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Former ATF Gun Expert Pushing Back at Old Employer, 1968 Gun Control Act

By: José Niño

A former agent for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Dan O’Kelly, finds himself in tricky situation: For 23 years, O’Kelly was one of the agency’s leading gun experts. He was the lead firearms technology instructor at the ATF National Academy for five years and co-authored the curriculum for incoming ATF agents.

Now, the Albany Herald notes that O’Kelly is using his firearms know-how and the institutional knowledge he gained during his time in the ATF to potentially bring down his former employer. The legal dispute O’Kelly finds himself in has the potential to hack away at the 1968 Gun Control Act (GCA) and "seriously undermine the ATF's ability to trace and regulate firearms nationwide."

Under the GCA, the federal government regulates the interstate commerce of firearms within the United States. The GCA bars firearms commerce across states lines, with the only exceptions being those conducted between licensed dealers, importers, and manufacturers. GCA regulation only focuses on a single part of the weapon. Gun manufacturers are required to stamp the part with a serial number so it can be traced.

In 1993, a provision was included that required licensed firearms dealers to carry out criminal background checks on prospective buyers of the parts. Similarly, potential buyers of a fully intact firearm are subject to the same regulations. According to the GCA, the part in question is "the frame or receiver.” Put simply, it’s the body of a firearm in the area encompassing the trigger.

Another federal regulation provided a more detailed definition of what constitutes a receiver:

"That 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."

O’Kelly has noted a major flaw with this definition; he says that approximately 60 percent of guns in America do not have a single part that fits the federal government’s definition. For example, the AR-15 has one upper and lower receiver — a split receiver, if you will. Neither of these parts satisfy the requirements.

In O’Kelly’s view, the ATF has deliberately misinterpreted a critical gun control regulation for decades. He argues that if the ATF were truly to follow that law to the letter, Americans would be allowed to build AR-15s and other firearms with unregulated parts. O’Kelly expressed his concerns with this policy to an ATF official two decade ago. His grievances were ultimately ignored. His views about this flaw in the 1968 GCA are starting to gain momentum across the country now though, thanks to his legal work in recent years.

In 2018, federal prosecutors in Ohio brought charges forward against two men, Richard Rowold and Steven Robison, for engaging in a conspiracy to illegally purchase more than four dozen AR-15 lower receivers. Rowold is a convicted felon and was charged for the illegal possession of the devices. Robison was charged for buying these parts on Rowold's behalf. Interestingly, Robison also has a criminal record that should have barred him from completing this purchase. The men’s legal counsel contended that their cases be dismissed because the lower receivers are not firearms, thus regulations or laws do not apply to them. This runs counter to the ATF’s claims.

U.S. District Court Judge James G. Carr of the Northern District of Ohio requested an evidentiary hearing in September 2019. The primary focus in this case was whether lower receivers are classified as firearms per the 1968 Gun Control Act and similar federal regulations. O'Kelly took the stand as an expert witness on the defense’s side. He argued that lower receivers are not subject to ATF regulation. In his view, the agency has taken the opposite opinion for decades.

Carr eventually threw out weapons-related charges against the two men following O’Kelly’s testimony. The judge argued that the ATF’s traditional interpretation "plainly erroneous and inconsistent with the regulation."

Some observers fear that this ruling could open the door for the creation of so-called “ghost guns” – homemade weapons built from individual parts with no serial numbers present. Adam Winkler, a constitutional law professor at UCLA and Second Amendment expert, believes that this ruling revealed "another major loophole in federal gun laws" and is of the opinion that it will lead to even more “ghost guns” being built if this loophole isn’t closed.

"This ruling will speed the way toward more and more unregulated firearms," Winkler said to CNN.

For pro-Second Amendment advocates, this represents a solid victory. Thanks to technology such as 3D printing, law-abiding individuals will now have increased access to firearms and parts. This will allow countless gun owners more options, in spite of the 80-plus years of regulation coming from the federal government.

Naturally, we should expect anti-gunners to pressure blue legislatures and petition leftist judges to put the clamps on ghost guns. With a nominally conservative judiciary, however, gun owners could score some decent wins and slowly undermine bits and pieces of certain gun control laws, such as the 1968 GCA.

For once, gun owners can celebrate some good news.

José Niño is a Venezuelan-American political activist writing from Texas. Contact him at jnino584@gmail.com.

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