14 Apr 2020

Recent Federal Prosecutions Threaten to Expose Years-long Misapplication of Law by ATF

by JurisMagazine

By Matthew Naum, Staff Writer

Beginning in 2014, a string of attempted federal prosecutions has left the Department of Justice’s gun control efforts in jeopardy. Since the passage of the Gun Control Act of 1968, the United States government has deemed a single component of all firearms in this country subject to regulation: the frame or receiver of the firearm. [1] The frame or receiver is defined as the part of a firearm that contains “the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward position to receive the barrel.” [2] Thus, since 1968, the part of the gun that houses the trigger is legally deemed a “firearm” in the United States and subject to the same regulations as a fully intact weapon. [3] In part, this definition of a firearm was intended to keep felons and others prohibited from firearms ownership from building a fully functioning firearm piece by piece. [4] However, according to a former agent at the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), the ATF has been deliberately misinterpreting this definition for decades to prosecute individuals for possessing or selling receivers for AR-15 rifles and other firearms.< [5]

Dan O’Kelly spent 23 years with the ATF as the Lead Instructor of Firearm Technology and co-wrote the curriculum for incoming agents. [6] [7] Since O’Kelly left the ATF eight years ago, he has testified for the defense in several federal prosecutions and investigations and stated that roughly 60% of guns in the United States do not have a single part falling under the definition in the US code. [8] The issue is that the AR-15, which was designed by Eugene Stoner in 1959, has a receiver that is split into upper and lower parts, and therefore does not neatly fit the definition set forth in US code. [9] O’Kelly’s first worked on a case involving this definition in 2014, where the owner of a California-based company had roughly 6,000 parts taken by the ATF that were deemed “receivers” because they lacked the requisite license to sell firearms. [10] The owner was ultimately never charged with a crime and his lawsuit to have his property returned was successful with the help of a declaration of support submitted by O’Kelly. [11] O’Kelly assisted in another case in 2016, in which a convicted felon was arrested for purchasing an AR-15 lower receiver. [12] With the help of O’Kelly, the indictment was dismissed under the theory that the defendant possessed a firearm or receiver under the relevant statutory and regulatory framework.< [13]

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