OSD 257: Greed is good — civil disobedience edition

“Led by an invisible hand to promote an end which was no part of his intention.”

The Wall Street Journal ran a piece last week diving into Larry Vickers’ prosecution on NFA violations. The article contained some new details, including this one on what put the ATF onto Vickers in the first place:

It was a single gun sold online by an Arizona man with the username “Mr_Big_Koch” that played a vital role in cracking the case.

Christopher Fiorentino dabbled in bitcoin, real estate and firearms made by the German company Heckler & Koch, hence his username on an online gun marketplace. He lived in a wealthy Phoenix suburb, and owned an Aston Martin and a Mercedes-Benz G wagon.

Investigators at the ATF grew suspicious when a dealer in Florida reported that a gun it had purchased from Fiorentino appeared to be a highly regulated short-barreled rifle. They discovered that Mr_Big_Koch was selling a lot of guns and didn’t have a dealer’s license, prosecutors allege.

The ATF was able to use that as a legal foothold to raid Fiorentino’s house, which led to them discovering text messages between Fiorentino and one Sean Sullivan. They then investigated Sullivan and found that he and Vickers were working together on what the ATF viewed as NFA violations.

We outlined this case a few months ago in “OSD 244: You’re so vague you probably think this law is about you”. This long excerpt is a useful refresher:

18 USC § 922(o) reads:

(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.

(2) This subsection does not apply with respect to—

(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or

(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.

Since 1986, that section of law has prevented the purchase of new machine guns. Subsection (2)(A) creates an exception to that for government agencies, including law enforcement, and that’s what Vickers is charged with conspiring to violate. The way the exception works is that if you’re an appropriately licensed FFL, you can import or buy a machine gun if a law enforcement agency asks you to demo it for them. Vickers was himself an appropriately licensed FFL and had a buddy who was also such an FFL. Vickers also had some buddies who were chiefs of their local police departments.

According to the plea agreement, from time to time Vickers would text one of his chief-of-police buddies and say, in effect, “Hey there’s this cool machine gun out there. If you jump through the hoop of writing me a letter saying that you’re at least theoretically interested in testing it out for your department, then I can order it and we can play with it.”

Which seems … perfectly legal? Sure, it’s not the spirit of the law, but in court the letter of the law is what counts. As is tradition, Congress left it up to an administrative agency to write the actual details that matter. The ATF did so in 27 CFR § 479.105(d):

Subject to compliance with the provisions of this part, applications to transfer and register a machine gun manufactured or imported on or after May 19, 1986, to dealers qualified under this part will be approved if it is established by specific information the expected governmental customers who would require a demonstration of the weapon, information as to the availability of the machine gun to fill subsequent orders, and letters from governmental entities expressing a need for a particular model or interest in seeing a demonstration of a particular weapon.

So if the police chief writes you a letter saying he’s interested in demoing a particular machine gun, you can buy it. Hmm, sounds like Vickers is still in the clear.

The law is so vague that the ATF has had to release open letters explaining what they really meant when they wrote the regulation (which regulation was itself written by the ATF to explain what Congress really meant when it wrote the law). The latest open letter, from January 2023, says among other things that the police demo letter has to be “written on the government entity’s letterhead” and “dated within one (1) year of the date of the receipt of the application”. These are the formatting details that the ATF uses to discern your true intent.

Another fun fact: the letter gets submitted to the ATF along with your application to transfer the machine gun. So Vickers got his demo letters over the years, submitted them to the ATF, the ATF approved them, and then years later the ATF looked into it and decided that when the police chief said he was potentially interested in demoing the guns, he wasn’t really interested enough. How much interest is enough? How serious does the police chief have to be? How would you even measure his seriousness? Can he change his mind later? It doesn’t say anywhere in the law, but the ATF is free to decide on the answer years after your purchase and then prosecute you accordingly.

With that background plus the facts in the Wall Street Journal article, four things become clear:

1. The law is stupid.

2. The law is widely treated as the silly hoop-jumping exercise that it is, and violations are rampant (at least if we’re applying the standard that the ATF applied to Vickers). Thought exercise: what percentage of demo letters lead to a purchase order?

3. You can squint at the law and say, “Hey, the law doesn’t say how serious the police department needs to be about buying the gun. If the chief has an idle curiosity about it and there’s a 0.00001% chance that he might one day buy one or use it to educate himself on gun purchases for his department, doesn’t that technically satisfy the requirements of the law?” Technically you’d be correct.

4. A rational actor will recognize that all of the above simultaneously (a) is true and (b) absolutely does not matter in the eyes of the ATF or the courts.

If you’re right and the law is wrong, you’re still going to prison. Being right is not a safe legal strategy.

Three things to say about all this:

First: you have a responsibility to be effective for your loved ones and for the causes that you care about. It is nearly impossible to be effective from prison. Therefore you should have a strong bias against doing things that will put you in prison. And that bias should be especially strong when it comes to doing anything that makes it really, really easy for a prosecutor to convict you. Don’t make yourself easy to stop.

Second: there’s a common counter to the “don’t go to prison” advice: what about civil disobedience? Some argue you have a duty to disregard bad laws, in order to undermine them. Sure. If the cause you’re working towards is the repeal of a bad law, and going to prison is going to be effective in that cause, then maybe that’s a good plan. But the first point (don’t make yourself easy to stop) still holds — i.e. it is self-defeating to throw away your freedom loosely. And empirically, there are innumerably more people silently rotting in prison because of bad laws than there are people whose conviction did anything to reduce the chances of the next person’s persecution.

Third: wait, come on. This wasn’t civil disobedience. This was some guys who like money and cool guns playing the world’s most dangerous game of hopscotch on the NFA, just so they could get some money and cool guns. It was consumerism and self-interest.

And that’s … totally fine. Good, even. Because the effect is the same, but profit makes the process that produces that effect more sustainable. We wrote about civil disobedience as a discovery mechanism for vulnerable sections of law at “OSD 114: One size fits each”. At the community level, civil disobedience is useful even though it’s costly to the individuals who practice it. The self-indulgent impulse of “I just want to buy cool stuff” has the useful side effect of incentivizing civil disobedience, which in turn helps the community discover which bad laws are ripe for challenge.

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This week’s links

BBC story on blank-firing guns in the UK being converted to real guns

Criminal demand for guns is inelastic to the difficulty of getting them.

Police figures reveal there were 64 discharges from converted models in 2023, compared with 42 from real equivalent weapons.

Thank you to OSD Discord user @Desolator for this one.

Armanet, a gun friendly-digital ad network

A profile of this company which just launched publicly. Full disclosure, we’re seed investors.

Know any other seed-stage companies we should invest in? Reach out, we’d love to hear from you.

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OSD Discord server

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Merch

Gun apparel you can wear out of the house.

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