What Are 80% Lowers?
In the context of firearm manufacturing, an 80% lower refers to an unfinished or partially completed lower receiver that is not legally considered a firearm. The primary intention for an 80% lower is to serve as a starting point for individuals who wish to build their own firearms from scratch. Typically, the 80% lowers are sold as a blank slate, without any pre-drilled holes or machined sections which would require additional steps from the manufacturer before it becomes functionally operable .
The purpose of the 80% terminology is that it requires the manufacturer and seller at some point during the sales process to notify the purchaser that the lower receiver is not yet a firearm. This is important because all barrels and other "firearm accessories," are required to be shipped to your local FFL dealer for background checks, however, with the 80% lower, no background checks conducted through the FFL dealer are necessary.
Because of these benefits to gun enthusiasts building their own guns, 80% lowers have become an extremely popular option for home builders, repairmen and gun enthusiasts to consider.
Federal Government and 80% Lowers
The legality of 80% lowers is not limited to state laws. There are also Federal laws and regulations which impact their legality and as we mentioned above, these laws and regulations continue to develop and evolve. As a result, if you are interested in a particular state, you should ensure that you confirm the most recent laws and regulations which apply to the state and/or locality which you are interested in.
Federal law requires that all firearms be serialized, and all companies or manufacturers of firearms have to have a Federal Firearms License (FFL). 27 CFR § 478.121. Any company which sells only 80% Lower handguns or lowers which require machining to make a gun (like a lower which requires milling for the fire control group to function) are not required to serialize the firearm/recorder/frame can continue to sell these 80% lowers in any state if they don’t take further action to change the 80% lower into a firearm/frame/receiver. Therefore, it will be up to each individual person to decide how they want to interpret Federal law, its regulations and current policies.
The Bureau of Alcohol, Tobacco, Firearms and Explosive (the "ATF") has previously held that "for civilian firearms assembled from components not classified as firearms by the GCA [Gun Control Act], such as a match grade barrel, a target trigger, or other enhancing custom components, the mere use of such components does not make the assembly of these components into a firearm a firearm". ATF letter dated April 7, 2015, on file with the author. However, this position of the ATF is now being questioned based on the recent Final Rule published in the Federal Register on January 14, 2021. 86 FR 27729, 27729-33. One thing to note: Although the ATF previously stated that 80% low receiver, frame, or firearm is not a firearm and that they do not have the authority to regulate items that are not firearms, that statement has been limited to "products [that] have no holsterable shape or configuration of a firearm as that term is defined in 27 CFR comma 478.11" Other products that are commonly used in the firearm industry but do not currently operate as a firearm are regulated — like Glock switches.
It should also be noted that Federal regulations can not be the basis for finding that something is a crime. It is only a violation – civil, or criminal – of Federal law and regulations to the extent that Federal law and regulations do not include a mileage requirements. See Gonzales v. Raich, 545 U.S. 1, 26 (2005) (Scalia, J. concurring) ("Federal regulations are not a sufficient basis for a finding of criminal liability [if] . . . the regulations themselves create no legal obligation[;] . . . it is the federal offense defined by the statute, not the regulation, that is the predicate for any further prosecution."); see also Whitfield v. United States, 574 U.S. 208, 214 (2015) (noting that "a failure to comply with a regulation does not constitute a separate and distinct criminal offense," because "it is not ordinarily possible to violate a regulation without also violating a statute"). It is up to Congress to enumerate what actions constitute a permissible Federal action, and it is up to the courts and Congress to determine whether particular actions amount to a crime that can result in a conviction (which raises the burden from civil standards).
Firearm Law in Pennsylvania
Pennsylvania has long been known as a gun-friendly state. The right to bear arms is protected by the Pennsylvania State Constitution entitled Declaration of Rights, Article 1, Section 21 which states: "The right of the people to keep and bear arms shall not be questioned." In addition, Pennsylvania Firearms Act, 18 Pa.C.S. § 6101 et seq. (2007) is the Pennsylvania law regulating firearm possession and unlawful use.
Under the Pennsylvania Code § 6106, Pennsylvania residents are required to obtain a license before carrying a concealed firearm in a public place. However, they are not required to obtain a license or any other permission to own a firearm – only to carry one concealed in public.
Individuals are still prohibited from purchasing firearms or obtaining a concealed carry license if they fall into certain categories:
Federal law, 18 U.S.C. § 922(g), contains identical prohibitions on purchasing firearms or obtaining a concealed carry license as a prohibited person. But, unlike federal law, obtaining a concealed carry license in Pennsylvania is optional.
Many states have enacted laws that prevent local municipalities from passing ordinances contrary to state firearms laws. However, Pennsylvania has not passed any such law, leaving local municipalities free to implement firearms ordinances that may differ from the state laws. In fact, Pennsylvania has dozens of municipalities with ordinances restricting the type or manner of firearm ownership. For example, Philadelphia, Pittsburgh, and Conshohocken restrict firearm types and have safe storage requirements.
It should be noted that in Pennsylvania gun laws, the offenses are graded as misdemeanors or felonies, two types of criminal offenses. A misdemeanor is punishable by imprisonment in a county jail for a term up to five years, and/or a fine up to the maximum amount of $10,000. A felony is punishable by imprisonment in a state penitentiary; and the penalties for felonies increase depending upon the classification of the felony.
Pennsylvania classify criminal offenses into grades as follows:
There are three distinct felony classifications, including first-degree felonies which carry a maximum penalty of 20 years, second-degree felonies which carry a maximum penalty of 10 years, and third-degree felonies which carry a maximum penalty of 7 years.
Misdemeanor and felony offenses are further classified as violent or non-violent crimes. If an offense is classified as a violent crime in Pennsylvania, the sentencing penalties increase if a weapon was used in the crime or if the accused has prior convictions on his or her record.
These penalties are only the maximum allowed by law. In reality, those charged with many of the firearm-related offenses listed below are often sentenced less severely.
Below is a compilation of firearm related offenses in Pennsylvania:
* = Certain firearm related offenses may be graded higher in association with a separate criminal offense.
Are 80% Lowers Legal?
Unlike many states, Pennsylvania has not enacted a law that addresses firearms missing a serial number, which would include 80% lowers. Consequently, the law in Pennsylvania that pertains to firearms without serial numbers comes from federal statutes.
According to the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) website, the following are firearms that do not require serialization:
"Any pistol, revolver, or other firearm made by a skilled gunsmith for his personal use;
Any firearm manufactured prior to 1899;
Any firearm manufactured by a licensed manufacturer for his or her own personal use when done in compliance with State and local laws;
Any firearm manufactured at least 50 years prior to the current date and identified by make and model only;
Any firearm determined to be a collector’s item;
Any firearm manufactured by a licensed collector for his or her own personal use when done in compliance with State and local laws;
Any firearm manufactured by a licensed collector as a curio or relic if the collector has also registered as a manufacturer."
Pennsylvania law also makes it clear that without having a serial number on a firearm, the firearm cannot legally be owned in Pennsylvania. According to 18 Pa.C.S. § 6111.1, "No person shall knowingly possess, manufacture, sell or otherwise transfer a firearm which is not identified with a serial number as required by Federal law or regulations."
As you can see from the two legal definitions above, the lack of a firearm’s serial number is an issue of legality, not an issue of whether it is an 80% lower or ghost gun.
Building a Gun From an 80% Lower
When you buy a "completed" firearm, the machinist at the factory has completed all but three operations. Essentially, a manufacturer must produce firearms that meet guidelines from the Bureau of Alcohol, Tobacco, Firearms and Explosives (the BATFE). Likewise, individual builders can produce their own complete firearms, provided they meet the same requirements.
A "firearm" today is defined in 27 C.F.R. § 478.11 as "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." In order to be considered a "firearm," it must be able to expel at least one projectile, as opposed to an ancient weapon that cannot operate without an external power source, such as black powder. 80% lowers are not considered firearms for this reason.
When an individual wishes to build a firearm, her first step is to buy an "80% lower," which has basic, but incomplete, operations done to it (for example, milling out the fire control components on an AR-15); however, it is missing critical parts of the design that prevent it from firing.
In recent years, a number of companies have begun producing "80% lowers", which are semi-automatic rifle receivers that require certain final machining actions to transform them into "firearms" under federal law, and make them thereafter subject to federal licensing. Importantly, the 80% lower is not itself a firearm, but is the "blank" from which a weapon receiver is milled out. Federal law subjects manufacturers of receivers of modern sporting rifles to licensing as firearm manufacturers. 18 U.S.C. § 923.
In Pennsylvania, a resident can forge and machine a receiver, provided the individual does not sell the weapon and in order for the state to determine that the person is eligible to possess a firearm. 18 Pa.C.S. § 6120(a)(1). If the individual is not barred from possessing firearms, the individual can, without any license, manufacture firearms for his own use and possession. 18 Pa.C.S. § 6111.2 .
AR-15 and AR-10 rifles are semi-automatic rifles designed to accept magazine-fed ammunition. The rifle, itself, is comprised of a number of components listed below. The Federal Gun Control Act of 1968 defines the term "firearm" to include the "receiver." 26 U.S.C. § 5845(a)(1). The term "receiver" is further defined to mean the "part of a firearm that provides housing for the hammer, bolt or breech and firing mechanism and which is usually threaded at its forward portion to receive the barrrel." 26 U.S.C. § 5845(a)(6). Thus, for the purposes of firearms manufacturing, the receiver is the core component of a firearm that makes it a functioning weapon and which must be transferred to and tracked by the BATFE.
Importantly, an AR-15 or AR-10, as manufactured, includes only three "firearm" components that must be registered. The trigger assembly is not a gun component subject to transfer. Therefore, only the upper and lower receiver and the barrel must the recorded as the manufactured gun components.
In Pennsylvania, a private citizen is not authorized to sell a firearm and is obligated to transfer the firearm to a licensed dealer pursuant to the Steel case. Furthermore, the U.S. Supreme Court in United States v. Garber, 768 F.2d 22 (3d Cir. 1985), held that the USGI M1 rifle was not an unregulated firearm because parts of the rifle were manufactured by private citizens without the benefit of regulation. Thus, the Garber decision made clear that firearms manufactured by private citizens in absentia of any statutory licensing requirements were not considered firearms, but firearms manufactured by licensed individuals were firearms.
80% lowers-without the trigger assembly-are considered firearms and must be tracked by the Federal Government. However, before you insert the trigger assembly into the frame, the frame is not required to be tracked by any Commonwealth agency. However, as soon as the trigger assembly is inserted into the 80% lower, the firearm is a complete firearm that must be transferred through a federally licensed firearms dealer.
Recent Legal Cases and Issues
In May 2015, Governor Tom Wolf signed into law Act 15, which amended the Motor Vehicle Code to include Section 6111.3, stating: "Notwithstanding any other provision of law, only a person licensed to manufacture firearms under the laws of the United States or this Commonwealth or authorized to do so by the United States may manufacture, possess, sell, transfer, purchase, receive, transport or deliver a firearm unless that firearm has a serial number or other mark of identification legibly placed upon it as required by the laws of the United States and this Commonwealth." 75 Pa. C.S.A. § 6111.3. This section has been interpreted to prevent the manufacture of an 80% lower, as it is incapable of being identified by a serial number or mark of identification. 80% lowers remain a hot button issue in Pennsylvania and across the country, as courts have been asked to rule on their legality. In August 2017, the Pennsylvania Supreme Court upheld a lower court decision and determined that manufacturing an 80% lower, without the approval of ATF, was illegal. Commonwealth v. Ortiz, 174 A.3d 578 (Pa. 2017). The court stated: "[a]ny use of firearms parts that are not marked with a serial number must first receive the appropriate permissions from the Commonwealth and the Federal government." Id. Further, in an unpublished memorandum decision, a panel of the Pennsylvania Superior Court held that the definition of "firearm" in the Uniform Firearms Act encompasses something lacking any "mechanical ability to reload itself or otherwise automatically chamber a round," i.e., a firearm lacking a magazine or magazine well. Commonwealth v. Marcus R. DiCamillo, No. 3292 EDA 2016, 2018 WL 946312, at *1 (Pa. Super. Ct. Feb. 20, 2018).
Permits, Risks, and Compliance
In Pennsylvania, gun owners generally purchase firearms from a licensed gun dealer. When you buy a firearm from a federal firearms dealer, the dealer will run a background check via the National Instant Criminal Background Check System (NICS). Gun owners in Pennsylvania can complete their gun purchases in a matter of minutes. However, some people want to avoid background checks or have been denied the ability to own guns due to their criminal past, and many others just like the idea of building their own guns the same way people have for centuries.
The idea behind 80% lowers is that only a percentage of the lower receiver is completed when you purchase the lower. You then use the tools provided and your existing home shop equipment to mill out the remaining 20%, which would then be completed into a "firearm" under the Pennsylvania statute. At this point, you have a firearm whose purchase was not subject to any background check and everyone involved will argue with certainty that it was legal to do. However, in 2018, the ATF ruled that firearms do not need to have a serial number after a 4473 is completed and a background check is run. This means that everyone who has finished an 80% lower in Pennsylvania will be violating 18 Pa.C.S. § 6111.2 if they do not apply for a serial number prior to completing the lower, and if they apply for a serial number after completing the lower, they will be guilty of failing to record the firearm according to 18 Pa.C.S. § 6111.4.
The 80% lower business is filled with information on how to finish your 80% lower, and they all specifically note to stay within the bounds of the law regarding the amount of tooling that is acceptable. Therefore, each 80% lower is made without the required negative space for the fire control group or normally without a method of attachment or feeding device. In order to be legally compliant, you must obtain a serial number per 18 Pa.C.S. § 6111.2 before creating that space. If you do this, then you are only left with the negation of the tax stamp as a risk.
Many people simply do not apply for a serial number because there is no need. People can go to their local Gun and Knife show and buy an unregulated or "ghost" gun at will. Gun and knife shows do not require a background check, and therefore you will already be in the system as a prohibited person if you can pass a background check. Therefore, the legality of an 80% build as a ghost gun really comes down to whether or not you have applied for a serial number prior to milling out the stock. At this point, you are looking at a very small fine of $10 to $50 when you are caught.
One way to eliminate this risk as a ghost gunner is to purchase your 80% lower through a licensed firearms dealer. This way, the dealer can run the background check and then hand you the serialized lower receiver. If you do purchase a serialized lower receiver, you may still want to go ahead and purchase it through a licensed dealer . However, you must realize that you now have a serialized lower and shooting it in public will potentially get you charged with a felony because you have not concealed it.
The real regulations that need clarification involve what is a legal "firearm" in the Pennsylvania. Federal law 18 U.S.C. 921 defines a "firearm" as the frame or receiver of a firearm, so this should cover all and every firearm in the country. In Pennsylvania, a firearm is "Any handgun, rifle, shotgun or any weapon designed or adaptable to be fired with one hand." Therefore, if you have a bolt action grip chambered to fire .22LR, it is not considered a firearm in Pennsylvania when using a normal pistol grip or muzzle brake, but is defined as such if you use a vertical grip or angled grip. This definition would seem to exonerate the use of a vertical and/or angled grip on a pistol, but in fact it just shows that you have additional decor on your picture frame in the eyes of the State Police. The part that we really need help clarifying here when considering whether or not 80% lower builds are illegal is the "adaptable to be fired with one hand" part. At this point, you have two options in order to comply: A) you build a firearm with a standard straight grip, or B) you mill out the area for a vertical grip and then register it as a "Registered Firearm" per 37 Pa.Code § 321.13.
However, this is not what is currently being discussed by either side of the issue. The lack of knowledge is actually the reason that people are worried about the legality of "Ghost Guns". The ability to use a 80% lower receiver to create a "Ghost Gun" only requires a few thousand dollars of tooling, a few hours of work, and a low-level of skill, making it even easier than creating a clay sculpture or model airplane. The lack of knowledge is what makes people scared of these. This is also what often drives the people behind 80% lowers to not register their firearms and use them as ghost guns. To clarify – there are no known criminal organizations or Enterprises that have been caught using 80% lowers for illegal activities thus far in their short history. The primary reason that the police and prosecutors assert that 80% lowers and "ghost guns" are illegal is due to the lack of knowledge by the general public on the subject. The reality is that it is perfectly legal to build your own gun in the state of Pennsylvania and own it so long as you comply with the necessary background checks. If you want to be able to carry your own home-built gun in public, then you will need to either grind out the required recessed area for a vertical grip, or you need to register it as a "Registered Firearm" so that it complies with 37 Pa.Code § 321.13. So long as you follow these simple rules you should be fine – well except for that pesky tax stamp….