@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.
I didn’t,
But, given permission from the BOD, I’m sure we could reach out to Anita for more help. She was incredibly helpful in explaining and working with the legal arm to get an opinion for DMS quickly. I’m talking a week rather than the response time of still waiting after 6 months as others have been dealing with. I will note that I’ve read that opinions like ours are legal for the group they were given to, but not for any other group.
As far as I know there have not been any documents in writing from the ATF that we have that have directly opposed the letter that Nick got. There have been phone calls with other members with the ATF and unofficial personal visits from ATF agents that say it was incorrect. I think the board brought up many of these issues in the visit. But I think we are confusing the issue here. This is not a technical issue but a trust issue and a CYA issue. It is the board’s duty to protect the makerspace for all and not just try and get away with something that seems dubious. We have to think about things from that perspective. What is best for DMS as a whole and for the long term?
An official ruling from the ATF of what they’re official position on the matter would be best as that would be the least confusing and most definitive(until a new official ruling is given out) would be a logical conclusion.
I agree with @Ferman, we have done the CYA and gotten an official written opinion on the matter. if anything, the other non-official stuff are the dubious arguments here.
I agree. The letter Nick got was not an ATF ruling but an opinion. And we have gotten other opinions from other agents that makes things dubious. Until there is a ruling or something more substantial that takes away the uneasiness, I don’t think we will make much headway in this direction. This is why I want to pause this line and pursuit until we can come up with something better. Can we move past this one issue for a while and talk about what exceptions we actually want to get? We have alot of work to do, coming up with ideas that might be acceptable.
We need an exception on doing things with bullets and casing that do not involve gunpowder and primers.
There needs to be some clear examples that we need to come up with that we can discuss.
For example, we bring up an airsoft gun. It doesn’t function like a firearm and should be exempted but the rules are cloudy.
Airsoft should not be covered by this rule …
Replicas: replicas are meant to look and mechanically act like a firearm and the inability to readily
differentiate the two means they and their components are NOT EXEMPTED and are prohibited like
firearms.
Also, this rule
exempt except that any parts that are interchangeable on a firearm and
are not exempted (e.g. sighting devices).
You should be able to put sighting devices on any non-firearm. As well as put a gun stock on your crossbow.
The Reloading section should not be listed twice.
This needs to be reworded
General advice: If in doubt, do not bring it into DMS. Accidentally bringing a firearm or replica to work
on it is not a defense and may result in expulsion.
General advice: Firearm are permitted at DMS, however if in doubt, do not bring it in. Accidentally working on a firearm in a manner that goes against these rules is not a defense and may result in expulsion.
Tom your TL/DR is longer than the post it is summarizing.
