And it is our willingness to accept a mere bureaucrats LETTER as the Gospel truth as a RULING as if it were handed down from on high that gets us into these messes. They aren’t. That’s the problem. They do not have the authority to do this without a proper process which this Judge was CALLING THEM ON, and even a lowly lawyer can call them on by pointing out THEY DO NOT HAVE THE AUTHORITY TO DO IT , by writing a letter, if only we would do it and stick to our, er, guns!
The ONLY person who can do this quickly without due process is the President of the United States by means of an Executive Order. . . and that is subject to review by Congress and reversal by the courts in D.C. That is why bump stocks were banned so quickly after the Las Vegas massacre. I think it was unconstitutional, but lacking Congressional will, and a court case to overturn the EO, it will remain the state of things.
However, absent a specific regulation on the topic outlining exactly what is being regulated, the ATF does not have the power to make these administrative determinations without announcing and publishing the proposed regulation, then publicizing a period of at least 90 days for public comment, publishing the proposed agreed upon regulations which have to be submitted to the DOJ and Attorney General for approval, finalization, and then publication of the final regulation in the Federal Registry at which point they become active on the date they are listed.
An ATF agent or bureaucrat CAN only make a determination based on EXISTING law and regulations. . . Which is what a determination letter is supposed to be for. They cannot just pull one out of their ass and claim it is the legally binding without doing all of that and proclaim it is a determination, which is an expert’s INTERPRETATION of a specific case compared to how the law and regulation are written. They can’t just make up a new rule, such as telling someone what tools and techniques may be used to manufacture a firearm, because there IS NO SUCH REGULATION ON THAT SUBJECT. That is not at all within their purview, never has been, never will be.
Our government servants are simply not allowed to go into a worker’s shop and say, “You can use that tool but not that one, that’s OK, but that one’s off limits. Hand tools are on our approved list, but power tools are verboten! No! You are not permitted to use anything programmed for any reason, NICHT! WHAT?! You have that one LEASED??? That is forbidden! You must cease and desist using that immediately! You are permitted to use tools only owned personally by you to produce things only you use.”
Do you get the absurdity of that position?
My expertise here besides being an NRA Endowment Member, is as a past Federal Firearms License holder, with a class C endorsement for machine guns and other schedule C weapons (we were a police supply house). . . We were applying to also manufacture them, although we only repaired them, because occasionally repair included making new receivers to replace receivers that were not available. We also held a Federal Firearms Importer’s license.
I was at one time—about 40 years ago—qualified to testify in California Courts as an expert witness in these matters and I turned down a job I was offered to go to work with the ATF in the early ‘70s as a firearms identifications expert technician because I didn’t like what I saw happening in their approach to gun control.
I got out of the firearms industry in the mid-‘70s, and was entirely out by the early to mid ‘80s, opting to work for the United States Chamber of Commerce, and later for the National Federation of Independent Business.
Although a lot of my expertise is out-of-date, I do know very intimately how the government regulatory agency model works because we were very regulated out the ying-yang, and that has not changed, except they’ve gotten very much more out of control and are more arrogant, and they’ve gotten more confrontational and adversarial about it.
I respect your passion on this subject, and frankly I agree with everything you've said in your last reply. The ATF at times have acted precisely like the jack-booted government thugs that Wayne LaPierre so eloquently branded them. Ruby Ridge comes to mind.
However, the law, as passed by congress and signed by the President defines a firearm as "any weapon which is designed to or may readily be converted to expel any projectile by the action of an explosive; or the frame or receiver of any such weapon." (Title 18 USC §232(4)). The statute does not define "frame or receiver" any further. That is left by statute to the authority of the Attorney General to promulgate rules to expand on that definition.
That expansion is found in 27 CFR §479.11 which defines a frame or receiver as "[t]hat part of a firearm which provides housing for the hammer, bolt or breechblock and firing mechanism, and which is usually threaded at its forward portion to receive the barrel." It is this definition of a frame or receiver that the judge had put into question whether a lower receiver of an AR style firearm met. What I don't understand is if the government is in such a panic that this judge's ruling was going to wreak havoc on the ATF's ability to regulate ARs, they simply need to change their definition in the Code of Federal Regulations.
Which is exactly what they did when they attempted to reclassify M855/SS109 "Green Tip" ammunition as "armor piercing handgun ammunition." I know, because I submitted comments in the negative during the public comment period. You can read the aftermath of that comment period here: https://www.atf.gov/news/pr/notice-those-commenting-armor-piercing-ammunition-exemption-framework. The effort was dropped due to overwhelming public comment to the negative.
There was also a proposed regulation reclassifying slide stocks as machine guns instead of firearm parts. Again, I know because I submitted comments in the negative during the public comment period. You can read the response to the comments here: https://www.federalregister.gov/documents/2018/12/26/2018-27763/bump-stock-type-devices#h-106. As you and I are painfully aware, the regulations were ultimately adopted.
Letters of determination as issued by the ATF are not binding law, they are opinions of the ATF. Anyone who disagrees with a letter is free to challenge the letter in court. They essentially describe what the ATF would or would not prosecute. Again, if one wished to challenge one of these letters in court, they are free to do so, but to do so they need to act contrary to the letter, be arrested, and tried in court. Not an avenue that many would voluntarily take just to challenge a ruling, because of the consequences of losing in court.
And unfortunately, it is difficult to challenge these regulations without becoming embroiled in the justice system because of what the courts define as a "lack of standing," which baffles me.