Comment on ATF 2021R-05
May 25, 2021
Uncle Joe’s new ghost gun rule has been published in the federal register, and so the 90 day comment period begins. DD has made a comment submission form available at Ghost Gunner, and will publish one on this site as well.
Though we as an organization will submit a larger, official comment by letter, we share here an outline that you may adapt to your own purposes. Please do take the time to record your comment in opposition of this rule.
With its definitions of “partially complete receiver” and “readily,” ATF 2021R-05 would codify arbitrary and capricious classification standards. The vague definition of “partially complete receiver” contains still more vague definitions, like “clearly identifiable”, “unfinished component part of a weapon”, “critical stage of manufacture”, “sufficiently complete to function”, and “primordial state.” The new definition of “readily” contains so many factors, and of such ambiguous weight and meaning, that the test can only be meant to confuse and intimidate non-FFL entities before ATF’s awesome authority. The multi-factor test for “readily” amounts to lawless Caesarism, and invests the ATF Director with more power than Congress has authorized. ATF would like to legitimize its wholly arbitrary sample submission process– one which is not derived from the GCA, and which ATF emphasizes does not even obligate them to respond. This is a farcical and irregular process that lacks any pretense of Fifth Amendment protection, and, by literal definition, gives the Director unlimited discretion.
Did ATF examine relevant data?
No. ATF admits in this rule’s Regulatory Impact Analysis, Chapter 3, that it did not attempt to collect the relevant data on “partially complete” receiver and kit sales. ATF has no idea how much commerce will be affected and instead tauntingly asks reps from Ghost Gunner, by name, to share their own analysis.
Did ATF rely on factors Congress did not intend the agency to consider?
Yes. Congress explicitly states in Sec. 101 of the GCA: “it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law-abiding citizens with the respect to the acquisition, possession, or use of firearms..” and “this title is not intended to discourage the private ownership or use of firearms by law-abiding citizens.” ATF makes no analysis of how the definitions, without tailoring, might contradict GCA or discourage the private ownership of firearms
Did ATF fail to consider important aspects of the problem?
Yes. ATF failed to include any Second Amendment analysis. Further, since ATF would award itself the power to determine when a component has become a firearm based on included “instructions” or a firm’s “marketing,” ATF failed to include a First Amendment analysis. Further still, ATF fails to offer a Fifth Amendment analysis of its purposefully opaque sample submission process.
Is ATF’s explanation counter to the evidence?
Yes. Press accounts from 2021 show groups like Everytown met with the White House to lobby for an ATF reinterpretation of the word “firearm”. We see ATF’s prior regulatory rationale on the “partially complete receiver” question in City of Syracuse, NY, v. ATF, 1:20-cv-06885 (SDNY) and State of California v. ATF, 3:20-cv-06761 (N.D. Cal.). But the rule has no treatment of this ATF record. We may reasonably conclude this rule is made at the direction of activist elements outside of the ordinary legal and administrative center of the agency.
Did ATF consider all regulatory alternatives?
No. The Wall Street Journal published a story recounting a 2021 meeting ATF leadership arranged with the wider firearms industry, where the “ghost gun” question and this rule were discussed. So rushed was this agency to publication that there is no mention of any one of the regulatory alternatives proposed by the industry.
Did ATF adequately explain its massive “flip flop” on 80% receivers?
No. ATF hides from its public record of decades of determination letters, produced in City of Syracuse, NY, v. ATF, 1:20-cv-06885 (SDNY) and State of California v. ATF, 3:20-cv-06761 (N.D. Cal.). The agency does not explain if it is judicially estopped from withdrawing these. ATF is so cowardly that in 100 pages it would rather imply the overturning of these letters and ask commenters if they believe a flip flop has even occurred. This is shameless and deserves chapters of explanation.
In these more than 100 pages we see a textbook demonstration of undisciplined, bureaucratic decision-making. The new definitions of “partially complete receiver” and “readily” guarantee arbitrary and capricious outcomes and threaten a host of activity, commercial and non-commercial, protected by the Second Amendment. This proposed rule ignores the realities of the design and engineering process, how marking of components in an “active state of manufacture” is actually performed by real manufacturers and producers, and it incentivizes technical developments that will create an even worse black market of untraceable firearms, contrary to the rule’s stated goals.
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May 6, 2021
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:
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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April 30, 2021
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
April 28, 2021
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
April 22, 2021
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:
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  become FFLs or  would take a loss in revenue to sell a parts kit that does not contain a frame or receiver, or  simply sell the frame or receiver, but  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
April 6, 2021
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.
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Executives and Orders
March 3, 2021
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.”
Though it violates Yarvin’s rule against “crowdspeak,” If you would like to support these actions, please join LEGIO.
A 2021 Prospectus
February 3, 2021
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.
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80 Percent Lawsuits Part III
December 31, 2020
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 Explosives, et 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.
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80 Percent Lawsuits Part II
December 10, 2020
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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