ARES raided!!

[JRH6856]

However that doesn't mean they can't press charges and the more ARES impedes the ATF's efforts to collect the lowers the more likely they will be charged.

What is the likelihood that being charged is exactly what Ares wants so as to create a test case for an appellate or SCOTUS ruling?

 

[Sam1911]

Manufacturing firearms for sale without a license is a felony. Period, end of story. The ATF doesn't have to tell you to stop first and ignorance of the law is no excuse.

That's a specious argument in this case. EP's "common sense" case here is better than the BATFE's. The ATF gets the final say in what the product IS, once they've made that determination, but there's nothing at all in what EP/ARES were doing that indicates they were breaking any law at all before the ATF redefined the product as a firearm.

It isn't beyond the ATF's abilities to declare the item to be a firearm, after review, and to stop their operations. But that's after a change in their interpretation.

So "ignorance of the law" doesn't begin to apply here. Let's not be such a good little collaborator that we condemn the guys on "our" side of the fight beyond what the enforcers of the law are doing.

 

[dogtown tom]

Sam1911

Quote:
Manufacturing firearms for sale without a license is a felony. Period, end of story. The ATF doesn't have to tell you to stop first and ignorance of the law is no excuse.

That's a specious argument in this case. EP's "common sense" case here is better than the BATFE's. The ATF gets the final say in what the product IS, once they've made that determination, but there's nothing at all in what EP/ARES were doing that indicates they were breaking any law at all before the ATF redefined the product as a firearm.

I don't agree that it is specious. Federal law defines what is a firearm and ATF has the regulatory authority to determine if it is a firearm or readily convertible to a firearm. No law or regulation requires that anything be submitted to ATF for their determination, but smart guys do exactly that.

 

[wildbilll]

I read an article today that described the attorney now handling this matter for the "defendants". It is the same one that did the Peruta appeal.

http://www.examiner.com/article/are...g-taken-off-calendar-as-more-questions-emerge

of interest in the article is this:

That said, because simply purchasing a “firearm” (assuming the precursor receivers are “firearms under the law) from a non-dealer is not a federal crime, the feeling is individuals who purchase a single EP lower may be viewed more as witnesses, as opposed to suspects, although that should not be assumed and all cautions apply. Expect law enforcement, for obvious reasons, to focus on those who bought these lowers in quantity.

The individuals who purchased these blocks of polymer had no intent to break any laws.

 

[goon]

I will say that I think the majority of gun owners I come across would look at a gun built at home on an 80% lower with curiosity. I can't think of any who'd be horrified at the idea. Most would be fascinated, especially if it worked. Many of us don't worry that much about 4473's, but I don't know anyone who straight-up would never want a gun that has no paper trail.

I once shot an AR that a machinist made at home from scratch - from a billet of aluminum - then snapped a complete Carbine upper on. It worked and of the dozen guys at the range that day, every single one of us wanted to try a few shots out of it.

 

[goon]

That said, because simply purchasing a “firearm” (assuming the precursor receivers are “firearms under the law) from a non-dealer is not a federal crime, the feeling is individuals who purchase a single EP lower may be viewed more as witnesses, as opposed to suspects, although that should not be assumed and all cautions apply. Expect law enforcement, for obvious reasons, to focus on those who bought these lowers in quantity.

I know you're just quoting the article, but buying lowers in quantity also doesn't make you a criminal.

First, the buyers weren't buying "lowers" because these weren't firearms... they were just blocks of polymer until the ATF decided they were "firearms."

Second, when I look at the $59 blemished lowers that PSA sells or some of the deals at Aero Precision, I'd love to be able to buy a few lowers just to have around. I'd like to be able to build at a future date and possibly to have a couple on hand as investments. Just having them for personal use or as an investment doesn't make one a criminal.

As I said, I know you're just quoting an article.

Sadly, I have spoken with and met ATF agents before and they were actually helpful people. They seemed like decent folk who weren't out to get gun owners. A few months ago there was a rash of smash-and-grabs on local gun stores and the ATF showed up to investigate. Their efforts, along with local and state police, resulted in the guilty parties being caught. I'm supportive of that because I don't want criminals to have guns.

I just wish their agency would get its head on straight and stop setting people up for failure.

 

[JSH1]

It isn't beyond the ATF's abilities to declare the item to be a firearm, after review, and to stop their operations. But that's after a change in their interpretation.

I see no evidence that the ATF changed their interpretation. So far no one as said that EP Armor submitted a lower to the ATF, the ATF declared that lower not a firearm, and then at a later date changed their mind and declare that lower a firearm. All indications are that EP never bothered to submit a sample and instead started manufacturing something that they thought was not a firearm.

I once shot an AR that a machinist made at home from scratch - from a billet of aluminum - then snapped a complete Carbine upper on. It worked and of the dozen guys at the range that day, every single one of us wanted to try a few shots out of it.

As would I. My father was a machinist and I have nothing but respect for the amount of talent it takes to machine something from scratch. That is making a firearm in the true sense of the word.

I know you're just quoting the article, but buying lowers in quantity also doesn't make you a criminal.

It does give a good indication that you are a dealer selling them to retail customers though and someone that the ATF will want to visit. A individual may buy 5, 10 lowers but when you get into the hundreds or thousands that is most likely a retailer.

First, the buyers weren't buying "lowers" because these weren't firearms... they were just blocks of polymer until the ATF decided they were "firearms."

No they are not blocks of polymer. They are firearms that someone told you were blocks of polymer. There is very little chance that the ATF would go after the final customer and charge them with anything. I would expect them to show up at the door and ask for the block of polymer that is a firearm.

 

[wildbilll]

Why am I posting this in this thread? Because it speaks to the determination letters that someone may or may not ask for, may or may not have received in the way they desired.
For those who feel the BATFE is god, whatever they say is the final word on legality, here is an article that shows an "arbitrary and capricious manner" (not my words)
The courts can and do provide some relief from time to time.

http://www.courthousenews.com/2014/03/20/66348.htm

This one is about a determination letter that the maker of a non-silencer didn't agree with when the agency decided it was really a silencer.
This one is a can of worms if they were to start actually using hard data to make these determinations. If they decide it reduces sould level by a certain amount (therefore a silencer) they can run into problems where they have arbitrarily granted other muzzle breaks that may actually reduce sound levels even further. The mess gets messier from there.

Enjoy the read. I'm sure others here can ferret out more of the implication of this ruling as it applies in the Ares/EP matters.

 

[goon]

No they are not blocks of polymer. They are firearms that someone told you were blocks of polymer. There is very little chance that the ATF would go after the final customer and charge them with anything. I would expect them to show up at the door and ask for the block of polymer that is a firearm.

By that argument, isn't every block of aluminum that's maybe a foot long by three inches square also a firearm? What if someone takes such a block of aluminum and grinds it more and more to the shape of a lower receiver? When does it morph from a block of aluminum into a "firearm?"
That's what the issue is here.
There needs to be a solid definition of what is a firearm and what is not. Just allowing a government agency to arbitrarily keep redefining that sets a bad precedent.

 

[CoalTrain49]

I think there is a very good chance that some people here who think they know what the ATF is doing and why they are doing it have never worked for any government agency.

Most people have no clue what goes on in government, especially the federal government. A good number of the people who work in government are not supervised and their jobs become exactly what they think they should be because of it.

I once had a very smart supervisor who sought legal council before he acted. Even then he didn't have a good hand because the best legal council generally doesn't work in government.

One of the reasons that gov't employees are never fired is because everyone understands that they lack direction and are poorly managed.

Good attorneys like to drag the gov't into court. They like insurance companies too.

 

[barnbwt]

"I see no evidence that the ATF changed their interpretation. So far no one as said that EP Armor submitted a lower to the ATF, the ATF declared that lower not a firearm, and then at a later date changed their mind and declare that lower a firearm. All indications are that EP never bothered to submit a sample and instead started manufacturing something that they thought was not a firearm."

Really? I was under the impression (and have read second hand*) that EP did in fact have an approval letter. Which would make sense in light of their other (rejected) determination letter --they obviously conversed with the ATF Tech Branch in this manner. The ATF alleges --with tenuous arguments at best-- that EP changed their process so it was no longer consistent with that prior approval, and thus it was no longer applicable, and that part of that new process involved creating a legal firearm. ATF also alleges they do not know when the change occurred, or if they issued the initial approval as part of a misunderstanding of EP's process in the first place, and EP alleges the ATF is now willfully misunderstanding the actual and approved process (ostensibly to shut them down).

"I think there is a very good chance that some people here who think they know what the ATF is doing and why they are doing it have never worked for any government agency."
Yup. Lots of folks here attributing conspiratorial competence to, or putting faith in these agencies which deserve neither. I fully expect all (not "most") ATF agents are as confused about this as we are, and try to go about their nebulous jobs in the ways that are least likely to get them fired/reprimanded. Not surprisingly, this is not sufficient for a system to be well managed and effective.

"By that argument, isn't every block of aluminum that's maybe a foot long by three inches square also a firearm? What if someone takes such a block of aluminum and grinds it more and more to the shape of a lower receiver? When does it morph from a block of aluminum into a "firearm?"
That's what the issue is here.
There needs to be a solid definition of what is a firearm and what is not. Just allowing a government agency to arbitrarily keep redefining that sets a bad precedent."
It goes to even baser principles than this. I submit there cannot be a solid definition of a firearm so long as the practice of prosecuting adjacent objects goes on. Think about it; whatever the ATF defines as a firearm, once step adjacent to it is 'readily convertible' and therefore a firearm, as is the item next to it, therefore, and so on it goes. Each step takes time and paperwork and is logically harder to defend as a 'functional gun,' but the progression is inevitable. The law of precedent only works to further increase restriction, it cannot reverse itself without outside action (courts).

To me, the only way to remedy the obvious separation of powers issues that is the ATF, is to split the determination/categorization function from the enforcement mechanism. That way, while you still don't have congress writing the law (as would be desired, but which is impractical for technical/detailed matters), you at least don't have the cops writing the law at the same time they enforce it (the very definition of law-enforcement corruption, by the way). Find some way to force these two independent groups to have crossed motives as well as some checks and balances, and you have the potential for an intelligently run system.

TCB

 

[Field Tester]

No it is not against the law to not submit a sample to the ATF but it is the prudent thing to do since it is the ATF that decides if that lower is a firearm or not. EP Armory gambled and lost. They thought their lower was legal but it turns out it is not and it was a big gamble considering that getting it wrong means committing a felony.

That doesn't jive at all with what you wrote a few posts back.

"All of that has nothing to do with the issue at hand. Ares and EP Armory were raided for selling firearms without a license. If you are going to be in business you have to follow the law. If you don't, expect a knock on the door some day."

Either it is illegal or it isn't, you can't have it both ways.

This is not subject to a change of mind on part of the BATFE or is it in the court of public opinion. Someone thinking it's wrong or illegal doesn't make it such, the written law does.

 

[JRH6856]

<deleted - unnecessary>

 

[Field Tester]

Yes to both of your questions.

 

[larryh1108]

It is true that the ATF has no set guidelines for what an 80% receiver actually is. As mentioned earlier, there are so many variations that I believe it would be impossible to define. The only way around the vague law would be, IMO, a specific guideline saying if you want an 80% excluded part, it has to conform EXACTLY to this blueprint. Any deviation will render it a firearm.

This still allows companies to make 80% receivers. This will prevent people from getting ideas on how to bypass the system. If they want to make one, they do it this way. Simple and concise.

Or, they can use the pop tart rule and say if it looks like a gun, it is a gun. Also simple.

 

[wildbilll]

Actually, all they have to do is publish a set of guidelines for all to see, let it be subject to public input. Just like other federal agencies do.
Right now, they either have such documentation internally or they are guilty of arbitrary and capricious actions.

 

[JSH1]

That doesn't jive at all with what you wrote a few posts back.

"All of that has nothing to do with the issue at hand. Ares and EP Armory were raided for selling firearms without a license. If you are going to be in business you have to follow the law. If you don't, expect a knock on the door some day."

Either it is illegal or it isn't, you can't have it both ways.

I'm not trying to have it both ways.

EP Armory was manufacturing AND selling the lowers. ARES was selling the lowers. In either case, if you are going to manufacture and/or sell something you have to follow the law.

If you are going to try to walk the absolute edge between a block of plastic and firearm it would be wise to submit a sample to be sure the ATF agrees with your logic. In addition, if you are going to be a distributor or retailer of that item you should have your own letter because every letter I have see specifically states that it only applies to the company / person that submitted the sample for review.

By that argument, isn't every block of aluminum that's maybe a foot long by three inches square also a firearm? What if someone takes such a block of aluminum and grinds it more and more to the shape of a lower receiver? When does it morph from a block of aluminum into a "firearm?"
That's what the issue is here.
There needs to be a solid definition of what is a firearm and what is not.

Under current law it morphs into a firearm when it is readily convertible. In current law there is no defined definition of readily convertible and it is left up to the ATF to make that determination. Maybe there should be a exact definition of readily convertible but there isn't right now. When you are in business you have to follow the law as written not how you think it should be.

 

[wildbilll]

I wish I could see which law that Ares and/or EP was not following.

 

[JRH6856]

Actually, all they have to do is publish a set of guidelines for all to see, let it be subject to public input. Just like other federal agencies do.
Right now, they either have such documentation internally or they are guilty of arbitrary and capricious actions.

If ATF published guidelines, then all anyone would have to do is follow the guidelines w/o asking for a determination and it would be harder for ATF to track who is making the 80% lowers. As it is now, every request for a determination creates an entry in a database,

 

[CoalTrain49]

I wish I could see which law that Ares and/or EP was not following.

I think this one will go down the same road as the Abramski v US case (straw purchase).

http://gunwatch.blogspot.com/2014/01/supreme-court-oral-arguments-focus-on.html

The oral arguments in the case of Abramski v. United States, where the Supreme Court is determining if the ATF can change the definition of what is a "straw buyer" without a change in the statute, and whether a person who transfers a firearm to someone who can legally posses the firearm is involved in a "straw purchase". The ATF had one interpretation of the statute from the implementation of the law in 1968 until 1994, 26 years later. Then they started a different interpretation of the law under the Clinton regime.

The arguments did not seem to go well for the government, as several of the justices focused on the ATF change in interpretation of the law, which occurred in 1994, without a change in the statute. From Mr. Dietz, the defendants attorney:

 

[goon]

Under current law it morphs into a firearm when it is readily convertible. In current law there is no defined definition of readily convertible and it is left up to the ATF to make that determination. Maybe there should be a exact definition of readily convertible but there isn't right now. When you are in business you have to follow the law as written not how you think it should be.

Readily convertible will always be subjective. Last week an 80% lower wasn't "readily convertible." This week, it is. Next week, maybe a 12 inch section of seamless steel tubing will be deemed "readily convertible."

The law should be clear so that people either violate it or they don't, and so they know whether they'll be violating it before they violate it.

We need a hard definition of what is and is not legal.

EP Armory was manufacturing AND selling the lowers. ARES was selling the lowers. In either case, if you are going to manufacture and/or sell something you have to follow the law.

Allegedly manufacturing.
Or maybe they weren't manufacturing anything other than a block of polymer.
Courts decide that though, not guys like us who pontificate on the internet.


And even if it's hard to set an exact line in the sand for every possible almost firearm that could be produced, there's no reason that a hard determination couldn't be made for the most common handful.
Why not just have hard determinations in place for 80% AR, AK, 1911, Uzi, Sten, and any others that are commonly built from a kit?

 

[powder]

It has everything to do with Ares and EP Armory's situation. I haven't seen anything that says EP submitted their lower for approval before starting to manufacturer and sell them.

Please show me the statute which says they had to submit a "sample" for pre-approval, before sale; there isn't one.

ARES used the law, so to speak, and it was up to the buyers to notify the ATF that they the purchasers MAY HAVE changed the lowers, from that state of production as it had been sold.

Same exact statute which puts the responsibility of the purchaser to notify the ATF that they have changed a pistol, to an SBR, by putting a stock on it. Same difference.

 

[Frank Ettin]

Please show me the statute which says they had to submit a "sample" for pre-approval, before sale; there isn't one....

True, there isn't one. But it's something that is often done, is an excellent way to minimize the likelihood of unpleasant surprises, and is a very wise business practice.

 

[basicblur]

My bad if this has already been covered (maybe I'll go back and read the 10 pages in this post later), but here's some info from both Tom Gresham and AAR podcasts this week:
1. The manufacturer of the polymer lowers started adding pink polymer to areas that had to be removed in order to complete the lower.
2. The ATF says they are manufacturing a firearm by completing the lower (AFA no material in areas normally solid on 80% lowers), then they're trying to "unmake" a firearm by adding the pink polymer.
3. The lower maker says they are pouring both polymers at the same time (as opposed to making a complete lower, and adding the pink polymer).

I'm always keeping an eye out on ATF tactics, but 80% lowers ain't my cup o' tea.

I forwarded all the info I've run across to my local gun shop - he told me he apparently had a visit from the ATF the other day.
A couple of first-timers came into his shop and went directly to his display case where he has his completed lowers on display. Guy asked him if he had any 80% lowers - shop told him he didn't mess with 'em - all his lowers were sold as firearms, serial # and all.
Guy then inquired about buying a pistol grip shotgun, but said he lives in Massachusetts!
The shop owner told him he didn't think he'd be able to help him with anything.

I guess the 80% lower hunt has made it all the way across the country?

 

[barnbwt]

"The only way around the vague law would be, IMO, a specific guideline saying if you want an 80% excluded part, it has to conform EXACTLY to this blueprint. Any deviation will render it a firearm."

The problem with this whole line of reasoning is that, at the end of the day, an 80% whatever isn't a gun, and is therefore none of the ATF's darn business. Think about it; a chunk of pipe is a STEN tube, yet is also arguably not a gun part. How do you rationalize the ATF approving every combination of tubing length and internal diameter? A plate of sheet metal with a template glued or etched to it is a JACO pistol sideplate. Again, how do you rationalize it? A billet takes just as much skill to CNC as a raw forging; are they equivalent? One is undeniably intended to become a receiver, why not treat it as one?

Were the law to focus on reality rather than potential reality, this would be far simpler. It can shoot bullets or it can't, you sold something that shoots bullets or you didn't, you did it for profit or you didn't. I am more and more convinced as I look at this that the whole "readily converted" language that was originally inserted as a means to slightly broaden the law with faith that it would interpreted rationally, has since become distorted to justify abuses of power to rival perhaps only the Commerce Clause of the US constitution.

Giving an inch will not yield a mile, but if you keep allowing them more inches...

TCB