I’ve gone over the alleged — but not published — Notice of Proposed Rule-Making. While this version clearly shows lineage with the earlier leaked draft, some of the more psychotic elements are gone, but replaced with vague, arbitrary arrogations of Congressional authority. It’s almost as if they read my remarks on their draft.
The ATF gives the docket number for this as “ATF 2021R-05.” When this finally appears on Regulations.gov, I intend to file the following comment.
The ATF takes note of the fact that existing law, as written and passed by Congress, does not define “firearm” to include many types of implements including AR-pattern arms with separate upper and lower “receivers,” (split-frame) semiautomatic handguns with separate slides and “frames,” or striker-fired implements. The Notice of Proposed Rule-Making pretends that these are recent innovations that Congress could not have envisioned, and thus the ATF must broaden the language of the law to catch up. I have multiple objections to this.
1. Congress still exists. If Congress, that branch of government constitutionally charged with crafting law, wants a more encompassing definition, it may do so at any time. Congress has had 87 years since the National Firearms Act of 1934, and 53 years since the Gun Control Act of 1968, to broaden the definition. Yet, it has found no need to do so.
2. In fact, striker-fired firearms predated the NFA by 56 years. And it seems odd that the ATF doesn’t appear to know about the existence of the Browning 1911 split-framed pistol. Or the Browning Hi-Power patented in 1923. Such arms existed for decades before Congress chose in 1934 to regulate and tax certain types, yet Congress chose NOT to regulate and tax those that the ATF suddenly finds so troubling. The split-framed AR-15 that confuses the ATF was produced in 1959, and the US military began adopting its fully automatic — and likewise split-framed — cousin in 1964; yet Congress still chose not to include the technology in the later GCA.
3. As the NPRM notes, Courts have been finding for years that split-frame arms are not “firearms” under the law. And yet, still, Congress has chosen not to include them as firearms for regulatory and tax purposes.
4. The ATF is attempting to CHANGE statutory law as written and passed by Congress, not merely clarify definitions. That exceeds the ATF’s scope of authority and arrogates powers constitutionally delegated to Congress alone.
I object more specifically in particular areas.
I. “A. Definition of “Firearm”
“Therefore, to reflect existing case law, this proposed rule would add a sentence at the end of the definition of “firearm” in 27 CFR 478.11 providing that “[t]he term shall include a weapon parts kit that is designed to or may readily be assembled, completed, converted, or restored to expel a projectile by the action of an explosive.””
This adds a definition not in statutory law as written and passed by Congress. That exceeds the ATF’s scope of authority and arrogates powers constitutionally delegated to Congress alone. I find myself repeating that constitutional point that seems to have escaped the ATF. You propose defining inert paperweights as firearms. I suspect the use of recreational pharmaceuticals.
II. “B. Definition of “Frame or Receiver”
1. General definition of “frame or receiver”
Next, the new definition more broadly describes a “frame or receiver” as one that provides housing or a structure designed to hold or integrate any fire control component. Unlike the prior definitions of “frame or receiver” that were rigidly tied to three specific fire control components (i.e., those necessary for the firearm to initiate or complete the firing sequence), the new regulatory definition is intended to be general enough to encompass changes in technology and parts terminology.”
This alters a definition in statutory law as written and passed by Congress. That exceeds the ATF’s scope of authority and arrogates powers constitutionally delegated to Congress alone.
III. “2. Firearm muffler or silencer frame or receiver
Under the NPRM, the term “frame or receiver” means, “in the case of a firearm muffler or firearm silencer, a part of the firearm that, when the complete device is assembled, is visible from the exterior and provides housing or a structure, such as an outer tube or modular piece, designed to hold or integrate one or more essential internal components of the device, including any of the following: baffles, baffling material, or expansion chamber.””
Classifying the WHOLE as the silencer makes some sense. But that logic is exactly the opposite of that used to define PARTS of frames or receivers as a firearms in and of themselves. Thus the ATF once again display its tendency towards seemingly drug-addled inconsistency.
IV. “3. Split or modular frame or receiver
This second supplement explains that ATF may determine “in the case of a firearm with more than one part that provides housing or a structure designed to hold or integrate one or more fire control or essential components” whether one or more specific part(s) of a weapon is the frame or receiver…”
That is not a definition; it is a declaration that “We’ll know it when we see it, but won’t offer a real definition;” yet you give yourselves the alleged authority to declare a part of firearm to be a firearm, and your determination cannot be overruled by the Courts. That exceeds the ATF’s scope of authority and arrogates powers constitutionally delegated to Congress AND to the Courts.
V. “C. Definition of “Readily”
To provide guidance on how the term “readily” is used to classify firearms, including frame or receiver parts kits or weapon parts kits sold with incomplete or unassembled frames or receivers, the NPRM adds this term to 27 CFR 478.11 and 479.11 and defined as “a process that is fairly or reasonably efficient, quick, and easy, but not necessarily the most efficient, speedy, or easy process.” It would further list factors relevant in making this determining to include:”
That’s not a definition; that is a list of seven tests with no stated threshold for any of them. Specific thresholds for each must be stated, or it’s just another vague, “Close enough; we know when we see it; we just can describe it.” The question of recreational pharmaceuticals comes to mind again. Or perhaps medication is NEEDED.
In citing United States v. Seven Miscellaneous Firearms, 503 F. Supp. 565, 574–75 (D.D.C. 1980) as a cut-off, anything that requires less than a master gunsmith in a shop with $65,000 worth of tools and equipment would be “readily converted.
I suggest that a better definition would be: ” ‘Readily converted’ shall mean that the combined costs of completion including parts, materials, tools and equipment, and labor time figured at the federal minimum wage is less than the retail price of a comparative commercially produced firearm. For example, a privately manufactured AR-pattern firearm would be compared to a commercial model such as a JP Rifles SRC-11. A polymer type PMF AR-pattern rifle would be compared to the polymer-“framed” American Tactical Omni Hybrid.
If one must purchase a $2,120 Ghost Gunner 3 to build a $500 AR-pattern rifle, the PMF kit is not “readily converted” to a firearm. A $100 kit completed with a $200 drill press and another $200 worth of hand tools and eight hours of time (combined total $558) to make a $300 handgun is not “readily converted.”
In summary: This proposed rule would arrogate the powers of Congress and the Courts in order to arbitrarily change statutory law. It would regulate PARTS as firearms when Congress itself spent decades choosing to NOT do so. It unnecessarily complicates the issue of what is and is not a firearm, an unduly burdens builders both licensed and private with Byzantine regulations and definitions STILL changeable upon ATF whim. It takes the power of Courts to read the written law and apply it to real world from them, and endows the power upon the ATF bureaucracy.
Rather than engage in this drug-induced rights infringement, I proposed that, in the spirit of “shall not be INFRINGED,” The National Firearms Act of 1934, Gun Control Act of 1968, and all firearm regulations be repealed, and the Bureau of Alcohol, Tobacco, Firearms, and Explosives be permanently disbanded. All former ATF employees should be investigated for civil rights violations under 18 U.S. Code § 242 – Deprivation of rights under color of law.
“Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.”
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