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OSD 95: Schrödinger’s gat — the ATF and Polymer80
The ATF secretly changed its mind about certain 80% build kits. Now what?
You’ve probably already seen the news that the ATF raided Polymer80 this week. (There was also an anecdotal report of the ATF visiting at least one Polymer80 customer and confiscating the gun he’d made with a kit from the company.) You may even have seen that 80% Arms, a competitor to Polymer80, put out a statement condemning the raid, and that the Firearms Policy Coalition is already recruiting Polymer80 customers to join a lawsuit about this. Definitely contact FPC if you’d like to be involved.
Let’s discuss what this all means. First, a flashback to OSD 90: Weaponized ATFism:
A while ago, we sent some thoughts to the current presidential administration answering the question, “What can we singlehandedly deliver for gun rights?” Here’s the list we sent them:
Redefine “armor-piercing ammo” to re-allow previously banned ammo types
Redefine 922(r) out of existence
Repeal Bush 41’s assault weapon import ban
Bring back kitchen table FFLs, and make a new internet-sales FFL (this is in the 2017 ATF white paper)
Repeal the photos and fingerprints parts of ATF Rule 41F (an Obama-era rule change), so that trusts don’t need photos and fingerprints for their members. (Careful here: Rule 41F also changed “you need CLEO approval” to “you just need to notify your CLEO, but they can’t stop you” — that was a very important positive change that we should keep.)
Expansive allowance for pistol braces. Basically make it official that anything goes.
Grant a blanket “lawful purposes” exemption for gun possession to all people in the country on nonimmigrant visas (tourists, H1Bs, etc.)
Machine gun amnesty (Forgotten Weapons’s explanation)
Presumptive approvals for Form 1s and Form 4s. They approve it right away, and then can claw it back 10 months later or whatever if you get denied. Precedent: this is how NICS checks already work — if you don’t get a yes/no within 3 days, you can take the gun home and then they just claw it back if you eventually get rejected.
C&R firearms are defined as any gun more than 50 years old, or any gun that the ATF deems to be a C&R. They could add a massive influx of modern guns to the C&R list. Basically all the cool ‘70s–‘90s guns. There’s no reason the Steyr AUG and MP5 and FAL and the like shouldn’t be considered classics. Hell, AKs too.
Over the next four years, the thing to gameplan is “What if the ATF did have a grand strategy — and what if that strategy was aimed at using the ATF’s rule-making powers to maximally constrain gun rights?” In other words: what would a competently weaponized ATF do? It would come up with the inverse of our list.
Officially, these things all run according to a set of laws and administrative rules. In reality, the laws and rules are enacted through a vast body of unwritten norms, which often turn out to be more important than the underlying laws. One example of such a norm would be, “If we tell you explicitly that your product is legal, we won’t secretly change our mind about that several years later. And if we did secretly change our mind, we’d update you about that instead of raiding your business by surprise based on our new secret interpretation of the law.”
But that’s not written down anywhere, because even if you did write it down, there’d be a thousand other assumed norms that you can’t articulate ahead of time in order to write them down. So at some point you have to draw a box around a subset of the issues and say, “Ok, we can fight about the details of the other stuff, but within this box, let’s save ourselves both some time and say the rule is just ‘Try to be cool’, ok?”.
That’s the point of norms — they’re the grease that allows organizational relationships to actually function instead of just sending written policies back and forth all day, clarifying detail after fractal detail. Now, of course, organizations do get mired in that sort of thing all the time. But norms help keep that time-sink sandboxed.
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.
This week’s links
This was in response to the request from the class’s teacher on reddit a couple weeks ago. Super well-received by the students.
FOID card applications increased 167% from 166,649 in 2017 to 445,945 as of November 2020, blowing past the small surge in 2013 when CCL was enacted.
More than 400,000 calls came into the [Firearms Services Bureau] Call Center from May to November when a new automated phone system with metrics was activated.
Disclaimer that this is unofficial forum scuttlebutt rather than an announced policy. But forum-scuttlebutt-rather-than-announced-policy is the de facto standard way that ATF rule changes are communicated.
The writer’s view of gun culture is unfortunately quite blinkered, but that underlines the progress represented by the fact that they went out and reported this piece.
The proximate cause was a New York Times investigation finding that users were uploading illegal content to the site. The second-order danger, though, is that you’re nearly certain to be able to find illegal content on any large platform for user-generated content. And no company at any level of technical expertise, from Google and Facebook on down, can fully prevent that.
So when everybody’s guilty, getting shut down is only a matter of whether someone decides that it’s time to take a look at you. That’s not a world that’ll make anybody happy in the long-run.
Some inside-baseball from The Intercept. These things can turn on a dime, but interesting to hear the conversations that are happening.
Here’s what Biden told the civil rights leaders:
Our only hope and the way to deal with it is, where I have executive authority, I will use it to undo every single damn thing this guy has done by executive authority, but I’m not going to exercise executive authority where it’s a question, where I can come along and say, ‘I can do away with assault weapons.’ There’s no executive authority to do away that. And no one has fought harder to get rid of assault weapons than me, me, but you can’t do it by executive order. We do that, next guy comes along and says, Well, guess what? By executive order, I guess everybody can have machine guns again. So we gotta be careful.
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