OSD 105: The ATF is giving out machine guns, whether you want one or not

The Tommy Built T36 is readily convertible into a machine gun. No tools required. All it needs is the ATF's pen.

Tom Bostic manufactures clones of the HK G36. He has a small company called Tommy Built Tactical, and his clone — he calls it the T36 — is top-shelf stuff. Here’s Garand Thumb reviewing his personal T36. Here’s Colion Noir reviewing his. Here’s Larry Vickers interviewing Tom about the gun. Here’s Brownells selling them.

This is a benchmark-setting gun, and it’s about as popular as a $3000 gun can get.

Tom’s been making the T36 ever since 2018, when he got ATF approval to build them. Last week, Tom announced that the ATF had changed its mind.

The bureau informed Tom that it had decided the T36 — the same T36 it approved for sale two years ago — is actually a machine gun, and therefore illegal for normal people to possess. Not just illegal to start possessing or to keep selling. Illegal retroactively. This week every T36 in the country got retroactively poofed into a machine gun. A few thousand people woke up with a ten-year federal felony sitting in their safe, and they still don’t know it.

Ok. Surprise felonies, turn in your guns, confiscation, etc. That’s all worth talking about. But first, the most basic question: what’s the paperwork you get when the ATF decides to retroactively ban your product and felonize your entire customer base? Well, here’s Tom explaining how it works (transcript edited a bit for clarity):

[The ATF] showed up in late August and said basically, “Hey, it’s a machine gun, we’ve deemed it a machine gun.” I said, “What? When did this happen?”

They’re like, “Well we just deemed it a machine gun.”

I was like, “Ok, well where is my paperwork?”

“We don’t have any paperwork.”

“What do you mean you don’t have any paperwork? Is there, like, a report?”

“There is a report, but you can’t have it.”

“Wait a minute, you’re telling me it’s a machine gun, and there’s a report, but I can’t have the report.”

“You would have to go to court in order to get this report.”

“You gotta give me something, fellas. You can’t just come in my shop and tell me that it’s a machine gun and I have no more information. How did you guys come up with this conclusion?”

“Well, from what I understand, they were able to beat a [full auto bolt] carrier in it past the stops, and then they were able to modify a [full auto] lower and get the lower to go on it, and they were able to get it to shoot.”

“So you guys get a registered trigger pack, and then you beat a carrier in, damaging the receiver and essentially using [the carrier] as a broach, tearing the plastic up as it went through, and then you were able to get it to shoot? Did it even shoot? Did it jam? Because I would imagine that when the carrier came back, it would get stuck and it probably wouldn’t fire again.”

That’s as much information as Tom has. The ATF’s official notice was served not on paper, but via a shop floor debate about a secret report on an unspecified method of allegedly hammering rare full-auto parts into a T36, destroying the gun in the process.

By all indications, both on the shop floor and back at ATF HQ, Tom is the only person involved in the saga who actually knows how the G36 and T36 work. That’s the key lever here: the ATF doesn’t have to know how the guns work. They can use a hammer to smash some parts together, get the gun to go off once, break the gun while they do it, and then write that down in a report that nobody’s allowed to see.

And that’s a success! That’s “taking machine guns off the street”. It’ll be a highlight in the annual performance review of the agent who did it. When those are the incentives, it would be genuinely stupid for ATF agents to invest time in doing the right thing. Just invest in a hammer.

News of this has spread through social media, but there’s been zero communication from the ATF about it. So if you own a T36 and happen to follow Tom on Instagram, you might know you can mail him your T36 to be destroyed and replaced with a tweaked design called the TG36. (In the video above, Tom notes the ATF has already refused to tell him in writing whether or not the TG36 is a machine gun. More to the point, it doesn’t matter, because the ATF could just change its mind later again.)

He’s charging $225 for that service, which is far below his cost. For people who’ve SBRed their T36 and will need to buy another tax stamp for their new TG36, Tom is even eating the cost of the new tax stamp and charging just $25 for the TG36. (If you’re not a Tommy Built customer, consider supporting them by becoming one. They’re one of the most innovative small businesses in the gun industry, take care of their customers, and even have a civilian HK MP7 clone in the works.)

But for the thousands of T36 owners who won’t happen to hear about this through social media, the ATF is doing no outreach about it. (They haven’t, as noted above, even explained their decision to the manufacturer.) So for those owners there are two possible outcomes:

1. Nobody ever notices they own a T36.

2. Somebody does notice they own a T36, and the first time they hear about this change is when ATF agents inform them they’re violating 18 U.S.C. § 922(o): “Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.”

So, where do things go from here?

First, the ATF has not actually been challenged on this. At this point, the price they’ve been willing to pay is “Send a couple guys from the Baltimore office over to Tom’s shop after lunch.” So they’re basically getting it done for the cost of the gas money. If the ATF gets sued over this, they’ll have to — for the first time in the entire saga — think about whether the juice is worth the squeeze.. Tom doesn’t have the money to make that happen, but he has a lot of good will, a legit case, and a bunch of powerful people who like nice HK clones. A lawsuit is plausible, albeit not certain.

Second, this sort of thing has been happening for ages. The general shape of this is that the ATF asserts the power to retroactively criminalize behavior. The process goes like this:

1. The ATF says an item is legal.

2. It allows people to buy the item for years.

3. It then announces that it has a new, more expansive interpretation of the law. The item is now banned, and the owners are transubstantiated into felons.

Each time this happens, the focus is on step 3 — whether the new interpretation of the law is correct. Arguing with the ATF about the local correctness of their opinions on pistol braces or 80% receivers or bump stocks. Those are all fine discussions, but the underlying problem is that the ATF asserts the power to have the discussion at all. The problem is in step 0. This isn’t about whether the wrong things are being retroactively criminalized, it’s about anything being retroactively criminalized.

For all of recent history, the ATF has been playing on easy mode with this stuff. A couple months ago, when they changed their mind about Polymer80’s build kits, we wrote this (italic emphasis added):

If you were advising a proactively weaponized ATF, you’d be foolish to focus on the written rules. Those are hard to change, people complain, Congress gets involved, it’s a slog. Instead, you’d throw the unwritten norms out the window. Ban things you previously said were legal, and raid the manufacturers over it. Suddenly start rejecting tax stamp applications for minor errors, without giving applicants a chance to correct them. And when people start complaining, you can deny that anything even changed — because nothing did, at least not in writing.

The flip side to that coin, though, is that norms work to stabilize a relationship. And relationships are two-sided. So when one side unilaterally throws out the norms, now both sides of the relationship are destabilized, and therefore suddenly hard to predict. For the past few years, manufacturers (particularly in the pistol brace and 80% receiver industries) have tried hard to play ball with the ATF. With the ATF suddenly signaling that it doesn’t want to play anymore, we’ll see what manufacturers —and customers — do.

One effect: this is likely to accelerate technology and business practices that are fundamentally ungovernable. You can model reliable, stable norms essentially as “incentive to play ball with the system” — it’s not all peachy, but hey, you get predictability. Getting rid of that incentive isn’t the end of the game, it’s the beginning. It’ll be interesting to see how it plays out.

We’re not psychic. But sometimes, noticing enough detail about the past allows you to predict the future pretty well. The kafkaesque shifting of unwritten norms. The sudden mood swings about what’s legal. The careful avoidance of putting anything in writing. It all happened with the T36, but that’s only the latest instance of a decades-long pattern.

Where that goes from here is up in the air. This implicates Second Amendment issues. It also implicates Fifth Amendment and administrative state issues. In this T36 saga, the current Supreme Court would be friendlier on all those fronts to Tom & Co. than any Court in recent memory.

There’s no telling if that would be enough, and there’d be a long way to go before this case (if it even becomes a case) makes it that far. But these issues are only getting more ripe.

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This week’s links

Montana becomes the 18th state to pass constitutional carry

As @2Aupdates noted:

Another bit of state law news, Ohio repealed the duty-to-retreat requirement from its self-defense laws this week.

Calibre Obscura on the Yemeni market for ZEV Glocks

Going for a cool $10,000 over there. Side note, @CalibreObscura is a great follow.

A look at the $100 billion future of America’s arsenal of land-based nukes

A little bigger than the gear we normally talk about here, but lots of interesting details about the national network of missile silos.

Defense thinkers began to argue that the susceptible nature of America’s silo-based nuclear missiles was not a flaw but a feature. They redefined the silos as intentionally vulnerable, designed to make Moscow use up weapons. This rationale continues today. “The ICBM force provides a cost-imposing strategy on an adversary,” Mattis explained to a Senate committee in 2017. Because they are meant to draw nuclear attacks like a sponge draws water, military analysts have long called America’s land-based missiles the “nuclear sponge.”

Congressional Research Service report on “handguns, stabilizing braces, and related components”

Nothing in here that you haven’t seen, but Congress’s in-house think tank just released their summary of the pistol brace kerfuffle from December.

Bill introduced in the Virginia legislature to ban 80% firearms

Unclear how much of a chance it has at becoming law, but stay frosty.

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