Federal Judge Vacates ATF’s Unlawful “Frame or Receiver” Rule

[BiscuitsandGravy]

 

[JAL]

Breaking News:
Four Filings made with SCOTUS today, the deadline for responding to BATFE's application for an Emergency Stay from SCOTUS regarding 5th Circuit refusal to Stay District Court vacating BATFE Rule.

(Trigger Warning: The documents are PDFs)

See the four document entries for August 2nd on SCOTUS' Docket page for the Stay Application:
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/23a82.html

Response from VanDerStok, Tactical Machining, Polymer80, and FPC:
http://www.supremecourt.gov/DocketPDF/23/23A82/274511/20230802162019194_2023-08-02 VanDerStok - Resp in Oppn to Stay vf.pdf

Response from Blackhawk Manufacturing (80% Arms):
https://www.supremecourt.gov/DocketPDF/23/23A82/274495/20230802163918548_August%202%202023_Respondent%20BlackHawk%20Manufacturing%20Response%20to%20Application_23A82.pdf

Amicus Curiae from Firearms Regulatory Accountability Coalition (FRAC):
https://www.supremecourt.gov/DocketPDF/23/23A82/274488/20230802133054273_23A82_Amicus%20Brief.pdf

Response from Defense Distributed, Second Amendment Foundation (SAF) and JSD Supply:
https://www.supremecourt.gov/DocketPDF/23/23A82/274516/20230802163833473_No.%2023A82%20-%20SAF%20DD%20JSD%20Response%20to%20Stay%20Application.pdf

Happy reading . . . I recommend the first one from FPC, which I've only just skimmed through. I've not yet read the others though. The GunTubers will be out in force this evening giving their take on it all. I anticipate BATFE may try to submit replies tomorrow . . . which is why these were held and filed at the deadline.

 

[JAL]

Mark W. Smith speaks about the SCOTUS briefs just filed today (Aug 2nd):

 

[JAL]

Breaking News:
I won't provide the link to it as there's no PDF or other document containing the order itself, only the docket minute entry quoted below. It's my humble opinion Alito is giving himself (and perhaps others on the court) more time to put together a final judgement on BATFE's stay application. There's also the amicus brief filed by a pile of states that want to ban and seize all guns plus another amicus brief from FRAC. As would be expected, BATFE filed a reply brief at the eleventh hour yesterday. SCOTUS isn't slapdash.

August 04 2023:
Order issued by Justice Alito: Upon further consideration of the application of counsel for the applicants, the responses, and the reply filed thereto, it is ordered that the stay issued on July 28, 2023, is hereby extended until 5 p.m. (EDT) on Tuesday, August 8, 2023.

BATFE and Biden's minions are getting desperate. This one keeps spinning around in my head for poor Steve Dettelbach . . .

 

[Mgderf]

Breaking News:
I won't provide the link to it as there's no PDF or other document containing the order itself, only the docket minute entry quoted below. It's my humble opinion Alito is giving himself (and perhaps others on the court) more time to put together a final judgement on BATFE's stay application. There's also the amicus brief filed by a pile of states that want to ban and seize all guns plus another amicus brief from FRAC. As would be expected, BATFE filed a reply brief at the eleventh hour yesterday. SCOTUS isn't slapdash.



BATFE and Biden's minions are getting desperate. This one keeps spinning around in my head for poor Steve Dettelbach . . .

I hope SCOTUS has given the Biden administration just enough rope to hang itself.
These briefs they keep filing seem to be more and more desperate and more and more unconstitutional.

 

[JAL]

I hope SCOTUS has given the Biden administration just enough rope to hang itself.
These briefs they keep filing seem to be more and more desperate and more and more unconstitutional.

They contain increasingly wilder and groundless claims, including bogus statistics and fatally flawed studies.

One of the bogus analogies used now is the "Ikea Furniture Kit". Ikea furniture comes with all the assembly hardware and tools (albeit your own tools are often better). No cutting, machining, shellacking, staining, or varnishing is required. Anyone who has investigated buying a DIY 80% has discovered you need to buy a fixture/jig, milling/drilling tooling, drill or drill press, router, Dremel, plus all the other parts to install into the frame/receiver to make a complete weapon. Even if one has most of the drilling/milling/routing tools required, just buying the additional parts needed is more expensive than buying a complete equivalent . . . unless it's a Gucci Gun.

Side Note:
I'm not a big fan of Ikea furniture. It's particle board with a Formica type laminate on it and breaks too easily.

 

[manifest destiny]

I'm nervous about the delay/extension Alito issued. If for some reason this were to go the opposite direction than it appears to be going currently, it'll be open season on gun rights.

 

[Ark]

They contain increasingly wilder and groundless claims, including bogus statistics and fatally flawed studies.

Democrats really don't seem to understand that the constitution of the US doesn't answer to "study says".

 

[Mgderf]

I'm nervous about the delay/extension Alito issued. If for some reason this were to go the opposite direction than it appears to be going currently, it'll be open season on gun rights.

Molon Labe'

 

[JAL]

I'm nervous about the delay/extension Alito issued. If for some reason this were to go the opposite direction than it appears to be going currently, it'll be open season on gun rights.

Don't worry about it. Alito would have had about 24 hours to address everything that's been filed and have it published and distributed by 5PM today. They simply don't work that fast. He needs several days to write something that will explain precisely what his ruling is. You don't get instant gratification from any court when it requires a written rationale. If it were a terse, two sentence ruling, you'd have Biden, Garland, Dettelbach, Schumer, and every other Democrat on Capitol Hill screeching about rogue SCOTUS justices issuing invalid decisions, demanding to impeach six of them, creating terms that expire to replace them all, and packing the court with 6 more justices (increasing it to 15), all so they can get what they want. The court has to use due diligence to show that it considered everything filed in gory detail before arriving at a decision and issuing an order. The pushback is going to be bad enough. You don't want to give the Biden and his minions any ammunition to use. Be patient. I'm surprised it was continued only until Tuesday at 5 PM. I'd expected it to be continued for a week.

 

[Ark]

Well it turned out to be something to worry about, because Roberts and Barrett flipped and greenlit ATF to keep on enforcing their ban.

Supreme Court Rules 5-4 To Revive Biden's Ghost Gun Ban As Legal Battle Intensifies | ZeroHedge

ZeroHedge - On a long enough timeline, the survival rate for everyone drops to zero

www.zerohedge.com

 

[manifest destiny]

It's weird that scotus put a stay on the fed courts ruling while the appeal continues through the courts. If they disagreed with the intial fed court ruling (striking down the gov's rule/law re: ghost guns), wouldn't that strongly signal to the court hearing the appeal that scotus doesn't agree with striking down the gov's attempt to eliminate ghost guns?

 

[bwframe]

Supreme Court temporarily reinstates ban on “ghost guns” - SCOTUSblog

The Supreme Court on Tuesday allowed the Biden administration to temporarily reinstate a rule by the Bureau of Alcohol, Tobacco, Firearms, and Explosives regulating “ghost guns” while a challenge to the rule continues in a federal appeals court. In June, a federal judge in Fort Worth, Texas, had bar

www.scotusblog.com

The Supreme Court just handed gun groups a rare defeat

The Court blocked a lower court order that would have made it easy for criminals to obtain so-called ghost guns.

www.vox.com

Supreme Court allows continued regulation of so-called 'ghost guns'

The U.S. Supreme Court has sided with the Biden administration and will temporarily allow the government to regulate so-called "ghost guns" that can be made from kits at home.

www.foxnews.com

 

[JAL]

It's weird that scotus put a stay on the fed courts ruling while the appeal continues through the courts. If they disagreed with the intial fed court ruling (striking down the gov's rule/law re: ghost guns), wouldn't that strongly signal to the court hearing the appeal that scotus doesn't agree with striking down the gov's attempt to eliminate ghost guns?

No. While I'm dismayed, and deeply disappointed, don't read too much into SCOTUS granting the stay. It says more about procedural aspects of appeals than it does about what SCOTUS would do with a writ of certiorari and a decision. Nor does it signal any expectation of SCOTUS with the 5th Circuit.

What it does say: two SCOTUS justices (Roberts and Barrett) gave traditional deference to The Government until a final judgement in the 5th Circuit is issued (this should not to be confused with Chevron Deference). Temporary injunctions are extraordinary and very unusual -- and it appears to me that's the tack Roberts and Barrett took. In addition, the District Court's vacatur of the entire rule under the Admin Procedures Act was an unusual remedy for a District Court. Many had expected a lesser remedy that would have allowed ATF to go back and attempt rewriting the rule. This stay is only in effect until the 5th Circuit issues a final decision.

Oral arguments in the 5th Circuit will be heard next month. The Fat Lady hasn't sung yet. In the meantime, companies such as 80 Percent Arms, 80 Percent Lowers and Polymer 80 are still selling 80% receivers, jigs, tools, machines and parts kits . . . to buyers in states that don't have state laws prohibiting them. I haven't checked all the Usual Suspects yet, just a handful. The company that may be affected most by the SCOTUS stay could be JSD Supply. The Wheels of Justice continue to grind onward, albeit much more slowly than any of us here would wish for.

 

[Kurr]

MSN

(Reuters) - The U.S. Supreme Court on Tuesday granted a request by President Joe Biden's administration to reinstate - at least for now - a federal regulation aimed at reining in privately made firearms called "ghost guns" that are difficult for law enforcement to trace.

 

[JAL]

I'm looking up the details . . . according to the 80 Percent Arms web site, they and their customers are still covered by the November 2022 Temporary Injunction, which SCOTUS didn't issue a stay for. Appears others (and their customers) may be covered by injunctions that weren't stayed or otherwise affected by SCOTUS.

 

[JAL]

An update about ability to find and buy 80% lowers, jigs and tools:

[Disclaimer: I am not a lawyer and am not giving legal advice; verify the following to your own satisfaction -- or not]

In general, as I understand current Federal Law, ATF's Rules, and the current injunctions, it's not illegal to buy an 80% lower, the jigs, tools needed, or to make a complete firearm for your own use using them. A number of states have banned them (all the Usual Suspects). The companies selling 80% lowers will not ship to banned locales and make this clear, and it would be ill-advised to buy one for someone else and then ship it to them. There is no general requirement to have a personally made firearm (aka PMF) serialized and recorded by an FFL. However, if it is on an FFL's books overnight for some reason (e.g. for gunsmith work), the FFL must then serialize and record it. If someone has made their own lower and assembled it from parts, it's hard to imagine them submitting it for gunsmith work, the exception being having a Cerakote or hard anodizing finish applied. They're easily purchased with Cerakote or hard anodizing, after which the only exposed aluminum is in the fire control pocket. For civilian use in relatively benign environs compared to hard military field use, the internal exposed Aluminum shouldn't matter.

A reminder that unless someone is an FFL Type 7 Manufacturer (not a gunsmith), it's not legal to make one for someone else, even for free. An FFL Gunsmith can only work on one that's already been completed. Privately selling a firearm made with one is also illegal (now you've become a manufacturer). This wades into the same nebulous, ambiguous legal swamp as buying a firearm this week, and then privately selling it or giving it away next week. Given the current Dettelbach run ATF, that's not a Fate I'd be tempting.

---

In spite of the SCOTUS stay decision, which didn't vacate the injunctions, major players are still selling frames/lowers, jigs and tools:

• 80 Percent Arms (6061-T6 billet only)
• Polymer 80
• 5D Tactical (6061-T6 billet and forged 7075-T6)
• 80% Lowers (6061-T6 billet and forged 7075-T6, an Indiana company)

Google easily finds other, smaller companies. some with 6061 billet, some with 7075 forged and some with both. Some companies, such as Anderson Manufacturing, are not currently making/selling 80%, and some former sellers such as Brownell's aren't selling any. Nevertheless, prices on 80% lowers don't seem to have increased much from historical information I can find to compare (various forums discussing 80% builds).

---

Lower Materials Notes:
7075-T6 Aluminum is the mil-spec material for the M16 and M4. It is much stronger than 6061-T6, but it's also much harder to mill and drill with home tools, and it wears the cutting tools much faster, requiring one to work much slower and nibble at the milling in particular. That said, for normal civilian use, 6061-T6 should be more than adequate strength. However, polymer, even carbon fiber reinforced, may work for pistols, but its structural strength properties given the thinness in some portions of an AR-15 lower give me serious doubts about long-term durability, especially where the buffer tube attaches, around the rear takedown pin detent, and around the fire selector holes, one of which also has a detent alongside it. Long-term wear around the trigger and hammer pin holes also concerns me.

---

Other Notes:
From what I've read and seen videos on, the Gold Standard AR-15/AR-10/AR-9 Jig and cutting tools are the 80 Percent Arms Gen 3 Easy Jig, a good hand drill without worn chuck, runout or bent spindle, and a quality hand-held router for it, plus a solid bench vise (a good drill press or milling vise works well). There is plenty of good information online about how to mill and drill properly (along with some that's not very good). From what I've seen online, those that take their time, working methodically using best practices with good tools, get the best and most reliable/durable results. Some dudes brag about how fast they did one (or can do one), but IMHO it's not a race, it's about quality work. Very minor fitment may be needed for the fire selector. Shouldn't be required for the trigger/hammer though. I've completely torn down lowers to bare parts and and rebuilt them -- was taught how it's done correctly by a unit armorer decades ago. Helps greatly if one has the proper armorer's tools for it. It's more than a couple screwdrivers and a big hammer. There are a couple roll pins and some small springs can go flying off to the Land of Lost Socks if they're not properly contained when compressed during installation (they can fly quite far). There's helpful information about it in the "Gunsmithing" sub-forum, and online. Brownell's has a good tutorial about building a lower from bare parts. School of the American Rifle YouTube Channel shows proper reassembly techniques following repairs . . . but he doesn't to an entire build.

 

[JAL]

District Court Judge Reed O'Connor Issues Injunction Pending Appeal in VanDerStok v. Garland
This includes Defense Distributed and 80 Percent Arms.

Preliminary Injunction (Trigger Warning: It's a PDF):
https://storage.courtlistener.com/recap/gov.uscourts.txnd.366145/gov.uscourts.txnd.366145.261.0.pdf

Who else will receive injunctions that coattail on this one remains to be seen, notably Polymer80 whose motion to intervene in the VanDerStok was stayed pending today's Temporary Injunction. Stay tuned.

I've also attached the PDF

 

[Alamo]

So the fifth circuit waded into this again yesterday. I’m still processing what happened is presented by the arms call her in the below video. Once again, arm scholar, like to present clickbait titles, but his narrative seems to be much more restrained and informative.

I guess a key point is that the ATF has promised not to prosecute any customer who is not a prohibited person while appeals are being considered.

 

[bobzilla]

I guess a key point is that the ATF has promised not to prosecute any customer who is not a prohibited person while appeals are being considered.

Well how magnanimous of them.