California Gun Parts Dealer, Patriot Armory, Sued by New Jersey AG, for Legal Sale

New Jersey has a reputation as one of the states most hostile to the Second Amendment. The reputation was upheld on Friday, 22 March, 2019, when anti-Second Amendment Attorney General Gurbir Grewal announced a lawsuit against a gun parts dealer based in California, U.S. Patriot Armory.  The parts dealer sold a kit to manufacture a gun at home to a New Jersey undercover investigator.  From nj.com:

State authorities say they’ve filed a first-of-its-kind lawsuit against a gun retailer accused of selling a kit to assemble an AR-15 rifle to an undercover investigator in New Jersey months after the Garden State banned “ghost guns."

A complaint filed in state Superior Court in Essex County on Friday accuses a California gun dealer, U.S. Patriot Armory, of ignoring a cease-and-desist letter sent by the state attorney general in December, weeks after Gov. Phil Murphy signed a new law making it a third-degree crime to purchase firearm parts with the purpose of assembling a gun without a serial number.

U.S. Patriot Armory does not seem to have violated any law. It has always been legal to sell gun parts in the United States and to ship them through the mail. It has always been legal to manufacture your own gun in the United States. In the famous Heller decision, Justice Scalia mentioned that it might be Constitutional to regulate commercial sales of guns. Implied is that it would not be Constitutional to regulate private sales or the manufacture of guns by individuals for their own use.  From District of Columbia v. Heller:

The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

Since Heller, we have found the above compromise language was inserted into the decision at the insistence of Justice Kennedy, as reported by former Justice Stevens:

The effort failed. But Justice Stevens wrote that he helped persuade Justice Anthony M. Kennedy, who was in the majority, to ask for “some important changes” to Justice Scalia’s opinion. A passage in the opinion, which Justice Scalia had plainly added to secure a fifth vote, said the decision “should not be taken to cast doubt” on many kinds of gun control laws.

Major changes in gun law in the United States occurred in the Gun Control Act of 1968, when the Congress turned the purpose of the Commerce Clause on its head, and used it to  allow states to  prevent commerce between the States instead of preventing the States from taxing or preventing commerce.  The 1968 law made it illegal for federal dealers to sell guns to people from another state; and for individuals to send guns through the mail across state lines, unless it was to a dealer.

In this case, the State is attempting to have their cake and eat it as well. They claim the kits are essentially guns; and they can claim they are not violating Second Amendment rights because they are not stopping the sale or transfer of guns.  Crucial to the case is the definition of "what is a gun?", or more precisely, what is a legal firearm?

In the United States, the BATFE had to answer the question as part of the administration of the 1968 GCA. Clearly, a barrel is not a firearm. Clearly, a trigger is not a firearm. The BATFE concluded the part that other parts were assembled on would be legally considered the firearm. That part is called the receiver. Parts that are not receivers are not firearms under the law.

The definition begs the question: What is a receiver?.  Is a piece of metal a receiver? A piece of pipe? Is a can of epoxy a receiver? While these items can all be made into receivers, they are not receivers. The BATFE ruled that a receiver had to be more than 80% complete to be defined as a receiver under the law. A person who was willing to make their own receiver, or to complete one that was partially machined, could make their own firearm, which has always been legal under American law and the Second Amendment.

New Jersey is one of only six states that does not have a clause in the  state Constitution protecting the right to keep and bear arms in some way.

New Jersey AG Girbir Grewal is already being sued for violation of the First Amendment in an attempt to censor the publishing of instructions, online, on how to make guns. 
The State of New Jersey has deep pockets. The lawsuit was filed in a New Jersey Superior Court. This is extending a trend where governments use the civil court system to create prohibitions they desire against actions that are not against the law. It is a very dangerous precedent. The state has deep pockets. They can bankrupt individuals with lawsuits, even though an individual has not violated any law.  San Francisco City Attorney Dennis Herrera has been using this tactic against companies selling repair kits for gun magazines.

A possible counter-move to the lawsuit against U.S. Patriot Armory would be to sue the New Jersey AG for violation of rights under color of law, on the grounds that sale of gun parts are protected under the Second Amendment.

Many countries around the world prohibit their subjects from generally being armed. As part of those prohibitions, the subjects are prohibited from manufacturing their own firearms, and are prohibited from buying gun parts.  The definition of what is a firearm is often carried to extremes. In one Australian state, the instructions on how to make a gun are considered the same as the gun itself. In another, plastic replicas that look like a gun are considered the same as a real gun.

The United States is indeed different than the rest of the world. Prior restraint of publication is generally prohibited under the First Amendment. When Progressives controlled nearly all media, they argued that instructions on how to make atomic bombs was protected speech.  The ability to own and carry guns is protected under the Second Amendment. Both First and Second Amendments are under assault by those who wish a disarmed population.

©2019 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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