James V. Selna, a federal district court judge in California, recently acquitted Joseph Roh on the charge of manufacturing a “firearm” in the form of AR15 receivers because an ATF classification of them as firearms was not in compliance with rulemaking procedures under the Administrative Procedure Act. The news caused much excitement in the gun world, with a lot of focus on the incongruence between the ATF classification and the definition of a “frame or receiver” in 27 CFR § 478.11.
That rule defines a receiver, in the context of being a firearm, as a “housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.” Because an AR15 lower receiver does not serve as a housing for the breechblock and is not threaded at its forward portion, the judge held that an AR15 lower receiver is not a “receiver” under § 478.11. Here is an example where fine differences matter in writing statutes. If the “and” before “firing mechanism” was switched out for an “or,” the AR-15 lower receiver could reasonably be called a firearm – then again, so could the upper receiver. As Judge Selna summed it up, “No reasonable person would understand that a part constitutes a receiver where it lacks the components specified in the regulation.”
This is important, of course, for the accused. Because of this ruling, the case against him effectively came to nothing after ATF cut him a deal on the remaining charge. I’ve read that this is because ATF did not want the judge’s “there is no definition of an AR-15 receiver” ruling to be used as a defense in other cases. That’s half true – but the impact is wider.
In 2016, Judge James Donato, a judge in the Northern District of California, had already found an identical rule defining AR receivers as firearms, § 479.11, vague as applied to the defendant in that case. The individual was acquitted on the related charge. “As applied” means that the circumstances of the case indicate that the regulation or statute should not apply to the individual in question, while a “facial” challenge means that the statute or regulation is entirely unconstitutional and shouldn’t apply to anybody. The distinction lies mostly in how far the judge wants to go in saying the law is flawed. Judge Donato held back from saying § 479.11 was unconstitutional because it really isn’t – the judge just said that as applied to the defendant, it was too vague for him to know that he was breaking that law/regulation. The judge also said that the circumstances of another case might allow ATF to get a conviction if there was adequate notice.
ATF Hasn’t Been Following the Rules
Judge Selna went farther. He said that ATF’s methods for making classifications was just plain wrong, and that’s why the biggest impact from the Roh case will be felt by the ATF. In fact, ATF effectively had its “classification” process skewered and roasted over the open flame of justice. Perhaps that is a bit of an exaggeration at this stage, but the ruling is most certainly a big shot across their bow.
You see, agencies subject to the Administrative Procedure Act, of which the ATF is one, must follow the APA when it promulgates a rule. The APA is, in fact, how the definitions in 27 CFR § 478.11 came about. In simple terms, a law with a “USC” in it is a statute passed by Congress, while stuff with a “CFR” in it is an administrative regulation or rule created by a government agency.
In creating these rules and regulations and making other decisions, agencies like ATF have to follow certain APA procedures depending on whether the rule is formal or informal and whether it’s a form of rulemaking or an adjudicatory procedure. Nowadays, we are most familiar with a process called “notice-and-comment” rulemaking which falls into the informal rulemaking category. At the time the 1968 GCA act was passed, formal rulemaking was the preferred method, and it often took years to hold hearings, present evidence, and so on before a final rule was set in stone. In the 1970s, though, several Supreme Court cases steered administrative law away from formal rulemaking and opened up the floodgates of informal rulemaking.
Those of us in the gun sphere saw notice-and-comment rulemaking recently with the rule change regarding bumpfire stocks. There is a procedure which must be followed: it includes giving notice of the proposed rule change to the public, soliciting comments from interested parties, and responding to those comments. Nearly every rulemaking process appears more formal than the way ATF normally makes determinations – because they are, and Judge Selna excoriated ATF for it. He wrote:
“It is clear that the ATF’s classification of articles as firearm(s) does not comply with the rule making process which brought into effect the public definition for firearm found in Section 478.11. The rule making process under Administrative Procedures Act, 5 USC. § 551, requires promulgation of a rule and eventual publication of the rule in the Federal Register. 5 USC. § 552(a).”
Elsewhere, he pointed out that “criminal liability cannot be imposed where the agency has failed to comply with APA’s procedures, and therefore had not given fair notice.”
The impact of this? Judge Selna said that even the ATF classification letters addressed to Roh did not adequately constitute notice that he was in violation of the regulation. Even less notice, I presume, could be attached to classification letters addressed to other people and subsequently used in a potential prosecution against a third party.
But What Does This Mean For AR15 Receivers?
Does ATF need to go through the notice-and-comment process to define AR15 lower receivers as firearms? Let me explain.
Think about those “Firearm Ruling” letters from the director of the ATF regarding the interpretation of US Code, like this one about what constitutes manufacturing a firearm. While that ruling is directly relevant to Roh, it is different than the classifications at issue in his case, which are basically a lower-level bureaucrat’s interpretation of a regulation. You see, when an agency’s director or leader puts out an interpretation of a statute (a law passed by Congress – something with a USC in the title), the courts might afford them a fair bit of deference under a Supreme Court ruling popularly referred to as Chevron.
The test for deference is known, unsurprisingly, as Chevron deference, and it’s a pretty complicated test requiring a look at the intent of Congress. Even so, an agency head’s interpretation of an ambiguous statute, depending on how the court looks at it, requires a consideration of whether the interpretation is arbitrary and capricious, or if the court looks at it differently, whether the interpretation is reasonable. It’s not worth diving into the details here – just know that the deference is pretty broad, but there are some important requirements before it can apply.
When an agency interprets one of its own regulations, however, it is afforded less deference under a case named Auer (or a similar case called Seminole Rock). Why? Because the courts (should) give greater weight to statutes passed by Congress than to regulations promulgated by an executive branch agency. Why is that? Because the power to create laws and interpret laws shouldn’t rest in the same hands, at least not according to the late Justice Scalia. Less deference is afforded a determination that comes from some official who isn’t the head decisionmaker of the agency – take this pistol brace letter, for example. Or this other pistol brace letter.
Even under Auer deference, which can result in courts giving way to an executive agency’s interpretation of a regulation, the regulation must still be “ambiguous.” And let’s face it – that definition of a receiver is anything but ambiguous. It gives hard and fast rules for what must be inside a receiver. The ATF classification, however, completely ignored the definition in the regulation and said that something with only some of the required elements still met the definition. That is not, by any judicial standard, “reasonable.”
So, to answer my question about defining ARs as receivers – yes, as I see it, ATF should go through the APA, most likely through the §553 notice-and-comment process, to amend the definition of a “receiver” in 27 CFR §§ 478.11 and 479.11. I think the substitution of “or” for “and” would be minimally adequate, but they will likely make further changes to ensure they don’t run into this problem again. Is this a big deal with respect to the AR15? Can you buy from a dealer (or, as a dealer, sell) finished AR receivers right now without a background check? I would not do that.
ATF Must Change the Way It Does Business
Beyond AR lower receivers, Judge Selna’s ruling is a huge flashing red light, warning ATF that some judges aren’t going to accept their classifications based on regulations as adequate notice, even when they’re addressed to the individual being pursued for enforcement. You should take note that his ruling is not binding even upon himself, let alone any other judge in his circuit or across the country and that other judges might see differently. However, his reasoning appears very sound.
I’m a little surprised that they didn’t go through notice-and-comment to fix §§ 478.11 and 479.11 after Jiminez, but I would guess that’s because they thought doing so might jeopardize the Roh case. In any event, ATF should take notice that the way it has been conducting business for decades appears legally insufficient to sustain a conviction on this point.