April 22, 2021

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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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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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.”

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.

February 3, 2021

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.

December 31, 2020

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 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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December 10, 2020

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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November 13, 2020

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.

September 30, 2020

Legion,

There are now two federal APA lawsuits challenging the way the ATF classifies unfinished receivers. The first was brought last month by Everytown in New York, and the second was brought yesterday by Giffords in San Francisco.

We should probably expect a third.

These suits attempt to do the same things, which are: 1) get a federal judge to declare all ATF 80% classification letters and manufacturing guidance illegal, and 2) start a new APA rulemaking process based on Everytown and Giffords’ preferred definition of a firearm (read: anything that can become a firearm is now a firearm).

The plaintiffs have no standing to sue the ATF, but as we have seen in the New York case, the agency itself is actually a willing and complicit party. Motivated agents within ATF supplied the record Everytown and Giffords needed to make their complaint, and the agency’s attorneys have declined to dismiss or challenge the plaintiffs’ standing.

You mean the plaintiffs, the defendants, and the judges are all on the same side?

Yes. These are mock actions dressing up a Bloomberg rewrite of your 2A literally coordinated by a buttmad ATF and DOJ.

August 25, 2020

Legion,

You may have heard the Fifth Circuit recently reversed the district court in our Texas case against Gurbir Grewal and will allow our First Amendment suit against his wretched state laws to proceed. That opinion is below.

The Third Circuit held out for that decision in the Fifth and then issued a divided panel decision trying to get us to go away. I don’t think we’ll be making it that easy for them.

In the above opinion, note the ten page dissent. It is a good guide for the circus New Jersey is putting us through.

I’d also recommend you check out professor Blackman’s latest article on our legal efforts. This can be found here.

Regarding the Blue State Tax we announced last month, this is now official DD policy. Until New Jersey residents can keep their government to themselves, they will pay the tax.

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

July 22, 2020

A one paragraph order from our panel in the Ninth Circuit.

Upon a review of the record, the briefing on the motion to dismiss, and the responses to the court’s June 19, 2020 order, we conclude that these appeals are moot because no present controversy exists as to which any effective relief may be granted to appellants.

This two-year railroading began with liberal attorneys general finding a liberal judge to illegally give them the standing to strip away our legal victory in Defense Distributed v. U.S. Dep’t. of State. When we appealed this obvious misuse of the forum, we learned that we were the ones that didn’t have the standing to bring a case. Funny how that works.

Of course we will now appeal to the entire Ninth Circuit, but further comment is now warranted.

The Liberator files were published seven years ago. They are still online at DEFCAD and anywhere else you care to look. We created Ghost Gunner to finance the supposed access every American has to the federal courts. Yet in these seven years the merits of our cases have never been heard. District judges invariably kick the can through procedural conceits and appellate panels delay and defer, refusing to review plain legal error made in open view. The SCOTUS is no friend. It allows Heller to rot.

This panel’s decision is past contemptible. It is an aggressive dereliction. I’m saying there is more rule of law in China. So on to the next phase of our operations.

Blue State Tax

I’m tired of paying the expenses Blue Staters have made us incur. In truth, no one in New Jersey deserves a Second Amendment. Neither does anyone in Washington. You’re not using it, and yet you make those of us working in Texas pay the highest of prices to advance it.

So if you want the benefits of our efforts, you’ll now pay the tax.