Alcohol, Tobacco and Violating Citizen Rights

Something needs to be done about the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Even though our nation’s firearm laws are clearly a disaster area, that does not mean that an executive branch agency has the right to make up laws or to violate the rights of Americans — but that is exactly what they’ve been doing since their inception in 1972.

An agency that performs all three functions of government without any supervision from voters is tyrannical by definition.

In fact, US government shenanigans involving alcohol, tobacco, firearms and explosives pre-date the formation of the ATF, but for the sake of brevity, I will only comment on the two most recent issues.

In August of 2020, the ATF sent a cease-and-desist letter to a firearm manufacturing company called Q, LLC (no relation to the conspiracy theorists). It demanded that they stop making and selling guns with a barrel under 16″ and their new pistol brace (the Honey Badger) due to the ATF’s determination that the brace was actually a stock. This meant that these guns that were being sold as pistols were (from the ATF’s perspective) actually short-barreled rifles, so they should go through the full NFA process (registration, full background check, and $200 fee) instead of the simpler background check process.

The biggest problem with the Honey Badger letter was that a “pistol brace” isn’t something that has been defined by law. Instead, it came into legal existence when the ATF made it so in 2014. The clear problem is that executive branch agencies are supposed to executive the law, not create the law or interpret the law — according to the doctrine of balance of powers, those functions are reserved for the legislature and the courts. So while the ATF might have had a noble reason for allowing pistol braces (e.g., compliance with the ADA), that was not their decision to make. Conservatives get very dramatic about the “tyranny” of the ATF, but take away the drama and you’ll find that they are factually 100% correct — so that drama might just be justified.

The latest problem is the ATF raid of Polymer80, a company that manufactures 80% receivers. The “receiver” is the part of a gun that is legally a gun. (Fun fact: It looks like the AR-15 doesn’t have a receiver according to the law, so it might not legally be a gun.) The problem with this is a variation on the Ship of Theseus problem in philosophy — namely, at what point does the steel or aluminum material “become” a receiver which must be serialized and sold through a government-licensed firearm dealer? The ATF decided that a receiver which is 80% complete is not a receiver, and a receiver that is 81% or more complete is a receiver, and they have created more specific guidelines about what 80% complete looks like for various types of guns. Again, all of these determinations were created without the assistance of the legislature or the courts.

In December of 2020, the ATF raided Polymer80 — not because they were selling 81% complete receivers, but because the ATF had suddenly changed their interpretation of the law. Now, the ATF is claiming that if you sell an 80% receiver (not legally a gun) along with all the components and tooling required to make it into a functional gun (none of these components or tooling are regulated in any way), then you’ve crossed the 80% threshold and are selling something that is a firearm. If you sell the components, tooling, and 80% receiver separately, it’s OK — only if you sell them in one box with a single part number have you violated the law.

Not only did the ATF raid Polymer80, but they are also harassing people who purchased a Polymer80 kit directly from the company and demanding that they surrender their property. To their credit, other retailers are refusing to surrender their customer lists to the ATF, but they could eventually be raided as well.

The history of American gun laws consists of panicked, low-information voters freaking out about something that was usually brought to their attention by the media, which had sensationalized the issue for the sake of attracting viewers. In 1932, the motivation for the original federal gun laws was sensational news stories about gangsters and movies depicting them as far more well-armed and dangerous than was accurate. No one ever scientifically determined that a short barreled rifle, for example, is more dangerous to the public; that would be the issue in the Q Honey Badger case.

The Polymer80 case is about “ghost guns” which are firearms that were manufactured by a person at home for their own use — more accurately called “homemade guns”. Such practice is completely legal in the United States (the guns are not required to be serialized or registered, but can’t be transferred to another person), but does create an additional opportunity for a person who would usually be prohibited from obtaining a firearm.

The question, though, is whether homemade firearms are a significant danger to the public that requires a change in the law — and the violence required to enforce that law. There’s no evidence that this is the case. The law presumes that a person who previously committed a felony but is now free (having “paid their debt”) is a “felon” and can never be trusted with a firearm again. I don’t make that presumption; however, let’s accept the idea of a “felon” for the moment. Are there other means by which a felon can obtain a firearm? Why, yes! They might purchase one through a private sale — which is specifically not regulated. They might obtain a muzzle-loading revolver — it isn’t legally a gun, so it is completely unregulated. They might steal a gun or obtain a stolen gun through a black market seller.

Is there any evidence that homemade firearms significantly increase the danger to the public? The answer is that there’s no data supporting the idea that these homemade guns significantly increase the danger to anyone. It certainly might be true, but that’s yet to be seen — 30% of guns recovered by law enforcement during investigations lack serial numbers, apparently, but so what? As with any law, we have to decide whether the harm caused by the issue at hand is greater than the violence required to enforce this potential new law, and we should do that with facts, not fear that is disconnected from reality.

Consider this, though: If homemade guns are scary because they can’t be traced, then how do we mainly know about them from all the times federal agents have traced them and arrested people? When you buy an 80% receiver kit online, the government does know about it thanks to the pervasive surveillance state we all live under now. It’s true that if you buy a kit, build it, and then sell it, the gun becomes somewhat “untraceable”, but if someone buys a lot of them, they will be investigated as an individual who is manufacturing firearms without a federal license. Everyone who tries to make a business of unserialized firearms in this manner gets caught. There is no epidemic of ghost guns. There might be an epidemic of people who think buying an 80% kit and manufacturing a firearm at home somehow protects them from government tyranny; I sincerely appreciate their optimism.

Traceability is, in fact, a bit of a joke, generally. The way gun tracing works is that first, law enforcement has to have the gun. TV fiction tells us that an expended bullet or an empty case from a 9mm can be traced to a specific gun in a computer database that will tell you the name and address of the current owner (with a photo!), but that’s not really true. (Ballistics are used during a trial to try to tie a bullet to a specific gun, but that has nothing to do with whether the gun has a serial number.)

The second step of tracing a gun is that the government requests that the manufacturer tell them which gun shop received the gun. Third, the government goes to the gun shop and has to go through their physical paperwork to find the initial purchaser of the gun. If the initial purchaser sold the gun (or says it was stolen), that is the end of the trail because only the initial purchase is regulated by US law. How is this different from a “ghost gun”?

It’s easy to get bogged down in the complexity of firearm law. The most important thing, though, is that the ATF should not be interpreting and creating law. An agency that performs all three functions of government without any supervision from voters is tyrannical by definition. It appears as if ATF’s motivation for these changes in policy is that individuals are bragging publicly about skirting the law (often on YouTube) — even though they are actually complying with the law — and that makes the ATF feel less manly, provoking the dominance display of a strongly-worded letter or raid. If you truly care about democracy, then something needs to be done about the ATF. If you feel that something should be done about US firearm law, then the correct solution is for coherent, ethical law to be created by informed individuals, rather than the incoherent disaster area that US firearm law is currently. As much as the ATF needs to be addressed, US Congress is the original source of the problem.

Related: Homemade Guns: Are They Legal? Must They Be Registered?

We all appreciate Polymer80, Brownell’s, Q, LLC and the other companies that are standing up to the ATF to the best of their ability.

Notes on my opinion of these specific laws
Mid-Missouri John Brown Gun Club is a completely non-hierarchical organization — no member’s opinion on anything is a reflection of the opinion of the club as a whole.

My opinion of the short-barreled rifle issue is that:
1. Short-barreled rifles are not more dangerous than other rifles and should not require additional hurdles for ownership.
2. A brace is a type of stock. Functionally speaking, a stock is any device used to steady a weapon.
3. A gun with a stock (or other device for steadying it) is not more dangerous to the public than a gun without a stock. Accuracy is not a problem.

My opinion of the homemade gun issue is that:
1. People should have the right to make homemade guns.
2. Felons who have served their time should have their rights restored, or there should at least be a procedure by which they might have their rights restored.
3. If guns are required to have a serial number, then all guns should be required to have a serial number.
4. The receiver is a poor choice for the part that should be serialized, if we presume that serialization is a benefit to society.
5. I do not presume that serialization is a benefit to society.