Saturday, March 27, 2021

Part 2. California Sues to Force ATF to Outlaw Homemade Guns

From Wikipedia, Government image Public Domain, cropped and scaled by Dean Weingarten

On September 29, 2020, The Giffords Law Center and the State of California, sued the BATFE, demanding they change their regulations and outlaw "80% receivers".  Essentially they are demanding the ATF change the law to outlaw homemade guns.

This is part 2 of the analysis of the false assumptions in the lawsuit.

Part one of the analysis  deals with the predicates of the lawsuit, filed against the BATFE by the State of California and others, in the first paragraph.  

The philosophical basis of GCA 68 is an affront to the Second Amendment.

The first paragraph claimed restricting access to common weapons was a positive social good. It claimed restrictions on sales had a positive effect on restricting access to firearms by dangerous people.  Those are false assumptions.

In Part 2, the second paragraph of the predicates of the lawsuit are examined. 

The second paragraph in the lawsuit attempts to show  ATF regulations have been weakened, and criminals are gaining access to homemade firearms in significant numbers because of changes by the ATF.

To believe this premise you must believe the GCA 1968 restrictions were effective to begin with. They never were effective. 

The assertions are not  legal questions, but questions of fact and legislation beyond the purview of the ATF. Those questions should not be decided by a judge or an administrative entity.  The plaintiffs are requiring the ATF to change legislation.

For the sake of argument, consider the predicates for the lawsuit put forward in the second paragraph. From

    2.   But today, these protections are threatened by proliferation of so-called “ghost guns.” Ghost guns are, in effect, a lethal do-it-yourself (“DIY”) project that allows anyone at home to build a fully operable firearm within minutes, using nothing more than commonly owned tools and a pre-packaged kit. The resulting DIY weapons are “ghosts” because, lacking serial numbers, they are not traceable by law enforcement when they are used in a crime, and they are not regulated by the federal government in any way. That is a result of decisions by Defendants—ATF and its leadership—to exclude these ghost guns from the ambit of the GCA. In other words, ghost guns can be purchased without a background check, by people who are prohibited from possessing firearms; the firearms do not have serial numbers; and gun dealers are not required to maintain any records of their sales or the identity of their purchasers. Anyone can buy them, no one can trace them, and the federal government has done nothing to regulate or limit their spread.

The "protections" were always non-existent. Violent crime escalated rapidly after GCA 1968 went into effect. "80% receivers" or methods to obtain unserialized guns do not increase crime rates.

Do it yourself firearms have existed throughout the history of the United States. Kits for making your own semi-automatic STEN gun were sold in the 1980's. Slam fire shotguns were well known shortly after World War II. What the lawsuit decries is the proliferation of technologies which allow people to create more complex machinery in multiples of ever easier ways. "80% receivers" are a result of market forces responding to demand as technologies change and public perceptions alter.

The premise that unregistered and unserialized guns are a threat to the public is false. Registration and serialization are ineffective in reducing violent crime.

Legal unserialized guns are a safeguard against gun confiscation. One of the premises of the Second Amendment is gun confiscation is bad.

Making your own firearm, without a serial number, shows some Constitutional restraints on government power are still effective. It is simpler to remove a serial number, or to alter one, than it is to make a gun for your own use under the current regulatory scheme.  Each system is equally effective in producing an unserialized gun.  The mandatory serialization of guns should be revoked.

When a gun has been stolen, the tracing of it goes nowhere. The vast majority of firearms in the United States have existed long enough to render their trace, to the person who originally purchased the firearm at retail, useless for solving violent crimes.

The lawsuit claims the public is put at danger because people can obtain firearms without purchasing them through a regulated dealer. 

People have always been able to obtain firearms without purchasing them through a regulated dealer. 

In extreme regulatory environments, people all over the world have been making guns to avoid government restrictions, for as long as there have been regulations against certain people owning guns.  As Rudyard Kipling wrote in 1886, in the poem "Arithmetic on the Frontier":

A scrimmage in a Border Station
 A canter down some dark defile
Two thousand pounds of education
 Drops to a ten-rupee jezail

A jezail was a handmade firearm common in India. In 1886, they had been illegal for 29 years. Today, India has a strong black market economy making about 2.5 million illegal firearms a year, primarily for the local trade. The trade has graduated from jezails to semi-automatic pistols. This persists in spite of extreme gun controls in India, which date back to the uprising/mutiny of 1857.

People who want guns, and are prohibited from getting them, obtain them on the black market already, in large numbers, around the world, in spite of draconian laws. It is already much easier to obtain guns in the United States by purchasing a gun through legal channels than by making your own. The guns made from the parts described in the lawsuit are guns legal to own in the United States. 

There are about 460 million legal guns in the United States. Most guns in the United Sates are unregistered and untraceable, even if they have serial numbers. Guns made by individuals for themselves are a small subset of the total.

The premise of the lawsuit, that 80% receivers present some sort of existential threat to people in the United States is absurd.  It is based on the simple belief "guns are bad". It is not based on fact. People in the United States have always been legally able to make guns for their own use. The lawsuit contends modern technology has made making your own gun easier; therefore the government should make it harder. 

Functional guns can be made from hardware store materials in a few minutes, once the components have been assembled and the tools are available.  Under the false logic of the lawsuit, pieces of pipe in hardware stores should be unlawful to sell without an FFL, because they "may readily be converted" into firearms. 

The legal right to make your own guns as safely and easily as technology allows, is inherent in the Second Amendment.

It is easier to publish a blog on the Internet in 2020 than to print a pamphlet in 1776. Better technology does not invalidate fundamental, Constitutional, rights.

The language in GCA68 has to be defined by someone. Congress did not desire barrels or slides or grips or nuts or bolts to be defined as firearms.

The receiver or frame which other parts attach too was defined as one type of  firearm, which included the serial number. The United States, wisely, did not require serialization of all major parts of guns, as do some restrictive European countries. 

The ATF had to make a decision as to what constitutes a receiver or frame. 

It was not a mere piece of metal, or metal with one cut, or a casting. They made the decision based on machining, particularly the fire control area. From the ATF website:

Receiver blanks that do not meet the definition of a "firearm" are not subject to regulation under the Gun Control Act (GCA). ATF has long held that items such as receiver blanks, "castings" or "machined bodies" in which the fire-control cavity area is completely solid and un-machined have not reached the "stage of manufacture" which would result in the classification of a firearm according to the GCA.

The ATF did not make a decision to exclude unfinished receivers from the GCA. They made a decision to include many pieces of metal which were not receivers. If an unfinished receiver is not functional, it is not a receiver. The ATF included many items which were not receivers. They went beyond the law. A line and a definition had to be drawn somewhere. The ATF chose to use the fire control area.

The term "designed to or may readily be converted into" always applied to complete weapons. It never has applied to frames or receivers.

Just because criminals occasionally use a technology in crime, the entire population should not be deprived of the technology.

Computers allow cyberbullying, people have died. . Bicycles have facilitated bank robberies and murders.  Cars facilitate robberies, murder, and rape. It violates the core of our legal structure to deny useful technologies to the public because criminals misuse them.

The lawsuit alleges that 80% receivers represent a new and significant threat to public safety. Both assertions are false.

The threat is not new, it is not significant, and it does not justify overturning decades of precedent on which companies and whole industries have been founded.

In part 3 of this series, the term "designed to or may readily be converted into" will be analyzed, as it is used in the law. The California lawsuit misapplies it to frames or receivers.

©2020 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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ScienceABC123 said...

It seems I ask this question every time the "public safety" argument is raised...

Please explain how what the Constitution explicitly says can be out-weighed by a nebulous concept (i.e. "public safety") that is not mentioned anywhere in the Constitution.

Kurt said...

That's easy - the General Welfare clause can be stretched to cover anything the government wants.

It's completely illicit, but I can't think of a single instance where the GW clause was used as justification that was struck down.