Second Amendment Roundup: VanDerStok Tests Limits of Yet Another ATF Rule

The Supreme Court is set to decide whether the agency may expand criminal liability under the Gun Control Act.

On October 8, the Supreme Court will hear oral argument in Garland v. VanDerStok, a challenge to the Final Rule of the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) from 2022 redefining and drastically expanding the meaning of the terms "firearm" and "firearm frame or receiver."  This is the first of several posts in which I'd like to highlight some of the enlightening amici curiae briefs that have been filed in support of the respondents who challenged the rule.

The Gun Control Act defines "firearm" as "(A) 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; (B) the frame or receiver of any such weapon…."  18 U.S.C. § 921(a)(3).  An ATF regulation on the books from 1968 to 2022 defined a "frame or receiver" as "that part of a firearm which provides housing for the hammer, bolt or breechblock and firing mechanism" – in other words, to main part of the firearm to which the barrel and stock attach.

The Final Rule expanded "firearm" to include "a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive."  And it redefined "frame or receiver" to include "a partially complete, disassembled, or nonfunctional frame or receiver" that is "designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver."

The impetus for these new definitions is the political controversy over "ghost guns," a term used by the Administration and by gun-control advocates to refer to privately-made firearms fabricated from partially-machined raw material known as "80% receivers."  Fabrication of this precursor material into an actual receiver requires precise drilling, milling, and other machining of metal and polymer with common and uncommon tools to make an actual receiver.

Federal law requires persons engaged in the business of manufacturing or importing firearms to engrave them with serial numbers.  Private individuals have always been free to make their own firearms without such federal restrictions.  The new definitions have the effect of subjecting hobbyists to federal controls.

The Fifth Circuit held that ATF may not change the definition of "firearm" enacted by Congress and that its redefinition of "frame or receiver" failed to reflect the original, common understanding of that term.  It thus ruled the definitions to be beyond ATF's authority and arbitrary and capricious.

In the Supreme Court, the government begins its defense of the Rule by asserting that so-called "[g]host guns could be made from kits and parts that were widely available online and allowed anyone with basic tools and rudimentary skills to assemble a fully functional firearm in as little as twenty minutes."  Not one of those italicized terms is even close to reality.

For a reality check, I refer you to the Amici Curiae Brief filed by Rick Vasquez, former Acting Chief of ATF Firearms Technology Branch, and by the Center for Human Liberty.

Vasquez served in the Marine Corps for 21 years during which he worked as a gunsmith at the precision weapons shop in Quantico, Virginia. He also served as a gunsmith and firearms instructor for the U.S. Department of State. Most notably, from 1999 to 2014, he served as a Firearms Enforcement Officer in ATF's Firearms Technology Branch (FTB), the division that determines whether partially-machined material that can later be manufactured into a firearm constitutes a "firearm" under the Gun Control Act.

In 2004, Vasquez was selected as the FTB's Assistant Branch Chief, and from 2008 to 2010, he held the Acting Chief and the Assistant Chief positions. He reviewed and approved hundreds of determinations of whether items were "firearms," the majority of which related to the manufacturing of receivers for AR-15 style firearms.

Quoting the government's brief in VanDerStok, Vasquez writes:

In reality, not just "anyone" with "basic tools" and "rudimentary skills" can take a parts kit and assemble a "fully functional firearm" at all, let alone in a "matter of minutes." Even assuming the hypothetical "anyone" had the tools needed to construct a firearm, they also need a level of skill, patience, and determination that eludes most non-experts.

The government focuses on the Polymer80 parts kit for a Glock-style semiautomatic pistol, but fails to explain the supposedly simple process. Vasquez provides a step-by-step summary of fabricating a functioning firearm from this parts kit. He notes: "On their first attempt, non-experts are frequently unable to even get their firearms to work after many hours of frustration. Many beginners don't know where to start."

The government also fails to discuss the complexity of building AR-15-style firearms from parts kits, which is a far more difficult task than building Glock-style handguns.  As Vasquez explains, "Machining the fire control cavity of a lower receiver in particular," a task necessary to complete an unfinished receiver, "is a painstaking process that demands precision and requires technical expertise with uncommon tools."

Not surprisingly, Vasquez's explanations are highly technical and may be difficult to understand by persons who are not firearm experts.  The illustrations in the brief are helpful.  I won't even try to define all of the terms he uses.  But that's why his brief is so significant.  The Supreme Court should not be misled by the government's unrealistic claim that anyone can make a functioning firearm from a kit in minutes.  The average person won't be able to make one at all.

Let's start with building a Glock-style handgun.  As to the tools needed, Vasquez relates, "most everyday citizens (to say nothing of a prototypical street criminal), do not have all of them on hand."  When California sued ATF in 2020 for not designating various "80-percent" parts kits as "firearms," the government stressed that tools such as end mills "are beyond the common household tools' that [California] repeatedly characterize as sufficient to complete this detailed work." California v. ATF, ECF No. 64, No. 20-cv-6761 (N.D. Cal. Jan. 11, 2021).

Austin Murphy, a California journalist, wrote an article "How easy is it to build a ghost gun?"  The Press Democrat (Nov. 12, 2021).  Vasquez quotes from the article in the various stages of the build to show it to be beyond the capabilities of non-experts without expensive, advanced tools.  In fact, Murphy enlisted the aid of a gun machinist with expert knowledge and tools to do most of the work.

Murphy said he "felt a twinge of panic as he read the instructions," prompting him to seek the aid of an expert with a serious workshop.  Vasquez writes that "even after turning the work over to experts three separate times—first to mill the frame, then to assemble the numerous parts, and finally to fix it when it jammed—it took the group more than seven hours to build a functioning firearm from a Polymer80 kit."

As Vasquez observes, "When the out-of-pocket cost of building a gun at home exceeds the cost of buying a new one, it bolsters the conclusion that homebuilding is an exercise mostly undertaken by hobbyists."  For gangbangers with no skills or tools, the black market or theft does the trick instead.

To show how "anyone" can make a Glock-style pistol in minutes, the government refers to a video in which a skilled firearm expert uses a jig, drill bits, Dremel high-speed grinding tool, files, and sandpaper to fabricate a frame from a Polymer80 kit.  That is followed by the installation of numerous intricate parts by use of roll pins.

It's not so easy.  As described by Vasquez, one must first place the frame precursor in a jig in order to drill six holes; "if these opposite side pin holes are not aligned to within a few thousands of an inch, the firearm cannot be assembled."  Next, one mills the top rail and then the barrel block, which is also difficult.

For those steps, Murphy enlisted a second firearm expert "to make sure I made no dumb, dangerous mistakes…."  Murphy tried to install the slide lock spring and locking lever by himself, but that was "slapstick—witness my dozen or so attempts to drop the itty-bity slide lock into its elusive groove."  Next came installation of the magazine release spring and button, combining the trigger assembly and dropping it into the frame, inserting the pins for the slide stop lever, and attaching the slide.  (In the video cited by the government, the slide was already assembled.)

As Vasquez relates, "the moment the builder tries to rack the slide is often the first time that the builder learns something went wrong with the milling process."  That happened to Murphy, who gave his malfunctioning pistol to his expert friend for a few more hours of troubleshooting.

Vasquez concludes the first part of the brief with the observation that "the central premise of the government's argument—that 'anyone' can build a fully functioning Glock-style handgun from a parts kit 'in a matter of minutes'—is simply wrong."

Part two of the brief describes the far more difficult process of building an AR-type firearm, which is why the government virtually neglects the subject.  To complete an AR lower receiver from a partly completed "blank" that one purchases, the area that houses the trigger mechanism and hammer must be milled out and holes must be drilled for the selector, trigger, and hammer pins.  As the government brief explained in California v. ATF, that requires "multiple drill bits strong enough to drill aluminum or polymer …, along with lubricants to reduce heat and prevent the drill bits from melting," as well as "specialized tools, such as end mills, [that] must be used to excavate the cavity to house the trigger and fire control mechanism." As Vasquez adds, one also needs a vise block, bench block, barrel rod, torque wrench, armorer's wrench, and more.

In response to California's argument that completing an AR-type receiver blank is just a "simple process," Daniel Hoffman, the then (and current) Chief of ATF's Firearm Technology Industry Services Branch (previously called the Firearms Technology Branch) explained how difficult it is.  Hoffman is a retired Army Infantry sergeant with nearly thirty years technical experience in complex weapon platforms.  He wrote:

I completed my first AR-type receiver in the fall of 2017, using a compatible AR-type fixture (e.g., a jig), a hand drill, and a drill press. The initial drilling of the fire control cavity took me approximately three hours.  However, the dimensions on the cavity were not to specification, and I needed another hour and a half to get the receiver into a functional state. Even at four and a half hours, and with my considerable experience with firearms, the completed receiver build quality was substandard, with the fire control cavity not being cut to exact specifications.

Once the lower receiver is fabricated, there are over 100 parts to assemble to make a functional AR firearm.  Expenses may cost anywhere from $500 to $3000, depending on the quality.  As Vasquez concludes, "even if one spent the time and money to gather all of the necessary tools, equipment, and parts, they would still need the knowledge and skill to assemble a working AR-type firearm."

In sum, the government hopes to stampede members of the Court into believing that so-called "[g]host guns could be made from kits and parts that were widely available online and allowed anyone with basic tools and rudimentary skills to assemble a fully functional firearm in as little as twenty minutes."  The brief of former Acting Chief of ATF Firearms Technology Branch Rick Vasquez explodes that fantasy.

Comments

[Abdul Abulbul Amir]

Is it any wonder that trust in government is so low?

[Brett Bellmore]

The BATF is a special case; It's the only government agency that's literally dedicated to violating a constitutional right. Most of them just incidentally do it, rather than having it as their founding mission.

[John F. Carr]

It looks like the government got the 20 minutes figure into the administrative record. Courts are supposed to defer to the agency's expertise when presented with a factual dispute.

[Gunstar1]

Unless it meets one of the reasons in 706(2). Which I believe is why this Amici brief was filed.

[gormadoc]

I wouldn't highlight this part: "multiple drill bits strong enough to drill aluminum or polymer …, along with lubricants to reduce heat and prevent the drill bits from melting". If you have access to a mill then you almost certainly have the bits and lubricant needed to mill aluminum and most plastics. The necessary precision and special tools are more daunting.

[Stupid Government Tricks]

Why? You want to make it seem simpler?

The whole point is to show how complicated it is.

Imagine this were about building your own gasoline engine. You want them to just say "Machine the cylinder" without noting how complicated that is, or that you need multiple cylinders?

[gormadoc]

Because having the parts for machining aluminum is pretty much the standard if you have a mill and acting like it isn’t makes the rest of the case seem weaker than it is. Very few people would have a problem acquiring the drill bits necessary for aluminum (which aren’t particularly “strong”) or the lubricant for doing it (WD-40 would work) and aluminum is one of the easiest metals to mill. However, many fewer people are skilled enough to mill with extremely high precision and then only a very, very few have the skill necessary for the rest of the process.

It’s like if you wanted to impress how difficult it is to compose good music and as part of your argument you wrote “you have to be able to read music in C major and A minor.”

[wnoise]

> lubricant for doing it (WD-40 would work)

WD-40 just barely works as a temporary lubricant. It's whole purpose is to get things unstuck so that actual lubricants can be applied to the parts.

[Gunstar1]

21 minutes comes from the length of an edited youtube video.

https://web.archive.org/web/20200331211935/https://www.youtube.com/watch?v=ThzFOIYZgIg

[Stephen Lathrop]

1. If the description is, “as little as 20 minutes,” then times lasting many multiples of 20 minutes are also included.

2. The question how long it takes cannot reasonably be limited to how long it takes a person without skills to learn them, and then do it the first time. It can also include how long it will take that person after perfecting his skills, tooling up, building jigs and fixtures, and doing the same job for the one-thousandth time. Indeed, that would be by far the more worrisome case for law enforcement.

3. None of the tools and materials mentioned are beyond the capacity of anyone with a budget under ten-thousand dollars to order in used condition on the internet. People with high school educations routinely set up home shops doing just that, and teach themselves the skills necessary to use the tools.

4. Advocates who favor ghost guns have argued repeatedly and vociferously that those, plus 3-D printed guns, or parts made by both methods in combination, are so easy, and will become so commonplace, that gun regulation itself will be obviated.

5. Focus on sub-standard quality as a limitation would make more sense if the aim to produce ghost guns was limited to making guns to compete with commercially-made weapons in the open market. The offsetting attraction to a criminal to have a functioning weapon, however sub-standard, which is untraceable, must get full weight in evaluating whether the proposed regulation is reasonable. It would be a notable change in the legal status quo if denial of this regulation change resulted in criminals at liberty to carry untraceable weapons without fear of legal challenge.

6. Gun advocates who endlessly style themselves law-abiding seem too energetic (and over-reaching) about tailoring the laws they propose to abide. It is thus hard to take seriously the law-abiding claims—the less so the more often repeated.

[verochkax]

Regarding 6, could it be that gun advocates believe, in good faith, that nearly all of these laws are unconstitutional, and that the government has no legal or moral right to regulate most aspects of gun ownership?

[Dan Schiavetta]

So when someone invents a simpler kit, the ATF regulation is o.k.? Is that what you're saying?

[Brett Bellmore]

Statutorily OK. Constitutionally, not remotely.

[Michael P]

How much simpler can the kit be and still comply with the existing 80% rule? Factories make 100% receivers now, so the last 20% isn't a challenge for either technology or economically -- what invention do you think is required to being a simpler kit to market?

[Brett Bellmore]

I believe it's already been established that a completed receiver that simply needs an extraneous tab gumming up the works filed away doesn't comply with the 80% rule. You have to do some *precision* work to comply with it.

But Ghost Gunner has a desktop CNC mill that will take a simple aluminum billet to a 100% receiver. It's really hard to argue that a simple billet violates the 80% rule, while the milling machine itself is just a nice desktop mill that comes with the necessary CNC code, it can be used for other purposes.

So the BATF would need to argue that you can't buy billets if you own a CNC mill, to target THAT product.

[Michael P]

So if I buy a $2500 CNC, $500 of add-on kit, and a few blocks of aluminum I can make a somewhat janky version of the core parts of a firearm I can buy whole for as little as $500?

I suspect I have a different view of how to spend effort productively than BATFE.

[Brett Bellmore]

It's not an economical way to obtain a firearm, that's for sure. It's a way of locking down your ability to have one even if they're banned.

Of course, in the event the feds did ban AR-15 type guns, and the Supreme court upheld the ban, I rather expect they'd raid Ghost Gunner for a customer list, too. Because at that point they'd be going full on police state.

[verochkax]

That's why I bought 20 stripped lowers many years ago, still sitting in my safe

[Noscitur a sociis]

Many states have banned AR-15 type guns, and all of those bans have been upheld. Are those jurisdictions full on police states?

[Brett Bellmore]

Working their way towards it; They have generally been content to enact bans they know will mostly be ignored; When they become determined to enforce them is when the police states will hatch.

[ReaderY]

The text says “readily converted.” The fundamental statutory construction question is how easy to convert does a kit have to be to be “readily” convertinle. The government’s position is that these kits are very easy to convert. Mr. halbrook’s position is that it’s actually much harder than the government is saying.

That seems much more a factual question than a question of law. How easy is it? It doesn’t seem the sort of question that the Supreme Court is particularly equipped to answer.

The Court can, perhaps, provide some guidance on the standard. Does “readily converted” mean “readily converted” by a skilled person, or by anybody? With tools at hand, or without?

[wnoise]

Well, in addition to the factual question of "how easy is it actually", there's also the legal question of what "readily" means.

[Brett Bellmore]

I suppose I could maybe pull it off in 2 hours, but I'm a mechanical engineer with access to a full machine shop. I could build a gun from scratch if I really wanted to.

The thing I find troubling about this, as a statutory interpretation case, is that it seems to concede that, if the statute clearly permitted it, the government COULD ban home manufacture of firearms, or restrict it to only licensed individuals.

I always like asking, "If you substituted printing presses for guns, would this survive review?"

Could the federal government ban home manufacture of printing presses? I don't think so. Why would it be able to ban home manufacture of firearms?

[verochkax]

Ehh, I don’t think it’s much of a stretch to go from “You can’t buy any gun with a serial number from anyone other than a dealer and with an NICS check” to “You can’t make your own gun without registering it with a serial number.”

The problem is the former rule, not the logical conclusion.

[Brett Bellmore]

Well, the former rule pretends to be based on the interstate commerce clause, purportedly regulates interstate commerce in firearms. It's really hard to argue that me going at a chunk of aluminum with a drill press and file in my own garage shop is interstate commerce.

[Joe_dallas]

one of the problems with Wickard is the interpretation that everything is interstate commerce if it could be interstate commerce.

[ReaderY]

Under Raich, which I think goes well beyond Wickard, the federal government can regulate every aspect of sex. Every marriage, after all, takes money away from the interstate prostitution market. Because sex CAN be made a commodity and sold interstate, it IS an interstate commodity so far as the power of the federal government is concerned.

[MaddogEngineer]

Wow! If the federal government can regulate sex, then it can certainly regulate family law, since children result from sex!

[Joe_dallas]

fwiw - I think that there is a very strong argument that wickard was correctly decided since the wheat in question was being grown and eaten by the cattle in their commercial dairy operation vs being used for personal consumption as portrayed by the anti wickard camp. (with the caveat that a portion of the wheat grown was used for personal consumption). Wickards problem is the misinterpretation by subsequent courts. See Oconner's dissent in raich (raich as I recall)

[Brett Bellmore]

In neither case was it interstate commerce, by the pre-Wickard understanding of the term, which had only encompassed commercial transactions that themselves crossed state lines. The real Wickard outrage was allowing regulation of things that only 'affected' that sort of commerce, rather than having to BE that sort of commerce.

[Joe_dallas]

Sorry - I may have overstated my concurrence with Wickard. Should have said " there is a good argument vs very strong argument"

Your point is absolutely valid since the commerce was completely within said state (with the caveat that the milk sold may have been sold across state lines, though that fact was not addressed in the opinion so it is unknown).

That being said, it it the misinterpretation of wickard's holding that creates significant problems

[Stephen Lathrop]

Bellmore — So if a change in the market price of beef has an effect on the market price of chicken, you would nevertheless insist that the market for beef is no part of the market for chicken?

[Joe_dallas]

The question is on interstate vs intrastate commerce and the application of the commerce clause.

What does micro economics / the supply and demand curves / product substitution have to do with Brett's comment on the commerce clause?

[Brett Bellmore]

I would say, "So what?"

It's the power to regulate interstate commerce, not anything and everything that might affect that commerce. There's nothing remotely honest about an interpretation that renders every word after, "to regulate" moot.

[ReaderY]

I don’t doubt that people’s decisions about whether to have children have a substantial effect on the market price of chicken. More children means more demand, fewer children less.

Does it really follow that Congress can regulate how many children people can have because of its effect on the market price of chicken?

[verochkax]

It's really hard to argue that Harry-rob-a-quickiemart interfered with interstate commerce because the cash taken could have been used to buy stuff in interstate commerce, but that's the current state of the law.

[ReaderY]

The law was enacted pre-Raich, when it was thought that home manufacture for personal use by people not otherwise involved in dealing in interstate commerce was outside the scope of the Commerce Clause. But Raich said that it is. So Congress, under Raich, can simply amend the statute to cover home manufactured guns anytime it wants to. After Raich, the distinction is just a matter of statutory construction with no constitutional significance.

[Brett Bellmore]

And THAT is why people are buying things like the Ghost Gunner mill; Because they want that capability locked down before we go through a couple of years with a Democratic President who has a significant majority in Congress, and they make that serious push to outlaw guns.

The only thing that's kept them from doing that is their majority never being more than razor thin in recent years; It would evaporate if they made that push. If they get a large enough majority to be able to pass gun control laws even with defections, today's Democratic party would absolutely go for mass bans, and packing the Court if they get in the way. The Democratic party is now wholly under the control of radical anti-gunners at this point.

[jimc5499]

I'm in agreement with you Brett. I probably could make a gun from scratch. Rifling would be the most difficult part for me, but, I'm sure that I could make a jig to handle it.
The other day I ordered some Aluminum billets for a project at work. When I got the materials, the purchase agreement stated that I agreed to NOT use them for producing firearms or firearm components. Is that just caution on the part of the vendor or is something else involved?

[Brett Bellmore]

I haven't seen that before, myself, but I don't purchase stock for my employer, and haven't bought any home stock in several years.

[jimc5499]

One of my duties is to manage a small machine shop where I work. We make parts for test equipment and the repair of our jigs and fixtures. I buy a lot of tooling and raw stock. These messages have started appearing on the invoices from several companies for both raw stock and some machine tools. (mostly end mills)

[SRG2]

Two separate issues: whether the BATF rule is legit, and whether the home manufacture of guns can/should be regulated. I do not know about the former, lacking expertise in guns and trusting advocates from neither side.

Home manufacture of guns - obviously. 2A says nothing about it nor is it a reasonable extension. Provided such regulations as exist do not actively hinder someone's 2A right - and clearly they don't (please don't be stupid and pretend otherwise) they're not covered by the Constitution. If regulations had the effect of preventing the manufacture of firearms overall, then that would, I think, be too far. But they don't.

[Brett Bellmore]

I think you need a quick glance at the 10th amendment, it really sums things up here: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The federal government (Unlike the states!) is only supposed to have those powers the Constitution has delegated to it. So the initial question in the case of any law is not, "Does some clause in the Constitution prohibit this law?", but instead, "Does any clause in the Constitution authorize this law?"

So, we have to ask: What clause of the Constitution authorizes the federal government to ban home manufacture of firearms? (Or of any other article, for that matter...)

I'm coming up empty here, want to suggest one?

THEN, and only then, you get into the question of whether any clause of the Constitution prohibits the law in question. I would say that, since the claim to any regulatory authority here is tenuous verging on imaginary, even the slightest infringement of the explicit right would be enough to prohibit the law. It's not like you're balancing the 2nd amendment against some explicit grant of power and core federal purpose.

[ReaderY]

Raich said the Commerce Clause lets Congress prohibit home manifacture for personal use of anything that could potentially be sold in interstate commerce. So Raich says regulation of home manufacture of guns can be regulated by the federal govsenment under the Commerce Clause.

I totally disagree with Raich. But it’s there.

As I’ve pointed out before, under Raich the federal government can regulate sex anyway it wants. Prostitution is a thing. Under Raich, if sex can be made a commodity and sold, then it IS a salable commodity so far as the Constitution is concerned. Under Raich, Congress could ban marriage and personal relationships as an impediment to economic growth and require that sex be bought and sold theough federally licensed dealers as the only way to get it if it wanted to. It can do the same for guns.

[Brett Bellmore]

Sure, under Raich the interstate commerce clause gives the federal government authority over your every breath. It's a breathtakingly awful bit of constitutional reasoning, based firmly on the "But, drugs!" clause of the Constitution, visible only to Supreme court justices.

The problem is, the Court hasn't demonstrated yet that it's ready to give up on the "But, guns!" imaginary clause, either. Bruen looked like they were going to, but the Court majority recoiled from that decision as soon as they ran into a case where they didn't like following it's entirely defensible reasoning.

[Dilan Esper]

So on the one hand we aren't supposed to worry because it requires "precise drilling", etc., to make ghost guns, but on the other hand, requiring one of these precise drillers to engrave a serial number on the gun is a horrible interference with gun hobbyists?

What a completely incoherent argument.

[Brett Bellmore]

The argument here is that the BATF has exceeded its statutory power by abruptly changing the former interpretation of of the law which had stood since 1968. When an agency has interpreted a statute to mean one thing for 54 years, and then suddenly decides it means something else that dramatically increases the reach of a law, and a law whose violation is a criminal offense, it's not entitled to any deference.

Same basic issue as the bump stock ban: That's not what the law the BATF purports to be enforcing means, and the agency knows that, as demonstrated by it's long standing prior interpretation.

The above is a perfectly coherent statutory interpretation argument.

To be sure, we'd maintain that the statute itself is unconstitutional, but that's not the current case.

[MaddogEngineer]

Hmmm, sounds like a post-Chevron Loper Bright issue.

(Although I realize the argument is that the subsequent court decisions opened this door. Still, it’s ultimately a question for the judiciary to pass judgment about whether that updated interpretation is valid.)

[ReaderY]

It’s a legitimate statutory argument. At the time the law was passed in 1968, the Commerce Clause was thought not to reach home manufacture for personal use. Congress excluded it ro stay within what it perceived to be its interstate commerce jurisdiction, but attempted to close a loophole by prohibiting selling easy-to-put-together kits, since the sale of mass-produced kits would be interstate commerce under the narrower pre-Raich understanding.

So while the constitutional issues subsequently disappeared and after Raich Congress could regulate home manufacture if it wants, Comgress has chosen not to do so, and the law remains what it is. Given that the remains where it was left in 1968, manufacturers’ lawyers are fully entitled to argue that their kits are sufficintly hard to convert into guns that they fall outside the statutory definition. Everybody has a right to a legal defense. Arguing that ones conduct falls outside the statute is a perfectly coherent argument.

Legal defense arguments are not policy arguments. Defense lawyers don’t concern themselves with whether or not it’s good policy for their clients’ conduct to be outside the statutory language. From their point of view, if they can make an argument that what their client is doing is legal, then they are fully entitled to argue that the government’s threat to prosecute is a “horrible interference” with their clients’ rights, Magna Carta, Declaration of Independence, Due Process, liberty of the citizen, etc.

“The law is not a light for you or any man to see by. The law is not an instrument of any kimd. The law is a causeway upom which, so long as he keeps to it, a citizen may walk safely.”

Robert Bolt, A Man for All Seasons

A perfectly coherent argument. It’s what defense lawyers do. Mr. Holbrook is simply acting as a defense lawyer for manufacturers of these kits, making a classic defense lawyer’s argument, that these kits are not “readily convertible” to guns as the statute says. It would be a mistake to interpret his argument as a policy argument.

[Bubba Jones]

This is grade A obfuscation.

The first time I built a Polymer80, it took about 2 hours and is one of my more accurate guns.

A key to success is to use quality, Glock OEM parts.

The instructions they include with the kit are intentionally vague and convoluted to make it look difficult. It really is just drill 3 or 4 holes, dig out some plastic from the barrel area, and then assemble from standard parts.

The biggest reason that things don't work is that people get sloppy with their drilling, they use cheap knock off parts, or they get a bad kit from P80.

The point is not that these are cheaper or easier than buying a gun. The point is that you can crank out a bunch of these for your buddies with minimal practice. NTTIAWWT

[verochkax]

What parts were Glock OEM? Just the internals (lower and upper) or was the slide a Gen3 Glock slide?

- I'm a certified Glock armorer, and am legitimately curious.

[Bubba Jones]

The key is using a Glock trigger bar assembly. These were in short supply for a long time. Might still be.

Getting a bad rear frame rail insert can also be a problem. P80 had a bad run of them with sloppy stamping. There are third parties that sell machined rear rail inserts instead of stamped.

To make things really easy, get a a fully assembled slide from alpha shooting sports.

The "complete kits" competing on price often include knock off internal parts, and the tolerance stacking can cause problems that are hard to track down. I'm looking at you, 80P builder.

[Brett Bellmore]

The point of them is to remove gun manufacturers as a convenient choke point for a government bent on disarming its own citizenry.

[verochkax]

Liberal judges are already doing that by not granting summary motions to dismiss, and awarding sanctions, for lawsuits filed that are in clear contravention of the Protection of Lawful Commerce in Arms Act.

Rather, the "judges" are accepting anti-gun organizations' frivolous and "novel" theories, knowing that even if they're reversed on appeal, the manufacturers will have already spent a lot.

And the "conservative" Supreme Court is complicit in allowing it to happen. Because of course, they just MUST let things "percolate."

[Brett Bellmore]

As I frequently remark, most of the justices in the Bruen majority don't actually like the 2nd amendment, (Thomas may be the only exception.) they just were forced by principle to uphold it when confronted with a hard to avoid case.

But it doesn't really offend them when the right is infringed, so they're not in any hurry to take 2nd amendment cases they can easily avoid.

They'd behave completely differently if it were the 1st amendment being treated this way; THAT amendment they actually like, and get ticked off over violations.

[verochkax]

I agree with that, although PLCAA isn’t even a constitutional issue, but a statutory one.

But to your larger point, leftists frequently say the gun industry is the only one with statutory immunity, which is false. The media never corrects them on this.

And the courts don't hold them accountable. If these "novel" theories were dismissed outright, and costs awarded, the filings would stop, real fast.

[SRG2]

leftists frequently say the gun industry is the only one with statutory immunity, which is false.

IIRC the various medical industries have statutory immunity as well. But there's no reason why gun manufacturers should have statutory immunity. And as Brett would no doubt observe, Congress has no constitutional authority to immunise gun manufacturers.

[Brett Bellmore]

Yes and no.

Clearly Congress could immunize gun manufacturers in federal courts. state courts would be outside its reach…

Were it not for the 2nd amendment and Section 5 of the 14th amendment!

The lawsuits we’re talking about are, and openly so, an attack on an explicitly guaranteed civil liberty. Executed using state courts, the very states the 14th amendment commands states to respect.

See, it’s easy to spot the constitutional basis here, if you don’t have a mental block against remembering that gun ownership is a civil liberty.

[verochkax]

It's not a mental block. It's an intentional flouting of the Constitution.

The immunity wouldn't even be necessary if the courts didn't entertain these lawsuits.

[Aubrey LaVentana]

Eschew "crank[ing] out a bunch of these for your buddies" lest BATFE construe you as a manufacturer operating without a license.

Teach your buddies to do it themselves? Legit.

[Voize]

The instructions they include with the kit are intentionally vague and convoluted to make it look difficult.

I think the motivation for them being unclear is not what you suggest, it is this bit of CFR 478.12(c):

When issuing a classification [whether a kit constitutes a partially complete receiver under the regulation], the Director may consider any associated templates, jigs, molds, equipment, tools, instructions, guides, or marketing materials that are sold, distributed, or possessed with the item or kit, or otherwise made available by the seller or distributor of the item or kit to the purchaser or recipient of the item or kit.

The same unfinished blank may qualify or not depending on what other support the seller provides, but if a third party posts an instructional blog entry or video the classification isn't affected.

[Brett Bellmore]

Anyway, timely reminder: They were never "the ATF", you can't drink them, smoke them, or even fire them. Despite their TLA envy, they've been the BATF all along. Now the BATFE, and you can't blow them up either, so the "B" remains.

[dwb68]

Most of this is a red herring. The overall point is that the 80% rule was in place for 50+ years and then the ATF changed its mind. Drill bits, jigs, and so on were not invented in 2022. In fact, people in 1968 were far more likely to know how to machine a receiver and have the tools. Manufacturing things is what we did back then. Heck, the M3 grease gun was made of welded bicycle parts and a spring. Its probably easier to make an m3 from home depot parts than machine an AR15 receiver (yes I've done an AR receiver, and a form 1 supressor. the tolerances trip you up, even with a jig, so my money is still on the very forgiving grease gun).

I predict that the only salient point the Supreme Court will consider is that the ATF decided wholly on its own to rewrite the statute.

[verochkax]

It's really the advent of the internet, and more specifically, Youtube, that has made this an issue when it wasn't in 1968.

[Brett Bellmore]

I think there's a large element of declining federal humility about the extent of their power that you shouldn't discount; Even if they had an exaggerated sense of what they were entitled to do even then, they did have some lingering notion that some things were beyond their lawful jurisdiction.

That's dead in the Democratic party, and dying in the Republican, now. But back in the 60's it still limited what they tried to do.

[dwb68]

No. Shop used to be widely taught in high school. Welding, metal work, etc. The entire workforce came home in 1950 knowing how to make arms up to and including torpedoes. The people making steel and installing transmissions in 1968, the ones who came home from WWII factories that made bombs and torpedoes, didnt need youtube to know how to work metal and make small arms.

[Brett Bellmore]

They still had shop class when I was in HS in the mid 70's. It was loads of fun.