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PARTS IS PARTS

I waste a lot of brain space recalling TV ads. Wendy’s had one in the 1980s belittling places that sold processed chicken. “Parts is parts,” the bored counterman told the skeptical customer.

That tagline rings true with a vengeance for firearms. A conviction under 18 USC § 922 requires proof that the firearm in question must have traveled in interstate commerce. Congress had to include the provision in order to be able to pass enforceable legislation. Yet the interstate commerce requirement can lead to some strange results.

If you’re a convicted felon, you can legally own a Smith and Wesson revolver. Just live in Massachusetts. Want a TEC-9, maybe for duck hunting? Move to Miami. If you live in the same state in which the firearm was made and sold, possession is not prohibited by 18 USC 922(g).

Cautionary note: Just don’t ever buy any ammo. That’s a different story.

Not so with the gun itself. The statute (18 USC 921(a)(3)) defines a “firearm” as “(A) any weapon… which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; [or] (B) the frame or receiver of any such weapon.” The frame or receiver is defined by regulation as the “part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.” 27 CFR 478.11. Which brings us to the strange world of the AR-15.

One of the worst kept secrets in America is that anyone with a drill press or router and a few hundred bucks in parts can build an AR-15 lower receiver at home in a few hours. The chunk of aluminum or plastic that gets milled into a lower receiver can be bought online, and because it’s only 80% complete, it is not a firearm under the law (for now, but new rules are coming). Once the home hobbyist completes the lower receiver and mates it with an upper receiver (many versions of which are available online and which in and of themselves are not defined as “firearms” either), he has a completed firearm. Because the part the ATF considers to be the “firearm” – the lower receiver – was just a block of metal when it crossed state lines, no firearm had crossed state lines, and a former felon who possessed one is not violating § 922(g).

By a weird twist, the ATF defines the frame or receiver of a firearm to include trigger parts, the bolt, and possibly the threads for mounting the barrel. This definition makes great sense for a revolver, semi-automatic pistol, and most rifles. But the AR-15 has two separate parts, a lower receiver that has the trigger parts and magazine well, and an upper receiver holding the bolt, bolt carrier, and barrel threads. At least one federal district court has thrown out a felon-in-possession case where the defendant had a box full of AR-15 lower receivers, holding that – no matter what the ATF tried to argue in court – its own definition held that an AR-15 lower receiver is not a firearm.

(Yet another cautionary note: President Biden has ordered the ATF to redefine various other parts of the guns as firearms that require serial numbers, so this loophole may be closing. But millions of AR-15 upper receivers, barrels, magazines, and the such without serial number will remain in circulation.)

Which brings us to a decision last week in the 8th Circuit. Luke Burning Breast had a prior felony conviction. After local police confiscated an AR-15 style rifle from him, the Feds brought an 18 USC 922(g) felon-in-possession case against him.

Luke argued that the lower receiver was not a firearm under the ATF’s own definition. While there was no question the lower – which had a serial number – had been made in another state, Luke argued that only the lower and upper receivers together make a firearm, and because the government did not prove the upper receiver traveled in interstate commerce, the evidence was insufficient to convict him of being a felon in possession of a firearm.

Last week, the 8th Circuit shot Luke down in a 2-1 decision remarkable for its circular reasoning. The majority argued that the ATF’s definition of a frame or receiver is only one way to define a firearm. “Another way is if the weapon will, is designed to, or may readily be converted to expel a projectile by the action of an explosive. Notwithstanding the lack of evidence establishing the upper receiver had, in fact, been swapped out, there was no evidence that at any point the firearm was anything but a weapon that could, or was designed to, or may readily be converted to expel a projectile by the action of an explosive. Here, it is immaterial whether there was proof that the upper receiver traveled in interstate commerce when the evidence established a completed rifle capable of being shot traveled in interstate commerce prior to Burning Breast’s possession of it.”

In other words, because the lower receiver was once part of an entire AR-15 that traveled in interstate commerce, the jury could infer that it had always been a firearm.

The dissent observed, “I grant that Burning Breast possessed a functional rifle. But it is not so clear that a jury could reasonably infer that it traveled in interstate commerce. In order for an inference to be reasonable, there must be some evidence to support it. But there is no evidence that anything other than the lower receiver moved in interstate commerce. The ATF agent admitted as much.”

The decision is interesting for what it implies. Had Luke made his own lower receiver – without a serial number – the government would have been unable to prove the firearm had ever crossed state lines, and Luke could not have been convicted.

United States v. Burning Breast, Case No 20-1450, 2021 U.S.App. LEXIS 23778 (8th Cir., August 11, 2021)

– Thomas L. Root