U.S.A. –-(AmmoLand.com)- On September 29th, of 2020, The Giffords Law Center and the State of California, sued the BATFE, demanding they change their regulations and outlaw “80% receivers”. Essentially, they were demanding the ATF change the law to outlaw homemade guns.
The threat to use regulation to change long-standing U.S. gun law makes the lawsuit’s deceit about “may readily be converted to expel a projectile by the action of an explosive” of current interest.
Part one of the analysis dealt with the predicates of the lawsuit, filed against the BATFE by the State of California and others, in the first paragraph. The first paragraph is based on false assumptions.
Part 2 dealt with the false premises of the second paragraph. Part 2 shows the premise that unregistered and unserialized guns are significant risks to the community are false. Registration and serialization are ineffective in reducing violent crime.
Part 3, in this essay, deals with the misapplication of the term “may readily be converted” in the lawsuit.
The phrase “may readily be converted” in Title 18 USC 921 does not apply to frames or receivers. From §921. Definitions in house.gov:
(3) The term “firearm” means (A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.
The phrase “may readily be converted” only applies to (A). Only to weapons which are designed to do one thing, but which “may readily be converted to expel a projectile by action of an explosive”. Bold added for emphasis.
- It explicitly does not apply to (B) the frame or receiver of any such weapon.
- It explicitly does not apply to (C) any firearm muffler or firearm silencer.
- It explicitly does not apply to (D) any destructive device.
Frames or receivers, firearm mufflers, and destructive devices are all treated separately from “any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive”.
A frame or receiver of such a weapon may be considered a firearm, but it is not the weapon itself.
The lawsuit explicitly mischaracterizes the law. Here is paragraph 5. from the lawsuit:
The receiver or frame is the central piece of any firearm—so central, in fact, that the a “frame or receiver” is a “firearm” for purposes of the GCA’s regulatory regime. 18 U.S.C. § 921(a)(3). The GCA also provides that “firearms” include, not only fully functional weapons, but also receivers and frames of such weapons that are “designed to or may readily be converted” into functional weapons.
No, the law does not say that.
A complete frame or receiver for a firearm is considered a “firearm” under 18 U.S.C. It is not a “weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive.”
If it were, there would be no need for separate parts (A) (B) (C), and (D).
Paragraph 5. from the lawsuit deliberately conflates two different and separate parts of the law, to deceive the court and the public.
The definition of frame or receiver has nothing to do with “may readily be converted to expel a projectile by the action of an explosive”. The definition is about an object which is created from materials to be a frame or a receiver.
It is not being converted from a finished object with one purpose into another finished object with another purpose. It is being made, a different thing. Not a conversion. Creation.
Interestingly, when Title 18 USC 921 later defines short-barreled shotguns and rifles, the law does not use the term “converted”. It uses the phrases:
any weapon made from a shotgun (whether by alteration, modification or otherwise)
any weapon made from a rifle (whether by alteration, modification, or otherwise)
The term “readily converted” implies less difficulty than making something.
A reasonable interpretation is that “readily converted” is something that takes less effort and tools than cutting off a barrel and stock.
As the industry and gun culture has adapted to the regulation, those who are phobic about firearms now claim the ATF must change its regulations, because people are following the regulations.
This is tyranny. It is not law. The entire GCA68 scheme has been ineffective in reducing violent crime. The scheme should be scrapped. At a minimum, the regulations relied on for many years, should not be made more burdensome without due process of law.
The lawsuit claims, in effect, that freedom threatens public safety. Here is an example of the exaggerated claim of danger in the lawsuit. From apnews.com:
The weapons now make up 30% of guns recovered in California, said Hannah Shearer, litigation director at the Giffords Law Center that also is a party in the lawsuit.
California is now home to 18 of the 80 known online ghost gun retailers, double the number from six years ago and the most of any state, according to the lawsuit.
“The only logical intended result of a ghost gun kit is that it will become a firearm,” Becerra said. “They are fast becoming the weapons of choice for illegal gun traffickers, for organized criminal gangs, and unfortunately for mass murderers as well.”
Originally from the Trace, the 30% figure is taken completely out of context.
Spokespeople for ATF field divisions in Los Angeles and Sacramento said that approximately 30 percent of all recoveries made by agents are unserialized weapons. The ATF declined The Trace’s request to provide a number of weapons recovered, but did say that ghost guns have become a high priority in criminal investigations.
Unserialized weapons would include weapons whose serial numbers have been removed, as well as any of the millions of weapons that were legally made before serial numbers were required.
The vast majority of guns confiscated by authorities are confiscated by local and state police, not by ATF agents. ATF agents would typically focus on guns without serial numbers. Thus, the 30% figure is extremely limited and specialized. From San Diego Police Criminalist Rebick:
Rebick said the total number of ghost guns seized in crimes remains relatively small compared to the number of traditionally-manufactured guns that police confiscate each year. But, Rebick added that some of the ghost guns she’s seen are poorly made, making them more prone to misfiring and much more dangerous than a legitimate firearm.
Presumably, Ms. Redick was saying the “ghost guns” were more dangerous to the user than factory-made guns. There are only a few polities where homemade firearms are considered “illegitimate”. California is one of them, and the legislation to make them “illegitimate” is both controversial and recent.
The use of a few cases to push ignoble legislation has long and disreputable roots. It makes for very bad laws. Courts should ignore such histrionics. Nor is it surprising more cases involving homemade or craft guns appear in states which devote more resources to infringing on Second Amendment rights.
In this case, the plaintiffs are attempting to use the courts to change longstanding legislation which was interpreted by a regulatory agency over a decade ago.
They attempt to make a judge into a super-legislator because they have not been able to pass a law.
It is already illegal for criminals to possess firearms. The idea that criminals can be prevented from obtaining firearms by regulating the access to firearms by the majority of people, is false. Brazil, for example, has a small fraction of the legal firearms the United States does but has a murder rate (with firearms) 7 times as great at the United States.
The idea has just enough surface credibility for it to be used as a propaganda device.
In actual use, it does not work. It drives the manufacture of firearms into the black market.
The way to prevent criminals from using firearms in crime, while respecting the Constitution, is to aggressively prosecute violent criminals who break the law, while working to increase trust in the police. The approach has worked, repeatedly.
Respecting the Constitution and the Second Amendment enhances respect for the rule of law.
Having large numbers of unregistered and untraceable firearms in the United States is a public good, not a public danger.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.