Alert: Help Us Fight the ATF’s Attempt to Expand Their Power

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Injunction Filing

Last night Defense Distributed filed a motion for a preliminary injunction against the State and Justice Departments.

Our argument is easy for anyone to understand:

  1. The First Amendment protects 3D file publication
  2. The State Department no longer has regulatory jurisdiction over 3D files and has defended this in the Ninth Circuit
  3. The State Department has a settlement agreement with Defense Distributed to permit 3D file publication
  4. ITAR enforcement under these circumstances is a severe and malicious inequity

This does not mean we will get the injunction. The Honorable Robert Pitman is a party jurist and I have no faith in his administration of justice.

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Under Attack

The DOJ has demanded we take down the 16,000 files that have been newly issued to the public domain at DEFCAD. They claim the Ninth Circuit injunction is still in place, despite the stone cold legal fact that it is NOT.

This is an artless pretext to somehow buy time for Uncle Joe to place firearms CAD data back on the ITAR.

That will not work now. The published files are public domain and future ITAR designations will not apply to them.

We have filed motions for emergency relief in court. Tell your friends.

In five days it will be 8 years fighting this criminal use of the ITAR. Further commentary on this horseshit is beneath me.

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DEFCAD Round Three

Legion,

In news that should not be a surprise but has truly shocked our enemy, the Ninth Circuit Court of Appeals has vacated the injunction against the State Department’s transfer of 3D gun technical data to the Commerce Department. The opinion is below.

In short, 90% of the files at DEFCAD are now free for the public to download, without an account, worldwide. As of this hour, those CAD files have been validly and irrevocably committed to the public domain. Forever.

Enjoy your speech to Congress tonight, Mr. President.

Review of the Leaked Ghost Gun Rule – Pt. I

Legion,

These notes reflect my understanding of the 107-page text leaked on April 19 as applied to the 80% trade. I do not bring to this analysis knowledge or interpretations from outside the text.

ATF offers the motive of clarifying the definition of a “frame or receiver.” The first ten pages are a justification for how the Agency has classified “split/multi-piece receiver[s]” for decades, despite the inadequacy of these classifications in recent court decisions. The next seven pages are about how “privately-made firearms,” or PMF’s, escape and negatively affect industry recordkeeping obligations. This is summarized on pg. 18.

Pg. 19 introduces a re-interpretation of “readily convertible” and is applied to complete parts kits, making them “firearms” under GCA. The definition is meant to mirror recent federal court decisions on this question, provided in the footnotes.

Pg. 21 begins the expanded categories of “frame or receiver.” ATF proposes a general definition along with several “supplemental” definitions. The general definition is: any part of a firearm that provides housing or a structure designed to hold or integrate any fire control component is a “frame or receiver.”

The supplements to this list are four: 

  • Silencer receiver
  • Split or modular frame or receiver (Pg. 27)
  • Partially complete receiver
  • Destroyed frame or receiver (not a receiver)

The “split or modular frame or receiver” supplement walks back the expanded definition of receiver on pg. 21 for those parts of firearms that have “previously been determined by the Director to be the frame or receiver.” The supplement will include a list of split receiver firearms that only have one receiver per prior ATF determination, to include AR’s, Glocks, Sigs, etc. New split receiver guns not on the list have more than one receiver unless ATF says otherwise.

Pg. 30 introduces the “partially complete” receiver class, which is any part or parts that have reached a stage in manufacture where they “may readily be completed, assembled, converted, or restored to a functional state.” Partially complete will further mean any forging, casting, printing, extrusion, machined body, or similar article that has reached a stage in manufacture where it is clearly identifiable as an unfinished component part of a weapon.

To determine partially complete status, the Agency will look at instructions, included jigs and tooling, as well as marketing materials. ATF will deem any component that is “readily convertible” to a receiver to be a receiver.
The expanded definition of “readily” begins on pg. 32 and is said to mean: “a process that is fairly or reasonably efficient, quick, and easy, but not necessarily the most efficient, speedy, or easy process.” ATF then outlines an insane 8-part, subjective test to determine how “readily convertible” is a partially complete receiver and/or a weapons parts kit.

Pg. 34 begins the new definition of PMF, or “privately made firearm,” and the next 20 pages include a new Gunsmith definition, outline how ATF wants licensees to mark PMF’s for A&D, and list more burdensome recordkeeping requirements.

The new Rule’s cost/benefit analysis begins on pg. 54. Of note is an analysis of “partially complete firearms kit” sellers on pg. 56. Here ATF considers non-FFL manufacturers who make:
1) kits that allow a person to make only a frame or receiver, and 
2) kits that allow a person to make a complete weapon.

ATF says if a receiver kit is “readily convertible,” it is a receiver, and if a weapons parts kit contains an unfinished receiver it is a “firearm.”

Finally, pg. 57 has a sentence so mystically turgid that I have tried to mark it with waypoints. The Agency predicts non-FFLs “[will] either [1] become FFLs or [2] would take a loss in revenue to sell a parts kit that does not contain a frame or receiver, or [3] simply sell the frame or receiver, but [4] not both.”

After three days, I cannot interpret this beyond understanding not to sell frames with parts kits. For more details, we are asked to refer to Chapter 3 of the Rule’s Regulatory Impact Analysis.

In closing, the black letter of this rule outlaws all “complete kits” like the Polymer80 BBS, but it’s not clear what happens to the current 80% receivers. 

Every 80% receiver would seem captured by one of the two proposed tests for “partially complete receivers,” on pg. 30, namely that they are either “readily convertible” to functional, or are “clearly identifiable” as an unfinished component of a firearm. So why does the rule continue to hypothesize a marketplace of receiver kits and sellers including instructions and jigs? Why even create the asinine test for “readily convertible” if “clearly identifiable” gets you there to begin with?

Lastly, on pg. 56 ATF expresses the belief “that the majority of the industry [already] complies with these requirements,” and that the “new definitions would mostly affect new designs or configurations of firearms.”

More analysis to follow. We’ll see if this version of the Rule makes it to publication before May 8.

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Grewal and the Ghosts

Nothing in all that letter-writing seemed to incline the Supreme Court to bail out Gurbir Grewal, Attorney General of New Jersey, from his little Texan predicament with Defense Distributed. As I told Law360, the General has under color of law deprived the American public of information protected by the First and Second Amendments. He will be judged by a Texas court.

That probably stings for him to contemplate. He has said it is unfair for a Texas court to interpret New Jersey’s very important, not at all illegal, gun laws. Mr. Grewal, it’s as fair as when a second-generation Asian immigrant with no background in half a millennium of Anglo-American political philosophy acts to criminalize free speech in Texas.

In other news, we’re told the President, who is demented, is definitely signing an executive order to “do something” about 3D gun plans. He’s also directed his ATF to expand the definition of firearm receivers.

Just a word about this new epoch of *additional* firearm receivers. Sixty years of ATF determination letters and industry guidance has baked in how firearms are made in this country. It doesn’t matter how many lawyers, how many moms and lispy activists you throw at the problem. There are already so many laws and practices in the supply and production of firearms in this country that to add this smallest, newest wrinkle, this tiniest of additional serialization requirements, would explode production and administrative costs so totally that no one but a blind Everytown progressive could believe it might have a chance of happening.

Nick Kristof has added his august voice in support of the (demented) President’s brave stand against the Ghost Gun menace, and once again the Ghost Gunner makes the pages of The New York Times. Between us, Nick, your copy is really killer advertisement that I’m unable to buy any other way. Don’t risk losing the newsroom over selling so many of our ghost gun machines with your carelessness! We don’t want to see you exiled to Medium like your bud Donald McNeil, writing about the “G-word” or something.

Dominica will be giving brief remarks at BANB on April 10 in Austin.

If you would like to support these legal actions, please join LEGIO.

Executives and Orders

New York Attorney General Letitia James has heard Gurbir Grewal’s soundings from the Hornburg and comes rushing to his aid with… an amicus brief at the Supreme Court. And tweets!

This bag and her swarm of 21 AG’s can only crow. If our work was in any way illegal, they’d do more than write mildly stern letters about it.

You may have seen that GOA and Defense Distributed sent our own letter to the White House. The President, who is demented, is said to be “considering” an executive order to ban “ghost guns.”

Our letter is not a request to meet. It is a reminder to Susan Rice and the millennial strivers at the White House OLC that we’re ready to sink them in a Texas court when they say “go.”

That ghost gun bill in Virginia failed. But now the shitheads in New Mexico want to try it. And next, New York says you’ll need a gunsmith’s license just to put your Glock back together. Ha!

Though it violates Yarvin’s rule against “crowdspeak,” If you would like to support these actions, please join LEGIO.

A 2021 Prospectus

Legion,

The following is an overview of the most relevant legal activity in homemade guns:

The State of Pennsylvania voluntarily dismissed its case against Defense Distributed/DEFCAD for sharing 3D files online.

Why would Pennsylvania dismiss their own case and leave the good people of Luzerne County defenseless? They say it’s because Uncle Joe will keep 3D gun data on the ITAR. But we’re not so sure.

Exhibit A is the recent oral arguments that took place at the Ninth Circuit Court of Appeals on the 3D/ITAR question. You’ll recall Washington state got an injunction to stop the State Department from handing over its regulatory authority to the Commerce Department. We are not counting on that injunction holding.

Back in Texas, Attorney General Grewal of New Jersey is quite upset about his decision to submit to Texan jurisdiction in our big showdown. He’s asked the Supreme Court to bail him out before he suffers a true embarrassment.

In the Southern District of New York, the DOJ offered a surprisingly sane reply to the gun control groups trying to end the era of 80% receivers. I cannot relax my professional cynicism here, however, because there’s plenty of time for team Biden to turn this or the case in California upside down.

The Second Amendment Foundation has also filed an amicus brief in this case. The federal reply and this brief are the best current legal outlines of the ancillary rights protected by the Second Amendment. I recommend you commit these authorities and arguments to memory in the fights ahead.

One of the fights ahead will likely be in Virginia, where HB2276 contemplates a complete ban on homemade firearms similar to the one in New Jersey. Remember when Virginia was considered the South? Isn’t the NRA headquartered there?

The Bear Arms N’ Bitcoin conference will be a fun time.

As will the first annual GFEN Maker’s Match.

If you would like to support any of this litigation, please join LEGIO.

80 Percent Lawsuits Part III

Legion,

Since we last spoke, ATF California raided Polymer80 in Nevada with a new theory of constructive possession of a firearm. The warrant ATF eventually shared outlines a determination that two Polymer80 “Buy-Build-Shoot” kits are now firearms, but it does not outline its reasoning. ATF is relying on a string of legal authorities concerning the definition of “readily convertible,” though those facts and cases have never been applied to assemblies including receiver blanks.

The ATF raid is both a show of force and loyalty to the incoming Biden government by Acting Director Lombardo, who hopes to be confirmed Director in 2021, as well as a strategic choice to complicate the agency’s own legal position on unfinished receivers in federal court. As we’ve explained earlier in the year, ATF wants to be able to regulate 80% receivers, but lacks the power to do so. It has asked friendly gun control groups, AG’s and municipalities to sue it in federal court so that a judge will call their positions arbitrary and get them out of their regulatory knot.

As a reminder, these two cases are:

City of Syracuse, NY, et al. v. Bureau of Alcohol, Tobacco, Firearms and Explosiveset al., 1:20-cv-06885 (SDNY)
State of California, et al. v. Bureau of Alcohol, Tobacco, Firearms and Explosives, et al., 3:20-cv-06761 (N.D. Cal.)

Recent press coverage has shown how many progressive city attorneys and prosecutors are now writing in support of these cases, bleating about how the very bad no good 80% market has made it doubleplus ungood for policing their failed cities.

Luckily, since ATF went so hard in the paint, Polymer80 now has no choice but to forcefully intervene, and you can read their CEO’s declaration below:

So Happy New Year, Legion. In 2021 you’ll either 3D print or home CNC your ghost guns. Good thing you know the company who invented all that.

If you would like to support this litigation, please join LEGIO.

80 Percent Lawsuits Part II

Legion,

When we last visited the two federal lawsuits (Everytown and Giffords) brought against the ATF and the 80% receiver classification, we mentioned expecting a third such case.

The third such case is a set of wrongful death actions brought by Brady. While the first two suits target ATF to mischaracterize how it regulates non-firearms in order to confuse a federal judge, the Brady suit targets sellers of the non-firearms themselves, bringing along the same federal mischaracterizations in order to confuse a state judge in California.

For what it’s worth, the lawsuits name a number of defendants who have never sold 80% receivers and adventurously misstate California law, but gun control litigation is rarely troubled by fact or law.

Brady’s (Brady United’s?) timing is also awkward since we’ll all just point to the restatement of the Constitutional limits and statutory completeness of firearm receiver regulations the DOJ filed in a recent motion to dismiss in State of California v. BATFE, No. 3:20-cv-06761-EMC.

I recommend reading the below motion to dismiss. It’s competent, and it includes arguments and data the ATF rarely discloses.

Better luck in 2021, guys. Maybe Biden’s AG will bail you out of your mess?

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Amended Texas Complaint

In Defense Distributed v. Grewal, No. 1:18-cv-00637-RP (W.D. Tex.) and No. 19-50723 (5th Cir.), we have amended our complaint to bring back our old friends at the U.S. Department of State.

This move comes after waiting for the State Department to perform their legal obligations to Defense Distributed for the last two years. The record we’ve built shows State conspired with lawmakers and gun control groups, against the advice of DOJ, to ignore our legal settlement and to not defend it in any venue.

This is an important action to essentially re-present the key issues of our first State Department suit as early as possible in the Biden era. Remember that Biden campaigned on a policy of keeping all technical data related to firearms under State Department control and off of the Internet, against the interests and constitutional liberties of the American people.

If you would like to support this litigation, please join LEGIO.

Since Jan. 1 2021, no warrants have been served to ddlegio.com principals or employees. No searches or seizures have been performed on ddlegio.com assets.