Today, in a press release entitled ” AG Shapiro, Gov. Wolf: 80% Receivers Are Firearms” Pennsylvania Attorney General issued an opinion letter regarding, putatively whether 80% lowers (which have no legal definition or meaning) are firearms for purposes of some, but not all, provisions of the Pennsylvania Uniform Firearms Act (“UFA”).
While acknowledging that “there is no controlling caselaw providing a definition or standard for applying the phrase ‘may readily be converted'” nor a definition for “designed,” in direct violation of Article 2, Section 1 (non-delegation provision), the preemption provided for by Article 1, Sections 21 and 25, and the rule of lenity, Attorney General Shapiro concludes that “a receiver is a ‘firearm’ if it can be converted to expel a projectile by [sic] individual with reasonable skill (expertise), basic tools (equipment) available to and understood by such an individual, and commonly available parts (availability) in a reasonable amount of time (time).” Thus, apparently under AG Shapiro’s opinion, a block of metal or plastic can now constitute a firearm. In fact, he goes on to hold:
A receiver does not need to be fully manufactured to be a firearm as defined in the Applicable Sections. A receiver if a firearm under the Applicable Sections it is is: 1) “designed” to expel or 2) “may readily be converted” to expel a projectile by the action of an explosive. Given the UFA does not provide a statutory definition of these terms, PSP shall utilize the legal framework set forth in this Opinion when enforcing or issuing interpretative guidance regarding the Applicable Sections of the UFA. Along with direct enforcement of the UFA< PSP has the ability to issue interpretative rules through internal documents, manuals, or policy statements; while not contorlling, these interpretations would be entitled to deference. Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Additionally, PSP can further interpret the definitions through formal rulemaking. 18 Pa. C.S. 6111.5 Any regulation properly promulgated by PSP is entitled to deference, unless clearly erroneous. Harkness v. UCBR, 591 Pa. 543.
What appears lost on AG Shapiro is the fact that only the General Assembly can write the law and that the General Assembly cannot delegate its authority, in the absence of providing a coherent framework that can be equally and consistently applied. W. Phila. Achievement Charter Elem. Sch. v. Sch. Dist. of Phila., 635 Pa. 127 (2016); Mary Ann Protz v. W.C.A.B. (Derry Area School District), 639 Pa. 645 (2017). Furthermore, when dealing with criminal statutes, or statutes having both criminal and civil applications, the rule of lenity requires that any ambiguity be resolved to the Defendant’s /Challenger’s benefit. United States v. Thompson/Ctr. Arms Co., 504 U.S. 505, 518 (1992).
Perhaps most interesting to some is the misleading title of the press release, as it suggests that AG Shapiro and Gov. Wolf conclude that “80% lowers are firearms”; yet, “80% lower” is not mentioned in the opinion. Of course, perhaps that’s the way AG. Shapiro and Gov. Wolf are directing the PSP to conclude 80% lowers are firearms, without specifically addressing it in the opinion. Only time will tell, but if the PSP does take a position that “80% lowers are firearms,” it will surely be challenged in the courts and the outcome is not likely to be favorable to the Commonwealth.
If you or someone you know has had their rights violated by this opinion or the PSP’s interpretation of the UFA as it relates to “firearms”, contact Firearms Industry Consulting Group today to discuss YOUR rights and legal options.
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