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Latest on EP Armory 80% Lower Receiver

ATF has ruled that it is a firearm, despite the inclusion of a biscuit in the fire control well, which the rest of the receiver is injection molded around. You can find the determination letter here.

Unlike “castings” or “blanks” which are formed as a single piece so that a fire-control cavity has not been made, EP Arms uses the biscuit specifically to create that fire-control cavity during the injection molding process. As described in your letter, it appears that the sole purpose of the “biscuit” is to differential the fire-control area from the rest of the receiver and thus facilitate the process of making the receiver into a functional firearm. ATF has long held that “indexing” of the fire-control area is sufficient to require classification as a firearm receiver. Based upon the EP Arms manufacturing process, it is clear that the “biscuit” serves to index the entire fire-control cavity from the rest of the firearm so that it may be easily identified and removed to create a functional firearm.


Keep in mind that courts are generally highly deferential to agency determinations, so I wouldn’t give this much of a chance in court. But it’s noteworthy that ATF has “long held” that indexing constitutes creating a receiver. Where in the Federal Register can that be found? Can’t find anything in the code of federal regulations either. It’s probably found in other determination letters. This isn’t rule of law, it’s rule by bureaucratic whim.

Administrative Procedures are Important

ATF has a habit of ruling by letter, instead of the method Congress prescribes through the Administrative Procedures Act. Dave Hardy notes that in the case of 80% lowers, which are all over the gun news because of the raid on Ares Armor. It would be possible to do rule making on what a receiver is and is not, and have it be clear in the Code of Federal Regulations.

I don’t know how much you all know about these EP Armor polymer lowers, but it looks to me like they mill out the space for the trigger group, and then backfill it with a different color polymer so the customer knows exactly how much to machine. ATF argues that the milling process constitutes manufacturing a firearm, with all that it entails, regardless of whether you backfill it later. They have an argument to be made there.

But it’s quite disturbing that ATF was fishing for Ares customer list. What crime have the customers committed? Violating a determination letter? I know the courts have a habit of deferring to agency determinations, but how long is ATF going to be permitted to get away with ruling by letterhead instead of federal regulations like agencies are bound to?

I’d say good advice is, if you buy an 80% lower, cash and carry is the watch order of the day.

Feeding the Maybe Not-So-Tin-Foil-Hat Conspiracies

I have to agree with Glenn Reynolds that perhaps the greatest “achievement” of this Administration is making crazy conspiracy theories seem less crazy. This begs the question: what the US government needs 600,000 AK-47 magazines for? As Clayton notes, that seems awful excessive if your intention is only to arm Syrian rebels. Clayton speculates that perhaps the goal is to dry up the civilian supply to make them more expensive. Previously I’d say that was tin-foil hat territory, but with this crowd, I’m not so sure.

Amnesty Light

I’ll be honest, I’d personally be fine compromise in theory, but I suspect it’s bad politics for the GOP:

“Illegal immigrants, assuming they have lived here for a decent period of time and have not committed a felony, can have amnesty, but they can NEVER be allowed to vote. They can do anything else that is legal, but if they want to vote — or run for office or practice law in our country, as just happened in California — they must return home and go through the normal immigrant application process, however long that may take until they have citizenship.”

I’ve posted on this before. Most of the arguments against this idea were the slippery slope, namely if we give them a limited amnesty now, they’ll just vote in a full one next chance they get. I believe in slippery slopes, and agree it’s no fallacy. Gun control is absolutely a slippery slope. Here’s what I look at:

  • Is the interest pushing for half the cake now in hopes of getting the whole cake later. Well, the Democrats certainly want them to have the vote, because they want a more solid majority, but it’s less clear the Hispanic community honestly cares all that much about the vote, and polling also shows they care about border security too. The political elites and activists are likely to keep pushing for the vote, so I think this plays in favor of the slippery slope.
  • Does the half cake strengthen our opponents hand any, or make their arguments better? I don’t really think this changes the rhetoric at all. In contrast to say, accepting the NICS system under Brady, which I think weakened our hand in arguing that expansion is a bad idea. I’m not sure this plays as well with the slippery slope. If anything, I think this would weaken their hand to the near future.
  • Does the half cake take people out of the issue in terms of fighting further encroachments. Absolutely. I think a lot of people will walk away from the GOP if they push through a half-cake amnesty bill. This would make it much easier for the Democrats to pass the rest of the cake when they get back into power.

So while I think the deal, in theory at least, would be acceptable to me, I think it would only contribute to the further destruction of the GOP at the cost of the Democrats winning several more election cycles. I’m not convinced anyway, that amnesty is the key to winning the latino vote. I think Republicans are pushing for limited amnesty largely because business interests want it, and because they have K street consulting firms whispering in their ear that this will allow them to win the latino vote.

Ready for the SOTU?

I am. I think I am sufficiently sauced. What I’m going to be on the lookout for is whether he brings up gun control. Last year he certainly did. They got their vote and they lost. Will he want to expend political capital on gun control this year? We shall see. I’ll update if he says anything worth noting.

UPDATE: Gabby Giffords and Mark Kelly will be releasing a new ad during SOTU, but will the President back them up with rhetoric of his own?

9:21: He still hasn’t said anything yet. I mean anything. Not just about gun control. Blah blah blah blah.

9:23: Everyone looks dour. Even the progressive Dems don’t seem to have the energy for Obama. Even Michelle looks clinically depressed.

9:23: The death of upward mobility! Well, not like you’re helping with that any, asshole.

9:24: He’ll expand opportunity for American families, even if it means having to become a dictator!

9:28: I’m pretty sure I could code something up to write Obama speeches at this point. This is objectively bad. He’s saying everything short of “shovel ready.” It’s like every Obama speech is a compilation of every other Obama speech. I thought Bush was bad in this regard.

9:31: The federal government is responsible for Google and the iPhone, according to President Obama! There’s nothing the .gov can’t do!

9:32: I actually agree with the President on patent reform. This is a rare occurrence for me to agree with anything he has to say.

9:34: Man, this whole Congress could use some Prozac. I think they’re all clinically depressed.

9:35: “Fuels of the future.” Unicorn farts, apparently.

9:37: Fixing our “broken immigration system” is the only thing that seems to make Democrats not be clinically depressed.

9:38: Dick Dubrin seems to be the only asshole that still gets a hard on from Obama’s speeches. He’s smiling like a squirrel in a nuthouse.

9:40: He’s commanded Joe Biden to find everyone who needs a job the training they need to get a job. I’m guessing that’s going to keep him too busy to lobby for more gun control.

9:41: Restoring unemployment animates the Democrats briefly again…. or maybe not… that died out quickly… second try for that applause line just doesn’t quite do it. Back to clinical depression.

9:43: This is the most depressed I’ve ever seen Congress at a SOTU. Both sides. Even the Republicans can’t get a good boo going. What’ worth booing? It’s just dreck.

9:46: We’re spending all kinds of money and not adding any to the deficit, according to the President. I wish my finances could work like that! Education is an investment! Yeah, I’m still making student loan payments to prove it, and I am turning 40 soon.

9:49: We’re getting all war-on-women now, but it’s all “war on their wallets” and not their girly parts.

9:52: Now we’re on minimum wage, because there’s no downside to anything. Money just farts out of the backside of the unicorn. This from a guy who’s never had to meet a payroll in his life.

9:54: MyIRA? MyRA? I don’t know what he’s talking about. Turns out my namesake family are Ulster Scotts. I don’t support the IRA, sorry.

9:56: Obamacare is helping real people, according to the President. Well, for us real people, it’s made insurance on the individual market unaffordable, whereas it was previously. Thanks, dude!

9:58: Democrats are as animated as I’ve seen them tonight in cheering Obamacare, which has done nothing except make insurance unaffordable and push more people off the insurance roles. Keep cheering. Yes, keep cheering. America is increasingly recognizing this turd for what it is.

9:59: He wants us all to get covered by March 31st! Well, you know, when you charge twice as much for crappier coverage, you can f**k right the hell off. We’re not going to play his game in our house. At least he’s not repeating the lie, “If you like your plan you can keep it!”

10:01: Citizenship is being anti-gun! He’s talking about gun control! “I intend to keep trying, with or without congress….” to shit on our rights as Americans. I’ll get more detail on this section of the speech shortly.

10:03: We’re on to our troops now. Well, that’s some dedication to gun control right there. Didn’t even get two minutes of the President’s time in a longwinded, empty speech. Now he’s talking about how we’re not actually losing in Afghanistan.

10:08: “We have to close the prison at Guantamo!” Wasn’t this a campaign promise in 2008? Five SOTUs later and he’s still making promises about closing Guantamo? Does anyone think this is serious a this point?

10:13: Apparently Iran better never build a nuclear bomb, or Obama will write them another strongly worded letter, saying just how angry he is.

Well, that’s all she wrote. I’ve haven’t witnessed such a low key, depressed SOTU for some time. Shannon Watts and Bloomberg got a whole one minute or so of an hour and five minute speech. Yeah, I don’t think the gun control folks have much to celebrate from this.

Quote of the Day: ATF Headquarters Edition

John Richardson comments on ATF renaming their headquarters after Elliot Ness, I guess like the FBI has named theirs after J. Edgar Hoover. John thinks this is actually appropriate:

To summarize, Ness didn’t get his man, he had questionable morals, he probably was an alcoholic, he covered up a crime, he couldn’t manage his money, and he was prone to wild exaggeration about his accomplishments. When you look at that summary of Ness’ life and career, who better to represent the modern day ATF?


HHS Proposed Rulemaking on NICS and HIPPA Published

Appearing in the Federal Register:

The Department of Health and Human Services (HHS or “the Department”) is issuing this notice of proposed rulemaking to modify the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Privacy Rule to expressly permit certain HIPAA covered entities to disclose to the National Instant Criminal Background Check System (NICS) the identities of individuals who are subject to a Federal “mental health prohibitor” that disqualifies them from shipping, transporting, possessing, or receiving a firearm. The NICS is a national system maintained by the Federal Bureau of Investigation (FBI) to conduct background checks on persons who may be disqualified from receiving firearms based on federally prohibited categories or State law. Among the persons subject to the Federal mental health prohibitor are individuals who have been involuntarily committed to a mental institution; found incompetent to stand trial or not guilty by reason of insanity; or otherwise have been determined by a court, board, commission, or other lawful authority to be a danger to themselves or others or to lack the mental capacity to contract or manage their own affairs, as a result of marked subnormal intelligence or mental illness, incompetency, condition, or disease. Under this proposal, only covered entities with lawful authority to make adjudication or commitment decisions that make individuals subject to the Federal mental health prohibitor, or that serve as repositories of information for NICS reporting purposes, would be permitted to disclose the information needed for these purposes. This disclosure would be restricted to limited demographic and certain other information and would not include medical records, or any mental health information beyond the indication that the individual is subject to the Federal mental health prohibitor. HHS notes that the Department of Justice (DOJ) has proposed clarifications to the regulatory definitions relevant to the Federal mental health prohibitor. The DOJ proposal is published elsewhere in this issue of the Federal Register. While commenters should consider this proposed regulation in light of the clarifications proposed in DOJ’s proposal, we note that those clarifications would not change how this proposed HIPAA permission would operate.

This honestly won’t do much, because my understand that it’s state privacy laws, not federal, that prevent many of the states that don’t report from reporting.

Isn’t all Legislation Morality?

There’s a lot of discussion in the comments from the post the other day on a Virginia lawmaker’s attempt to outlaw oral sex for minors (but not regular sex). I used to be in the “Don’t legislate your morality on me!” camp as well, but the more I’ve thought about it, the less I think there’s any such thing as law that isn’t imposed morality in some way or another, so I no longer find that line of argument all that persuasive.

I also tend to agree with originalist thinking which suggests the Constitution and Bill of Rights was never understood to be any barrier to laws that today are generally regarded as being unconstitutional. This is evidence by the number of states who had laws barring such practices, and even going so far as to establish religion. But that’s not to say I think in the modern era I think such laws are just fine and peachy.

I believe criminal law should generally reflect widely held societal values. We nearly universally agree that crimes like armed robbery, burglary, theft, fraud, murder, etc, are moral wrongs and deserving of legal punishment. Regardless of what the social consensus in 1782 Massachusetts was in regards to church attendance, or what the consensus was in regards to sodomy in 1779 Pennsylvania, the consensus today is not even close to universal. When laws fail to reflect a broad consensus, it undermines respect for the law as a whole. Prohibition is a great example of a moralizing law that failed to achieve any broad social consensus, and is widely regarded as a failure.

Randy Barnett, in his book Restoring the Lost Constitution, has interesting ideas about how incorporation of the 9th Amendment through the 14th Amendment brings about constitutional limits on the state police power, offering a more originalist theory for how anti-sodomy laws could be held unconstitutional. While I find this personally appealing, there’s a lot that I think could be criticized on originalist grounds. But regardless of whether a law is constitutional or not, I do think we wade into dangerous waters when we criminalize behavior there’s no broad social consensus for criminalizing. That is the root of “Don’t impose your morals on me!” I’ve often though that perhaps we should require a supermajority to create criminal laws, and leave bare majorities for matters like budgets, civil procedure, and other internal governmental matters. If government wants to create a crime with penalties, it should be on something most everyone agrees ought to be a crime.

Tips of You Ever Want to Research at the National Archives

I’ve finished with both my Civil War ancestors at the National Archives. I was really completely unprepared for how this whole thing was going to work, so I thought I might share some tips of anyone else decides to do some research there.

  • You can bring your own flatbed scanner. I knew this ahead of time, so I brought mine. But a lot of documents are larger than the standard 8.5×11, so a standard consumer scanner meant for modern documents will fall short. If you can afford it, take a large format flat bed. The Archives does have one, but it’s usually being used by someone else.
  • Be well hydrated ahead of time. They don’t allow any food or drink in the research room for obvious reasons, and it’s warm and dry. I was nearly ready to swill straight out of the Potomac by the time I got done.
  • Don’t bring any more equipment than you can carry in. They do provide carts if you absolutely can’t carry your scan-o-magic 8000 deluxe, but everything is searched going in and out. No bags, or anything you can stuff anything into. They don’t check your pants though, so Sandy Berger is still good.
  • The archives provides free locker space, but bring a quarter for the key slot. They also have a cafeteria.
  • The research room is under guard and heavy surveillance. It’s pretty safe to leave your stuff and go catch a break.
  • Bring a power strip. They have plugs under the desks, but one is occupied by your desk lamp. I chose to go without the desk lamp.
  • Civil War pension files tend to be much much larger than you would expect. It took a good solid two hours to scan each one, though I have an 8.5×11 scanner, so I had to do a lot of shifting of larger documents to capture everything.
  • The Archive staff are incredibly helpful and nice.
  • It’s really easy to get a researchers badge. Basically follow a power point presentation on how not to destroy history, and on how they do things, and it’s yours. Pay attention though because they explain how you request and check out documents.

I was really surprised. It’s interesting to hold original documents that your 3x great grandfather wrote by hand in ink. Because the Archives stores these documents under pretty ideal conditions, 150 year old documents look better than some of my family documents from the 1950s and 60s.

And just for those anti-gunners that act like no gun ever killed someone before Satan invented the semi-automatic firearm and marketed to paranoid gun nuts, reading the description of what happened to my 3rd great-grandfather at Antietam was pretty horrific. I’d like to see someone tell him that those old muskets weren’t fine killing machines.

First, the mini ball blew his right thumb clean off. Then it entered his chest about 4 inches below the nipple. It blew one of his ribs apart. According to one surgeon’s report, the ball passed between his lung and liver, and exited near his spinal column. Another later physicians report said the lung had been shot through, because he later received a pension increase for that wound due to breathing issues. I would think shot through the lung would be fatal back then, but maybe his lung was nonetheless still damaged. I’m sure there were bits of rib floating around in his body.

The Political Power of Gun Owners

Right now, if all goes according to schedule, Sebastian and I are likely in the National Archives looking over the Civil War pension applications from two of his ancestors and one of mine. This new genealogy hobby has opened the door to new political issues for us since, as you might expect from an overly expansive government, there are efforts to shut down resources utilized by genealogists. Since someone, somewhere might possibly misuse data, we must ban the estimated 80 million genealogists in the country from access to vital information!

What I found interesting and relevant to post on this blog was a peek at the influence of NRA on the political process compared to some other interest groups.

Back in 2012, there was a hearing held on the uses and value of the Social Security death records, and genealogists were not even on the witness list. In fact, it goes further than that:

No genealogist has ever been permitted to testify at a hearing regarding the SSDI. Melinde Lutz Byrne, at that time President of the American Society of Genealogists, sat in the hearing audience when Commissioner Astrue uttered his remarks. Her in-person testimony was banned by Chairman Sam Johnson.

Can you imagine a situation where Congress would refuse to listen to any pro-gun group at all on any major gun issue? Let’s face it, even if they only invite NRA to try and pick on them, even anti-gun lawmakers tend to want to hear from the opposition for at least political points. That doesn’t mean they take the pro-rights arguments seriously, but at least they allow a voice to be heard. The genealogists can’t even be heard – not even once.

I just found that to be an interesting little perspective on how hard gun owners have worked to be taken seriously. Now we just need some 2014 election wins to help remind lawmakers why they should keep listening to us.

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