@draco, if you read the ruling, it is not considered in distribution if you are assembling and already manufactured firearm. in the case of the AR class, the individual already own the firearm and are not selling it to each other or remanufacturing it into a new firearm. You can’t be called for distributing a firearm that has already been distributed effectively. This is explained in the gunsmith section of the ruling.
@hon1nbo please read the ruling you linked, it is explicit in its explanation of not sharing tool for the manufacture of a new firearms, not for the purposes of assembling and already manufactured firearm.
@Gimli your example is not really relevant, Engaged in business is described above as,
Sharing a tool freely is not engaged in business by this legal definition. That said, DMS does not in any primary manner profit off of firearms manufacture, sales, or distribution. As long as we do not sell firearms as DMS, or allow individuals to manufacture firearms at DMS. Every time I read these ruling I see that the grey area is the making of the part which is the “firearm”. which is not allowed at DMS. I really wish I could have been at the meeting with the ATF to press further into this exact issue.
As
applied to a manufacturer of firearms, the term “engaged in the business” is defined by 18 U.S.C.
921(a)(21)(A) and 27 CFR 478.11, as a “person who devotes time, attention, and labor to manufacturing
firearms as a regular course of trade or business with the principal objective of livelihood and profit
through the sale or distribution of the firearms manufactured.”
@Gimli … I see your point … it may be our livelihood to be in the business of gun education but we are not in it for profit.
@Gimli@Nick
I’m not certain this has been challenged or indeed any of these things have been challenged in a court that could adjudicate it. It may very well prove true. However, we will need to go through the steps to protect ourselves in whatever we need to. I am actually for going out and being the one to go prove this. But many are not and don’t see why we should be the ones to take that stand. More to lose than gain, in their eyes. I don’t want the battle between members or the pushing at all. Some things you have to be gentle about and not push. This is one of them, I think.
The board does want to hear from us and is WILLING to consider all these options. But we better have something more convincing than what seems like a loophole in an ATF ruling. The reason I say loophole is because comparing this line of talk with an actual ATF agent telling the board something in person something completely different makes it sound like a loophole. We will have to get someone with the authority at least of the agent to come and talk with the board to counter what was said. No amount of arguing documents will do that. However, they are open to considering anything we bring before them in our meeting we will have.
I should point out that when I say “get someone with the authority” … I do not mean contact the government or ATF on behalf of DMS. What I mean is perhaps an attorney that specializes in such things and has dealt with non-profits/educational and the ATF. Someone that specializes in the laws and rulings. We would have to find them and get the board to contact them.
I think we should focus on the task at hand. Getting Hatcher’s Armory up and running with what we CAN do. It needs to be active and get more gun friendly people active in the space.
The ruling was prompted regarding manufacture, and the conclusion is that shared equipment does not get around having an appropriate license.
It doesn’t matter what prompted the ruling, courts and enforcement are based on precedent and existing interpretations.
Because of this gunsmithing, which requires a license, is easily interpreted as falling under similar prohibitions on shared equipment as evading licensing requirements. You are reading this solely as to the scenario that prompted it, not to its wider impact.
We don’t want to be the test case for trying to change a broader interpretation.
@hon1nbo please read the whole ruling rather than just adding context that isn’t there. The ruling says specifically manufacture for profit in nearly every sentence and way. Expanding it beyond that is just not in that ruling.
@Draco no one is yelling for change or being the test case in the later discussion. Rather, a statement was made that any assembly of a firearm at Dms would be considered manufacture of a firearm based on the atf ruling provided by hon1nbo due to sharing tools. The catch is the ruling selected doesn’t actually say that. As to finding an authority, but not being allowed to talk to the actual authority is a huge problem. I was not at the meeting, I don’t know what was discussed. And now I can’t contact the atf over the issue without possibly losing my membership. I get this, I don’t agree with it, but I do not wish to lose my membership in order to fix it. Because, I can do the things I want currently, I’m just sad that others can’t get the education I was able to get at Dms.
It is a mess at this point. @Draco obviously has the ear of someone on the BOD, probably @Kriskat30 and wants to help Hatcher’s. This is great, as my relationship with Kris is blown up at this point, due to her actions as well as my own. To make matters worse, our leadership had a private meeting with an ATF agent where they asked questions and the agent responded in a manner that made the leadership impose these very restrictive temporary rule.
After the rules came out, the membership was told that we would get a full report from the Agent in regards to what was discussed and how DMS is viewed by the ATF in the context of the meeting. This is where we are stuck. The report from the agent was junk, it was just a set of ATF rulings without any work to put them into context for DMS. For the membership it is like being pulled over by the cops and when you ask the officer what did I do wrong, they hand you all traffic laws and tell you to figure out what they pulled you over for. Then they release you with a warning and tell you to move on and don’t do it again.
We really need to know what was discussed at the meeting. We need to corroborate the statements of the agent with the actual ruling and laws imposed by the ATF in order to understand our position and what is and is not allowed. We don’t have that currently and are now talking about asking for rule changes when we don’t understand the basis for the rules. To make matters worse, this subject is a bit opaque. Many have made up their mind based on the opinions of a “authority figure” without checking or understanding the laws that give the “authority figure” power. The ATF only has the power to regulate companies in the business of firearms and also NFA items. They do not regulate personal firearms, personal gun smithing, and personal reloading. DMS support Personal Reloading and Personal gun smithing, but in no way the manufacture of firearms, because we don’t want to fix, or change firearms or ammunition for people. We want to give people the tools and training to reload their own ammunition, repair and maintain their own firearms, and modify and improve their own firearms. That is the catch in my eyes.
To make matter even worse, we don’t want to spend any money on getting proper legal help on this matter. We would rather the membership self learn, argue, and fight over the topic.
I editted this post to reflect the phrasing I meant, rather than the less exact phrasing I use that @tombakerftw pointed out.
Wasn’t this a Fire Marshall issue rather than an ATF issue?
Don’t you understand why this kind of talk makes people nervous?
We’re a 24 hour volunteer-run facility that has everything one might need to “manufacture” a firearm.
But no, we don’t want to do that, we just want to teach people how it might be done, then trust them not to… C’mon, that does not pass the smell test.
It’s been established that no one here is able to effectively police that kind of activity therefore it is EXTREMELY important that we don’t give the impression that DMS is a place where you could do that. Why? Because technically there’s no way for us to stop it, and the ATF knows that.
To me this means that if we have a committee devoted to firearms then we have to be way more than careful.
The reason is that we are an edge case. The ATF appears to be scrambling to close what has the potential to be a giant loophole in their regulations because makerspaces are a relatively new thing that their rules had not considered before.
So yeah, naturally when a bunch of freedom-loving, technically minded folks get together in Texas to discuss putting together AR’s… (oh it’s just like gun legos, we’re not “manufacturing”! ) The powers that be are gonna get nervous.
Your comments seem to imply that you feel the subject of an unfair witch hunt, but I don’t see it that way. Your body language and rhetoric do your cause no favors.
I’m glad you’ve chosen to step down and let someone with fewer chips on their shoulder take the helm.
@tombakerftw,
I have corrected my post to better explain my intent by my statements.
I in no way want to manufacture firearms at DMS. This would only be a possibility if DMS went through the process of becoming a licensed ATF manufacturer. I am not requesting the rights to manufacture firearms at DMS without an ATF license. I personally do not want to manufacture a firearm, it is too covered in bull shit, while also not being cost effective or of higher quality than the firearms I can purchase.
I have made this statement so many times now that I’m a record on loop at this point.
The BATFE never has once cared whether something is for profit in the sense you are inferring. Their definition of ‘in the business’ is based off the GCA, and means in the course of operations as a part of livelihood and profit, not profit entirely based on a single facet of business. They do not care about the fact they’re not being sold at DMS, but do care about the fact that DMS as an organization has people paying to use the equipment.
They do regulate businesses that provide the shared tools as DMS in engaged in business; that’s the problem, when it comes down to it DMS is a business in the eyes of the BATFE as we are all dues paying members. It doesn’t matter we’re a non-profit, as it’s DMS’ livelihood to rent out tools.
The BATFE doesn’t care what prompts an initial ruling, but they interpret based off what existing rules are in place when faced with something ill-defined. Courts do the same thing, work off existing precedent when the initial statutes or rulings have an edge case.
If an existing rule says you can’t manufacture on a business’ equipment if that business is unlicensed, even as an individual, they’re going to use that as a base precedent with gunsmithing. if an Individual can’t use someone else’s equipment to manufacture to avoid a license, why would the exact same person and shared equipment operator be able to avoid the license requirements for gunsmiths? That’s the type of argument groups like the BATFE use as part of making determinations, and why this 2015 ruling is a problem. The BATFE has always stated that gunsmiths need a license; they now have a ruling that says a business renting tools to individuals can’t evade licenses by letting someone else use their tools. Again, even though the situation that prompted the ruling was around manufacture, it sets precedent regarding shared equipment that we do not want to be a test case for.
tl;dr
We are all customers of DMS in the eyes of the BATFE
Our use of tools here is the livelihood and profit of DMS. Note, profit here refers to actual income not referring to profit in the sense of our IRS status
Gunsmithing requires licensing if not done on an individual basis
The BATFE, when prompted to do so because of numerous cases of shops renting tools to perform manufacturing, released a ruling clarifying that it is no longer just an individual since the machine shops would have a livelihood and profit interest in the renting of the tools for the purpose of firearms
DMS, if renting tools used for gunsmithing, now has a livelihood and profit interest in the renting of tools for work involving firearms.
If some action were to come to DMS, the precedent is that when previously determining if operators of shared equipment were subject to licensing for manufacturing it was decided the same license was required as if they made the firearm themselves, then when currently looking at the case involving gunsmithing is is there enough difference in circumstance to argue that the law should be interpreted differently? This is where we currently lie, and where it would be dangerous to assume the precedent would be interpreted differently. The only variable that’s changed is gunsmithing versus manufacturing. Both require licenses.
Do I think that gunsmithing at DMS should require a license? No, but without a formal clarification then the precedent would likely be used for enforcement actions.
In short: it sucks.
I have a backlog of projects I would love to work on at DMS between my precision rifle, antiques, and pest control guns, but I didn’t just pull this out of my arse. I’ve had to deal with the ATF in one way or another for the past 15+ years and they’re always making interpretations based off previous rulings like this, and even when an individual agent doesn’t they inform you another probably will. When it comes to precedent and edge cases it’s a judgement call of whomever is currently looking at it, and until the BATFE clearly says that “oh, we do in fact think that gunsmithing should be treated differently than manufacturing for the purposes of shared equipment” then because this document doesn’t say either yeah nor neigh to gunsmithing on shared equipment, then it comes down to the interpretation by whatever agent sees it.
One of the agents I dealt with made a determination not based on what he thought was rational, but because he knew other enforcement agents (BATFE or otherwise) would interpret it differently and took the more restrictive approach since there was no ruling explicitly allowing it. This is the type of agency we currently have to deal with; when it’s relying on precedent without a verbatim ruling every answer will be different, and the people who have to pay the price for that are the ones that unfortunately become the test cases.
Tom your TL/DR is longer than the post it is summarizing.
To be specific, the ruling you are talking about explicit says that you can not subvert the Gun Control Act by allowing other to use your tool to manufacture new firearms for themselves or for sale. We are not trying to subvert the Gun Control Act as we are requiring everyone to have a legally purchased firearm as the Gun Control Act requires. That is all that ruling states. It says nothing about gun smithing outside of manufacturing a new firearm.
The ruling does not say that you can not use other’s tool or facillities to do personal gun smithing on a firearm you own, because that doesn’t actually subvert the gun control act. While you may want to construe the ruling that way, it does not say what you are claiming, nor does it make the precedent that you are claiming.
Think about it this way, speeding is illegal and speeding is defined as driving a vehicle faster than the posted speed limit. But, it is not illegal to drive your car faster than other cars, as long as you are below the speed limit. This isn’t a loop hole in the law, it is following the law.
We are not providing the service of gun smithing at DMS. We are providing the training and tools, it is up to the individual to personally do the act of gun smithing on their own legally purchased and owned firearm in accordance with the GCA.
That was the same argument they were trying to use for manufacturing, except we are now using it for gunsmithing. Both are licensed activities for the purposes of the BATFE.
The GCA established the FFL system, in which a gunsmith requires an FFL with the exception of an individual. The entire precedent established here that is of concern is that shared equipment rented by an organization can be seen as subversive to the GCA. Since there is no explicit statement from the ATF regarding gunsmithing, enforcement will look to precedent. Whomever is looking at this could argue it one way or the other, but the ATF tends to lean toward the more restrictive side when it comes to licensing involving an organization and this precedent doesn’t help us.
Do you know how precedent is used? The precedent here was that when evaluating a similar situation that came up, in this case the only difference being manufacturing versus gunsmithing both of which are licensed operations, the BATFE decided that just because the business wasn’t involved in the actual work, they rented the tools and made a business of doing so and thus needed to be licensed.
The point of precedent is that it is looked to when evaluating similar cases, but those that are not yet explicitly defined (edge cases, extenuating circumstances, etc), they look for what has already been evaluated and try to find the meaning of the rulings in addition to whatever is there verbatim. The precedent here is that the BATFE doesn’t care if it’s an individual using the machine, but that a business got involved by renting them the machine for the purpose.
Any enforcement proceeding looking at us is going to look at prior rulings for guidance, and ask why if manufacturer on shared equipment cannot avoid licensing why is gunsmithing any different?
This is what is referred to as Persuasive Precedent; it’s not binding, but it is looked to by whomever ends up evaluating if what DMS is doing is within the confines of the law since there is not an explicit ruling particular to gunsmithing. Sure, we could win in an eventual fight but it’s not something DMS could afford to be the test case for.
This analogy doesn’t make any sense here. The problem is more akin to that of laws regarding cellphone use while driving versus a ham radio.
The laws were written such that CB radio was exempted, but it did not explicitly call out amateur (ham) radios. When electronic devices became illegal in certain jurisdictions to use on public roadways, courts had to settle the case law when they started getting situations with amateur radio operators being ticketed. They looked to the precedent established with CB radios, and even though the systems were not the same nor used for the same purpose, it was overall a similar enough case that they applied the CB laws to amateur radio operators granting them the exemption.
Name’s not Tom, but that Tl;Dr was meant more as for the entirety of my arguments thus far and the situation we are have, including background; not a specific post.
You are allowed to talk to the ATF. Just not on the behalf of DMS. You can go talk to government officials all day long. Talk to them about a community workshop or makerspaces in general, just not this one.
I have spoken to most of the BoD about this subject. They are not unfriendly people and are willing to help. Except Luke Strickland … he runs away. I’m kidding. As far as I can see, they all are willing to listen. But they are not willing to argue. And arguing some of these technical rulings with them isn’t going to fly. They are not an attorney and you are not one either.
The way it was explained to me is it wasn’t a legal opinion or even the ATF telling us anything but just some friendly advice about how to stay out of trouble from an ATF agent. It wasn’t an official ATF visit but someone volunteering their time. I don’t think you are going to get an official response from the ATF specifically for DMS nor do we need one. We really don’t want the ATFs attention.
This is something that I think the board should explain. I agree, they need to show why they are making the ruling the way they are. May I suggest that we all show up for the board meetings? They generally give more reasoning in the meetings but I do think in this case, the reasoning should be written down.
Again, the only way to check with the laws is to consult an attorney specializing in this. Go find one and then we can talk to the board and see if they would be willing to have a consult. An ATF agent cannot give a legal opinion and neither can we.
This is semi-true. They may be willing if a case was made. This is something that we can bring up in the Hatcher’s / Board meeting. But it can’t be a vague idea but instead a well planned idea. They also want us to write some of the exceptions in the rules. We need to come up with the wording.
All this arm chair lawyering is going to get you no where except annoying everyone.
I’ve not been handling any of our firearms policies, I know the policy and how we’re going to enforce it, but for questions or suggestions on it, you should talk to @Photomancer or @dr_cee. I’m booked with other things.
My understanding was that another BATFE agent said that determination was invalid; if that is not the case, then we have a more specific determination than the 2015 that causes a lot more concern and thus would not be an issue for precedent, as this is more specific.
That was my understanding as well when the meeting was first explained to me. But, @Draco has more knowledge than I and I haven’t seen anything in writing or even in any official communication that stated our ruling was incorrect. I know when I got the ruling, the agent said that she had gone through the legal arm of the ATF to get the ruling. So it was not her opinion, but the opinion of the ATF.
In that case, all the previous precedent stuff I had mentioned can be disregarded since we have something more specific, but we need to find out where that statement of it being overruled came from.
Did you get a control number with the document by chance? With a control number we can find out where in the chain someone either would have pulled it, or any determination would have superseded it.
) The powers that be are gonna get nervous.
Tom your TL/DR is longer than the post it is summarizing.
