that challenged it, (Roh was not the first)
The Government's effort to find clear notice and standards outside the statutes and CFR is unpersuasive. It insists that the " ‘receiver’ of an AR-15/M-16-style firearm is and always has been the lower portion" like the one Jimenez acquired. Dkt. No. 13 at 1; see also id. at 11 ("Since the passage of the [Gun Control Act] of 1968, federal law has regulated the lower portion of the AR-15/M-16 as the ‘receiver’ of the firearm."). That might be the case, but the salient question is how a person—and specifically Jimenez—contemplating the purchase of an AR-15 lower receiver would have known about this interpretation or that ATF would treat buying one as a crime. The Government has little to offer in answer.For the purported notice, the Government relies on two obscure bureaucratic communications from the early 1970s. One is a memorandum on Internal Revenue Service letterhead dated March 2, 1971, from "J. R. Wachter" to "J. F. McCarren." Dkt. No. 13 at Ex. 4. This one-page document appears to be an inter-agency discussion of how the split receiver of the M-16, the military version of the AR-15, should be taxed. The document is striking for several reasons, all of which run counter to the Government's argument. It addresses a federal tax issue and not a federal criminal gun law. It gives lukewarm endorsement at best to treating a lower receiver as the operative portion. The letter says the M-16 receiver "apparently" has two portions and that the lower portion "comes closest to meeting the definition of frame or receiver" in the CFR but the author could "see some difficulty in trying to make cases against persons possessing only the lower part of a receiver." Id. And the Government provides no facts showing that the memo ever saw the light of day outside a tiny circle of government employees. How this document could have provided fair and adequate notice to anyone, let alone Jimenez, is left unsaid.
The Government's other document is even less impressive. This one is a January 19, 1972 letter from an ATF director to a gun seller in California. Dkt. No 13 at Ex. 4. This very short two-paragraph letter says "in reply to your letter" that ATF "has determined for the purposes of marking and control, the lower receiver ... is the receiver" for the AR-15. No citation to the United States Code, the CFR or any other publicly available document is provided. And once again, nothing indicates that anyone other than the author and recipient ever saw or knew about this letter or the ATF's purported enforcement determination. There is certainly no indication that Jimenez or anyone in his circumstances would ever have known about this document.
Most -- perhaps all -- of ATF's classifications are either Private Rulings or Published Rulings, and not Regulations. Unlike Regulations, Rulings (either Private or Published) are not subject to a requirement for a Notice of Proposed Rulemaking, or a public comment period.I think the APA-noncompliance argument (not this particular case, but the line of argument) has the potential to open up all of BATFE's classifications where they did not publish a Notice of Rulemaking, or get public comment to challenge.
It can, by Regulation. The underlying law just uses the word "receiver" and then leaves it up to the administering agency (the ATF) to determine what that word means. The problem here is that ATF's initial definition was technically inadequate. Then the ATF just let it slide as problems arose.I don't think the ATF can redefine receiver.
That the BATFE has handled things like this has bothered me for years. I've often wondered why nobody has FOI'd all of the various classifications to see if there's a ripe challenge. Maybe other agencies are just as bad, but BATFE rulings seem particularly arbitrary and capricious (though I'll admit that I haven't reviewed a ton of other agencies' rulings).Most -- perhaps all -- of ATF's classifications are either Private Rulings or Published Rulings, and not Regulations. Unlike Regulations, Rulings (either Private or Published) are not subject to a requirement for a Notice of Proposed Rulemaking, or a public comment period.
The problem here appears to be that it did define "receiver," but didn't want to abide by its own definition. It then used that interpretation to bring felony charges, without bothering to amend its own rule.It can, by Regulation. The underlying law just uses the word "receiver" and then leaves it up to the administering agency (the ATF) to determine what that word means. The problem here is that ATF's initial definition was technically inadequate. Then the ATF just let it slide as problems arose.I don't think the ATF can redefine receiver.
I'm just another ignoramus on the internet, but, doesn't that have 7th Amendment implications? If in a backwards way? That, a change in interpretation such as that is fundamentally the same as overturning a jury's assertion of fact? In that, a jury cannot, in fact, make a ruling if the definitions are not consistent?The problem here appears to be that it did define "receiver," but didn't want to abide by its own definition. It then used that interpretation to bring felony charges, without bothering to amend its own rule.
The 7th Amendment guarantees the right of trial by jury in federal civil cases. What we have here is a criminal case. Anyway, a jury trial was waived by the defendant.I'm just another ignoramus on the internet, but, doesn't that have 7th Amendment implications? If in a backwards way? That, a change in interpretation such as that is fundamentally the same as overturning a jury's assertion of fact? In that, a jury cannot, in fact, make a ruling if the definitions are not consistent?
Ignorance is curable. I can live with that.I'm just another ignoramus on the internet, but,....
See AlexanderA's response. I will add that this line of reasoning, if followed, could impact federal criminal cases going forward..... doesn't that have 7th Amendment implications? If in a backwards way? That, a change in interpretation such as that is fundamentally the same as overturning a jury's assertion of fact? In that, a jury cannot, in fact, make a ruling if the definitions are not consistent?
But, I fear I'm applying logic, rather than the letter of the law.
Don't read too much into this. The Roh case is just a straw in the wind. The judge's opinion was tentative, and anyway it was made moot by the parties' settlement. You can bet that the ATF will soon be proposing a revised Regulation to clear up the ambiguity.If AR-15's don't have a receiver, according to the legal definition of what a receiver is, were the government to ban AR-15's, what would be banned, and what would be accessories?
If the judge's tentative opinion was nothing more than a straw in the wind, the case wouldn't have been settled, and the ATF wouldn't be revising Regulations.Don't read too much into this. The Roh case is just a straw in the wind. The judge's opinion was tentative, and anyway it was made moot by the parties' settlement. You can bet that the ATF will soon be proposing a revised Regulation to clear up the ambiguity.
Now, see, I was remembering that the 7th, while specifically about jury trials for civil cases, also involved the principal that the courts could not change a jury's finding of fact by changing the definitions of the facts.Ignorance is curable
It's always been a puzzle to me why, in some designs (for example, the FAL, H&K, TSMG, Ruger Mark pistol), the upper receiver is the firearm, while in others (the AR-15, the M1911 pistol), the lower is. This has been totally arbitrary on ATF's part, and now, it seems, it's coming back to haunt them. You can bet that the ATF legal eagles will be burning the midnight oil to revise the Regulations to at least rationalize the discrepancies.