ARES raided!!

Discussion in 'Legal' started by Maggie, Mar 15, 2014.

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  1. Dave Workman

    Dave Workman Member

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    Codrea, Hofmann and myself have written quite a bit about this

    google

    David Codrea Gun Rights Examiner

    Kurt Hofmann St. Louis Gun Rights Examiner

    Dave Workman Seattle Gun Rights Examiner

    I've actually spoken to CEO Dimitrios Karras twice...
     
  2. JRH6856

    JRH6856 Member

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    Dave Workman,

    On the page titled Allegations fly in California gun parts case, the last line of the 6th paragraph says "Once the lower receiver is finished, that becomes a firearm under definition of law, and it must have a serial number."

    That is actually little misleading. The lower receiver is finished enough to be considered a firearm when BATFE says it is. And there as no way that can be known for a particular example without asking BATFE for a determination. When BATFE makes such a determination, they issue a letter. Do you know if Ares or EP ever asked for a determination?

    Oh, and it only requires a serial number if it is sold or transferred.
     
  3. Bubbles

    Bubbles Member

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    False, it only requires a s/n if a manufacturer finishes it. If an individual does it the gun can remain sterile forever, even if it changes hands. We see pre-1968 guns all the time with no s/n because they weren't required before GCA '68.
     
  4. Sam1911

    Sam1911 Moderator Emeritus

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    According to the law, not even then...

    When the ATF has said that a home-made gun must be marked prior to sale, the law they point to as proof does not apply to unlicensed home builders constructing Title I firearms.
     
  5. CoalTrain49

    CoalTrain49 Member

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    I just read the link. Thanks for posting that.

    Is the BATFE becoming the IRS with their 74,000 pages of instruction and code?

    Does anyone realize the time, money and effort wasted because the fed just keeps adding mountains of regulations that they have no way to enforce. There is a reason only half of the people in this country pay any fed taxes. The IRS code gets bigger and more complex every year and every year fewer people pay their taxes.

    Soon enough you will be able to cast every part you need (except the upper) to build an AR in your garage. Then how many AR's will be "home made". Ten people get together and buy the molds and pass them around. Not one of those guns is purchased or sold and everyone was built at home sort of like manufacturing a custom car with some parts fabricated and some purchased.

    The BATFE is chasing a rainbow just like the IRS. Until the code is simplified so people can understand it and believe it to be fair people will continue to evade it just like paying taxes. With the reduction in the size of the fed gov't it seems the fed will have to figure out another approach.

    I have some ideas but with my limited knowledge of the AR I would rather just listen.

    Maybe someone has some ideas here so when BATFE reads this, and I'm sure they will, we can help them accomplish their mission with fewer problems. After all, we all like to do things legally.
     
  6. JRH6856

    JRH6856 Member

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    But we aren't discussing pre-1968 "80% lowers". I understand home-made firearms do not have to be serialized or marked if made for personal use, but I thought that post '68, they did if sold. It does seem this is not so at the federal level. My bad. Is this also true at state level in all states?
     
  7. JRH6856

    JRH6856 Member

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    As a CT state senator recently said, "When you pass laws that most of the people ignore, you have a real problem."
     
  8. wildbilll

    wildbilll Member

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    The BATFE has repeatedly stated in determination letters that there are 5 operations that must not be done on a AR type lower if the "80%" lower is not to be deemed a firearm.
    We have at least one document (Affidavit) that tell us that BATFE thinks the polymer80's were first formed and the trigger well insert made from the lighter colored material was put in after the fact.
    We have Ares Armor’s Dimitrios Karras refuting that.
    He also stated that they (BATFE) were willing to take the lowers off his hands (along with the customer list) and that would be the end of the matter for Ares.
    We also know from his statements and the affidavit of the BATFE rep that they would return them later if they determined they were in fact not yet firearms, meaning they were not sure.
    We know they are still selling the metal "80%" lowers on the EP website, not the Polymer ones.

    It appears that the BATFE is going to move the goal posts and claim that the "80%" lowers will need to be a monolithic, homogenous material (such as is aluminum) in order to be compliant.
    This is the only way to justify their actions.
    The problem is, all of the written guidance from them never hinged on plastic or metal. Just the 5 operations to remain unfinished.

    http://cdn.shopify.com/s/files/1/0218/5770/files/ATF_Letter_Public_Release.pdf?125

    http://www.kearms.com/atf-letter

    I'm sure there are more out there to be found by us. It took 2 minutes to find these examples.
    The wording in each letter is nearly identical. The wording about 5 remaining operations are identical. The letters only reference a "casting" as to the material used in the submitted samples. And it is obvious that the polymer lowers are indeed "cast".
    This is why I said they only course for BATFE is to take now is to nuance the fact that there is a color change that makes it too easy to finish the part into a firearm.
    The counter argument to this is that the fact that it's polymer means it's also easy to screw it up with less effort and ruin it.
     
  9. JRH6856

    JRH6856 Member

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    wildbill,

    Regardless of how many letters you find, one similarity they are almost certain to have is the following:

    "…the information found in correspondence from our Branch is intended only for use by the addressed individual or company with regard to a specific scenario described within that correspondence."

    Which makes it pretty clear that it is not intended to be a statement of general guidance for anyone else.
     
  10. wildbilll

    wildbilll Member

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    Exactly. They hand out these letters, all pretty much identical in what they say. Somewhere inside the BATFE is a policy that spells out what is approvable, and these letters are based on a sample letter they have for internal use. If they just decide on a case by case basis with no official guidance or if it's based on the mood of the examiner of the part, that is called arbitrary and capricious. From there it gets worse for BATFE as to the civil rights violations.
    If Company A and B make the same part and BATFE gives Company A the determination of non-firearm, and Company B doesn't even bother to submit a sample, Company B is still entitled to the same protections as Company A. It doesn't matter what that little disclaimer says. The disclaimer is saying that "we make it all up as we go along". At the end of the day, there is no permit or license required to make these "80%" receivers.

    Now we move to the courtroom. Ultimately, the BATFE will be asked:

    Do you assert a regulatory authority (CFR) to pre-screen these parts to determine if they are non-firearms? Yes or No.

    As a regulatory agency of the US government, if a part is not a firearm, what CFR requires a determination letter that the part is a non-firearm before it can be legally sold?

    If EP had submitted the AR type lower sample with the 5 operations remaining to be performed (like all of the other samples BATFE has issued a determination letter on), would BATFE have issued a determination that is was not a firearm?

    If someone submits a AR type lower sample and it does not yet have the 5 operations performed that all of your determination letters describe, will it be deemed a non-firearm?

    Has BATFE now determined these parts are now indeed firearms? Why?
     
    Last edited: Mar 19, 2014
  11. 316SS

    316SS Member

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    Despite the claims that if EP/Ares had only played ball with the BATF and gotten a determination letter then all this unpleasantness could have been avoided, a determination can evidently be made at any time without justification. If the BATF can make a determination on a whim without evidence to support their claims, then they can just as easily make a re-determination the same way. All a determination letter means is that they have decided you are not a criminal, for now. They reserve the right to change their minds and break down your door.
     
  12. AlexanderA
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    AlexanderA Member

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    wildbill wrote:

    It's not as cut and dried as this seems to imply. The quoted ruling letter simply said that that particular submitted example was not completed enough to be considered a firearm.

    My understanding is that there are basically 3 different ways to make an AR-15 lower receiver that qualifies as a "non-gun" --
    1. Leaving the fire control group pocket (including the associated holes) solid.
    2. Leaving the magazine well solid.
    3. Leaving the buffer tube hole undrilled/unthreaded.

    It appears that a "non-gun" receiver using method (1) would be the easiest for a home builder to complete. Therefore that's the method used by the vast majority of the "non-gun" receiver makers.
     
  13. barnbwt

    barnbwt member

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    Vague-er-er than that, even. What new 80% makers go off of if they don't get explicit approval (and ongoing supplementary approval as well, apparently) is the expectation the ATF will make a similar determination as what they have done in the past. In the case of AR lowers, the ATF made dozens, and dozens, and dozens (and probably more dozens) of nearly-identical determinations over the years approving designs with:

    "1. Leaving the fire control group pocket (including the associated holes) solid.
    2. Leaving the magazine well solid.
    3. Leaving the buffer tube hole undrilled/unthreaded."

    And requesting that submissions which did not receive approval include them as well (and then approving them). It's hard to argue that doesn't establish precedent, because it most certainly does, but because the ATF is not a court of law, that really doesn't amount to a hill of beans at the end of the day. The expectation of their opinion remaining the same on lowers was nothing more than that.

    I believe there are also rapid-prototyped lowers out there which utilize two-color plastics to denote the areas to be removed. Unlike the EP lowers, those two materials truly are identical and differ only in color; EP has a fiber reinforced wrapper around a solid plastic core section. ATF probably isn't pursuing those because they don't want to have to be the ones to prove in court they can be readily made into functional firearms :D (RP isn't the most dimensionally consistent stuff, and you'd have a dickens of a time removing just the off-color plastic and expecting the gun to work)

    Another fun fact; the EP core has ridges cut into it which key it to the pocket walls of the "lower" as it is cast around it (defeating the ATF argument on its face). Moreover, this means that merely removing the "self-guiding" 80%'s filler material is not enough to complete the firearm; those ridges must be removed back to a measured position and the holes precisely drilled as well. That really does make the operation not hugely different from completing an Aluminum 80% by following a scribed or marked line with a manual mill. In the past, tooling and material hardness have not been criteria for determining whether a receiver is complete (I've only seen that line of thought applied toward determining whether a semi-auto system can be readily converted to full auto; a legal AR15 receiver can be converted to an M16 about as easier than one of these lowers can be finished out, fwiw, and an AK even faster)

    TCB
     
  14. barnbwt

    barnbwt member

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    "Despite the claims that if EP/Ares had only played ball with the BATF and gotten a determination letter then all this unpleasantness could have been avoided, a determination can evidently be made at any time without justification. If the BATF can make a determination on a whim without evidence to support their claims, then they can just as easily make a re-determination the same way. All a determination letter means is that they have decided you are not a criminal, for now. They reserve the right to change their minds and break down your door."

    I implore all gun owners to read this over and over until you become angry and sick of the BATFE. I would love to see congress try to pass a resolution recognizing the BATFE's ability to act in this manner with their blessing. That the BATFE retains the authority to define reality, as well as enforce it. Do not ever forget they required a shoelace be registered as a machine gun, whose possession by an unregistered person without a firearm would result in a decade in prison, and that the same person found in possession of the other (unregistered/machine-gun-ed) shoelace from the original package in addition to an AR15 would be untouchable. I think it took something like 10 years for them to delete that idiocy from their books.

    The same agency also argued that the landmark SBR case ATF v. T/C --which had to do with switch barrels/stocks making pistols into rifles and back again-- only applied to the specific Thompson Contender gun model involved in the case for a solid decade or so before stating it actually applied to all pistols turned-rifles-and-back in 2010 or so. It remains illegal to turn a rifle into a pistol and back by changing the stocks/barrel, despite the configurations being indistinguishable from those derived from a firearm initially sold as a pistol.

    TCB
     
  15. wildbilll

    wildbilll Member

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    Of course, there are probably even more ways to make it be a non-firearm, but this is the most prevalent. So keeping apples to apples and not mixing in Oranges, there will be submissions of lowers that have the 5 operations remaining to be completed, they would all receive the same letter and there is no reason, based on the letters discovered so far, that suggests that EP wouldn't have received the same basic letter.
    It's the identically to what is described in the letters that tells me they are compliant. And it would be same conclusion any reasonable person come to.

    They do keep changing the rules, but they would need to make everyone change, not just one. Here is a copy of a letter from 2009 where they were allowing the selector hole to be finished, leaving just 4 operations to complete it:
    http://i649.photobucket.com/albums/uu212/ke6guj/80-determination.jpg

    Here is one they rejected once they "changed their minds":
    http://www.quentindefense.com/downloads/ATF%20Letter%20Non%20Gun.pdf
     
    Last edited: Mar 19, 2014
  16. alsaqr

    alsaqr Member

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    i've been sick and angry since 1979 when that rogue BATF SAC demanded i, a US Army M/Sgt., lie to a federal judge about the disposition of some 500,000 rounds of ammunition the BATFE confiscated from a doctor. The judge ordered the ammo ruturned but the BATF could not produce it. The SAC wanted me to swear under oath that the BATF gave the ammo to my EOD unit for disposal: A bald faced lie. That scheming little weasel threatened me for refusing to lie. An Army CID agent told the SAC to go to hell.

    i have written the entire OK congressional delegation several times every year for the past 25 years. They, and congress in general, don't care that the BATFE is a rogue agency.

    Thought the investigation into Fast and Furious might lead to the reform of the BATFE. What a disappointment that one was: The investigation into Fast and Furious was a political ploy in a presidential election year.
     
    Last edited: Mar 19, 2014
  17. Trent

    Trent Member

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    Umm.. I thought it was well settled now that an AR-15 pistol can go to rifle and back again?

    Did something change and I wasn't told about it?
     
  18. Willie Sutton

    Willie Sutton Member

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    "I understand home-made firearms do not have to be serialized or marked if made for personal use, but I thought that post '68, they did if sold."


    No, only if manufactured by a licensed manufacturer.


    Willie

    .
     
  19. AlexanderA
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    AlexanderA Member

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    We should keep in mind that there's a hierarchy in BATFE pronouncements. (This is the same as the hierarchy in pronouncements by the IRS, an agency of which the ATF used to be a part.)

    1. Determination letters aka "private letter rulings." These are answers to particular questions sent in by individuals or businesses. They bind the agency in regard to that particular transaction (or item) of that particular individual or business, but are not applicable to any other individual or business in similar circumstances, and cannot be cited as precedent. Industry groups sometimes gather and unofficially publish these private letter rulings, but it's dangerous for anybody else, besides the party directly involved, to rely on them.

    2. Published ATF Rulings. From time to time, determination letters that are deemed to be of general application are officially published, after being expunged of personal information. These can be cited as precedent by anyone. In recent years, these published rulings are few and far between. BATFE seems to want to play its cards close to the vest.

    3. Regulations. These are a detailed "fleshing out" of the underlying law, and are adopted only after the publication of a Notice of Proposed Rule Making, a public comment period, review of the comments, and approval by the Office of Management and Budget and the DOJ. They become part of the Code of Federal Regulations. Regulations trump rulings but are rarely issued unless there's a change in the underlying legislation.
     
    Last edited: Mar 19, 2014
  20. dmancornell

    dmancornell Member

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  21. Sam1911

    Sam1911 Moderator Emeritus

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    Nope, you've got it. What he was getting at is that the current interpretation is that you've got to start with a PISTOL. Starting with a rifle would be putting a short barrel on a rifle.

    It doesn't make a whole lot of sense as the parts are all indistinguishable and the only place that "rifle" is a "rifle" is on the 4473 in the original retailer's filing cabinet, or the records of the manufacturer, but that's where we've been told the interpretation currently stands.
     
  22. barnbwt

    barnbwt member

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    Or when you make the receiver yourself, that it is classified as a mere "firearm" (IIRC) being neither a pistol nor rifle.

    Also, I am very heartened to see that video with the CEO. Professional, calm, rational, professional. I'm sure a great many people expected some raving paranoid guy with a bucket on his head ranting about the gubmint takin' ur gurns. That professionalism helps sell this issue much more as what it is; a civil rights issue.

    TCB
     
    Last edited: Mar 20, 2014
  23. goon

    goon Member

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    Along with the ARES CEO, a lot of us fall into that category.

    At this point in my life I've only ever seen one or two 80% lowers in person. I've never owned one and probably never will. They're just plain too much trouble for me to mess with when I can buy a blemished complete lower for $60. It doesn't bother me too much that there's a paper trail from a manufacturer to an FFL to me.

    What does bother me is laws that are seemingly set up to create criminals out of non-criminals. And after 8 pages of discussion, even if that wasn't/isn't the ATF's intentions, anyone on here can see that this has gotten way past a layman being able to understand the law. About the only thing one can solidly take away is if the ATF says you're a criminal, you are. Don't cross the ATF. That's not how our system is supposed to work.
     
  24. BluewaterLa

    BluewaterLa Member

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    I still wonder why the question hasn't been asked to politicians across the country.. By media and or constituents in local meetings.
    HOW much more do they think the American population is going to take ?
    History has shown that problematic and oppressive governments push their dictatorial rule until the mass majority stands together and deems their actions to be enough ! Our rights have been picked and torn apart for decades, while everyone pretends its all ok or it's all for safety. Freedom in this country has become an illusion in my opinion. The constitution and bill of rights are viewed by our govt as old and outdated ! That thought should have been enough for the American people to choose more wise candidates at the voting booth.
    Educate your youth of the true American way and influence them to keep enough interest in political issues so they do not make the mistake of the many and blindly vote on who has the better chance of winning or what sounds good coming from a person on tv.
     
  25. JSH1

    JSH1 Member

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    Do you really think the American public cares about 80% lowers and the right to build your own rifle without paperwork? Very few gun owners even care about it let alone the general population.
     
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