Need Help with a Hunting Citation Call Prince Law

Recently, I have been asked to help one with a hunting citation. So, I may be able to help you out.

A hunting citation is similar to a criminal citation except one wants to also preserve their hunting rights.

I recently procured a golden deal for an alleged criminal that preserved his hunting rights. The golden deal comprised of preserving his hunting rights; allowing him to hunt immediately with a bow, or even a crossbow; and for one year only, he could not hunt with a firearm.

Not that I am giving away some behind the scenes secret regarding Attorneys, but we do not know everything. No Attorney knows everything, so beware of those who claim they do.

In general attorneys have three years of law school before passing the bar and may obtain more legal degrees, but are not taught procedures, or are taught only some procedures. It would take 20-years or more of law school to know everything about the law. Remember, we have the best legal system in the world, but people are fallible. Thus, the legal system is fallible.

Being in court is where I feel at home. I have Master’s Degree from Temple University School of Law in Trial Advocacy where not only did I win an award for Trial Advocacy but I competed against some of the best in the industry, outperformed those attorneys who had twenty to thirty years of experience, and the compliments came from the Jurors and Judge, not from me.

So, if you have a hunting citation or need some help with Hunting Law, give me call.

Here below is a cite for the 2014-15 Hunting Seasons and Bag Limits.

There are also links for: a Downloadable Calendar of PA Hunting & Trapping Seasons, 2014-15 Migratory Game Bird Brochure and 2014-15 Season Forecasts

2014-15 Hunting Seasons and Bag Limits

http://www.portal.state.pa.us/portal/server.pt?open=514&objID=576240&mode=2

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Redesign or Redefine: An Open Response to ATF’s Unstable Determinations

If there was any question about whether ATF was paying attention to what individuals were using their SigTac SB15 Braces for, it has just been answered. ATF released an open letter to the industry today which hit my mailbox at 4:36 PM. The letter in its entirety can be found here.

Since the SigTac SB15 hit the market it has caused quite the controversy. As I alluded to in a previous blog post there was a segment of the population which contended it was a “loophole” or way to “cheat” the system from having to complete a Form 1 or Form 4 to make or transfer a short barreled rifle. It seems that ATF has taken that exact stance.

sigbrace

Whether, it was the influx of requests for clarification about the use of the device sent to the Firearms Industry Technology Services Branch (FITSB) or the abundance of YouTube videos, Facebook postings and Instagram photos, ATF has once again created another “shoe-string machine gun” type ruling. Let’s examine this new literary masterpiece entitled “OPEN LETTER ON THE REDESIGN OF ‘STABILIZING BRACES’” together. It’s worth noting that this response comes from the Firearms and Ammunition Technology Branch (FATD) instead of FITSB.

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FATD begins the letter by explaining that “stabilizing braces” are described as a “shooter’s aid that is designed to improve the single-handed shooting performance of buffer tube equipped pistols.” The letter continues that the items are intended to improve accuracy by using the operator’s forearm to provide a stable support for the AR-type pistol. Attachment of such a brace DOES NOT alter the classification of the firearm OR subject the firearm to the National Firearms Act of 1934 (NFA). However, according to ATF, that classification is predicated on whether a user is actually using the device as it was designed. FATD then notes that “When the device is redesigned for use as a shoulder stock on a handgun with a rifled barrel under 16 inches in length, the firearm is properly classified as a firearm under NFA.” (Emphasis added).

The letter continues with the, what should now be familiar, definition of “firearm” under NFA.

“…(2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length;

(3) a rifle having a barrel or barrels of less than 16 inches in length;”

And that a “rifle” and “shotgun” are defined as “a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder…” (Emphasis by ATF).

FATD continues, “pursuant to the plain language of the statute, ATF and its predecessor agency have long held that a pistol with a barrel less than 16 inches in length and an attached should stock is a NFA ‘firearm’.” (Emphasis added). As evidence of this, the letter cites to Revenue Ruling 61-45 which determined that Luger and Mauser pistols having a barrel length of less than 16 inches in length and attached shoulder stocks classified them as short barreled rifles.

The letter goes on to explain that when ATF classified the originally submitted design, ATF considered the objective design as well as the stated purpose. ATF includes a quote that was submitted with the sample for FTISB to consider when classifying the design.

The intent of the buffer tube forearm brace is to facilitate one handed firing of the AR15 pistol for those with limited strength or mobility due to a handicap. It also performs the function of sufficiently padding the buffer tube in order to reduce bruising to the forearm while firing with one hand. Sliding and securing the brace onto ones forearm and latching the Velcro straps, distributes the weight of the weapon evenly and assures a snug fit. Therefore, it is no longer necessary to dangerously “muscle” this large pistol during the one handed aiming process, and recoil is dispersed significantly, resulting in more accurate shooting without compromising safety or comfort.

ATF’s response to the request for classification noted that “a shooter would insert his or her forearm into the device…” which pursuant to the information provided would mean the device was “…not designed or intended to fire a weapon from the shoulder.” FATD clarifies that in making the initial classification ATF determined that the objective design characteristics of the stabilizing brace supported the stated intent.

sb15firearmblog

Photo Credit: The Firearm Blog

FATD confirms that if the SigTac SB15 brace is used as designed (to assist shooters in stabilizing a handgun while shooting with a single hand) the device is not considered a shoulder stock. “ATF has received numerous inquiries regarding alternate uses for the device, including using it as a shoulder stock.” (Emphasis added). FATD then states that because NFA defines both rifle and shotgun to “include any ‘weapon designed or redesigned, made or remade, and intended to be fired from the shoulder,’ and person who redesigns a stabilizing brace for use as a shoulder stock makes a NFA firearm when attached to a pistol with a rifled barrel under 16 inches in length or a handgun with a smooth bore under 18 inches in length.”

The letter notes that the Gun Control Act of 1968 (GCA) does not define the term “redesign” and therefore ATF applies the common meaning. ATF utilizes Webster’s II New College Dictionary which defines “redesign” as “to alter the appearance or function of.” FATD continues that this is not a novel interpretation and gives some previous rulings related to destructive devices and any other weapons.

dictionary

FATD explains that the brace was neither designed nor approved to be used as a shoulder stock and that the use of the brace as a shoulder stock constitutes a redesign of the device because a possessor has changed the very function of the item. The letter concludes that “Any individual letters stating otherwise are contrary to the plain language of the NFA, misapply Federal Law, and are hereby revoked.”

I wonder how many dictionaries ATF poured through to cherry pick that definition out of.

http://www.merriam-webster.com/ defines “redesign” as “to change the design of (something)”.

Even if we utilize the definition that ATF so generously provided, how does misusing the SigTac SB15 brace by shouldering it alter the function of the device? It still functions exactly as it were designed. An individual could use a spoon in order to cut their food but it still retains its true function as a spoon.

ATF claims that it applies common meaning when using the term “redesign”. I don’t know of a single person who would think that “redesign” entails the misuse of an object. If anything, I would venture to say it would require the individual to modify an existing object. If I were to use a screw driver to pry open an object did I just redesign it? Is using a pencil to drum on the table redesigning it into a drum stick?

It appears that I’m not the only one perplexed by this definition. Aaron Cowan, the lead instructor from Sage Dynamics, posed this question to ATF in a letter he penned to them after reading this determination.

Will the ATF and/or FATD further define their definition of “designed” or “redesigned” as my understanding of both words means a physical alteration and/or creation of additional features that permanently change the physical nature, profile, weight or contour of a device. By placing a stabilizing brace against the shoulder portion of the body, no actual design or redesign has occurred, the brace simply is applied to a different part of the body.

Not to mention, where does this “redesign” that FATD contends happens occur? The inanimate object didn’t magically shapeshift. Using ATF’s logic, if I were to grab hold of my magazine on an AR-15 and use it to stabilize my gun I’ve now created a vertical foregrip…

Going back to the hypothetical I posed previously, if an individual builds an AR-type pistol using a SigTac SB-15 brace, uses it in the manner for which it were designed and then hands it to a friend who shoulders it, did the friend just “redesign” the brace? According to this letter they just did. So is the firearm no longer a pistol and now a SBR?

Let’s take a quick trip down memory lane to NFA’s definition of “make”.

Make.—The term “make”, and the various derivatives of such word, shall include manufacturing (other than by one qualified to engage in such a business under this chapter), putting together, altering, any combination of these, or otherwise producing a firearm.” 26 U.S.C. § 5845(i)

What isn’t defined is the term “design”. Since I don’t have a dictionary from 1934 handy to see what it might have meant then, I’ll refer to Merriam-Webster’s website again. They define the term “design” to mean “to plan and make (something) for a specific use or purpose. So if redesigning (using the definition from Merriam-Webster) means to change the design of something (which only logically would follow that it would require some alteration to the actual object), how does the misuse of an object constitute the redesign of it? It would only make sense that even though the object may be misused, it still retains all of the characteristics that made it suitable for it’s original specific use or purpose, at which point one can only conclude that nothing has changed.

In order for ATF’s skewed version of reality to work, it requires that the object being redesigned require no alteration whatsoever. It’s evident why ATF picked the definition of redesign it did. If altering the function of an object can be achieved by merely using it in a different manner then by that definition it was “redesigned”. Combined with the intent requirement from the definition of “rifle” the firearm has now become a rifle.

As with everything, the devil is in the details. Courts typically give great deference to administrative agencies but I’d be curious to see which dictionary a court would select if this were to be challenged in any capacity. What makes Webster’s II New College Dictionary the authority on the definition of “redesign”? As it turns out, probably nothing.

“I think that it’s probably wrong, in almost all situations, to use a dictionary in the courtroom,” said Jesse Sheidlower, the editor at large of the Oxford English Dictionary. “Dictionary definitions are written with a lot of things in mind, but rigorously circumscribing the exact meanings and connotations of terms is not usually one of them.”

Mr. Shieldlower continued “It’s easy to stack the deck by finding a definition that does or does not highlight a nuance that you’re interested in.” Even the Supreme Court Justices themselves have utilized over 120 different dictionaries in defining terms which would be suggestive of “cherry picking”. Not to mention, some of the Justices interested in the original meaning utilize dictionaries from the time period to obtain their definitions. There is no question in my mind that ATF didn’t grab the first dictionary available and use it.

If you or anyone you know has an encounter with law enforcement regarding the legality of the use of a SigTac SB15 brace or were arrested and want legal representation, don’t hesitate to contact us at 1-800-313-0416.

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PRESS RELEASE: Lawsuit Filed Against City of Harrisburg Regarding Its Illegal Firearm and Ammunition Ordinances

Today, Firearms Industry Consulting Group, a division of Prince Law Offices, P.C., filed an 87 page Complaint, plus exhibits, against the City of Harrisburg, Mayor Papenfuse and Police Chief Carter on behalf of Firearm Owners Against Crime (FOAC) and four individual plaintiffs regarding the City’s illegal and unconstitutional firearm and ammunition ordinances, regulations and policies, including:  3-345.1 – Possession of firearms by minors, 3-345.2 – Discharging weapons or firearms, 3-345.4 – Lost and stolen firearms, 3-355.2 – Emergency measures, and 10-301.13 – Hunting, firearms and fishing. It is docket no. 2015-CV-354-EQ. Unlike the previous complaint that was filed only pursuant to 18 Pa.C.S. § 6120, in this suit, Chief Counsel Joshua Prince argues that the City’s ordinances are violative of 18 Pa.C.S. § 6120, Article 1, Section 21 of the Pennsylvania Constitution, and the Second Amendment to the U.S. Constitution. Accordingly, it is also brought pursuant to 42 U.S.C. § 1983 for deprivation of civil liberties under color of law.

Although the City was provided an opportunity to repeal its illegal ordinances, in direct defiance of the state crime of Official Oppression, as well as, Section 6120, Mayor Papenfuse declared to Penn Live reporter Christine Vendel: “The city’s not going to repeal its ordinances, because our police department feels that they are in the public interest, and I do too.” Further, Police Chief Carter declared that: “officers regularly cite violators for reckless discharge of guns in the city and when minors are caught in possession of firearms.”

Mayor Papenfuse appears to be unaware that the Commonwealth Court in Dillon v. City of Erie, 83 A.3d 467, 473 (Pa. Cmwlth. 2014), already ruled that the City of Erie’s ordinance prohibiting possession of firearms in parks, which is identical to 10-301.13, was unconstitutional and in violation of Section 6120. Further, in Clarke v. House of Representatives, 957 A.2d 361 (Pa. Cmwlth. Ct. 2008), the Commonwealth Court held that the City of Philadelphia’s lost and stolen ordinance was in violation or Article 1, Section 21 and Section 6120.

It is unfortunate that City’s taxpayers will be burdened by the City’s elected officials and law enforcement officers believing it is acceptable, and even gloating, that they are violating the Crimes Code by charging individuals, pursuant to illegal and unlawful ordinances, regulations and policies and refusing to repeal such illegal provisions.

As it is a misdemeanor of the first degree to violate Section 6120, pursuant to 18 Pa.C.S. § 6119, we call upon Dauphin County District Attorney Ed Marsico to bring charges against the City and its representatives for their violations of the Crimes Code, including conspiracy, solicitation, aiding and abetting, official oppression, and Section 6120. It is time that our elected officials be held accountable for their actions.

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Firearms Law Seminar – March 7, 2015 – in Support of Jim Smith for Berks County Judge!

FirearmsFlyer

On Saturday, March 7, 2015, from 10am to 2pm, Chief Counsel Joshua Prince from the Firearms Industry Consulting Group, a division of Prince Law Offices, P.C., and Attorney Eric Winter from Prince Law Offices, P.C. will present on federal and state firearms law issues at Berks Fire Water Restorations, 1145 Commons Boulevard, Reading, PA 19605. This seminar is being offered in support of Jim Smith’s campaign to become a Judge in Berks County and requires a donation of $25 to the Friends of Jim Smith. All attendees must RSVP by February 27, 2015.

Attorneys Prince and Winter will discuss everything from the types of firearms that we can own in PA, to what constitutes a prohibited person under state and federal law, to firearm estate planning, to use of force in a self-defense situation. There will also be a question and answer period for anyone to ask any questions that they may have. How often do you get unfettered access to firearms legal advice for a 4 hour period, for a mere donation of at least $25?!?! Donations in excess of $25, as the costs for a judicial campaign are not cheap, are GREATLY appreciated!

This is your opportunity to learn about Pennsylvania and Federal Firearms Law, while having all your questions answered and supporting Jim Smith for Judge! Make sure to sign up as soon as possible, as the venue does have capacity restrictions and it will be on a first come, first serve basis. Based on prior seminars, this will sell out quickly!

 

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Perry County Sheriff Nace Does Not Require References on LTCF Applications!

Consistent with a growing number of county sheriffs, Perry County Sheriff Carl Nace is not requiring license to carry firearms (LTCF) applicants to included references on the LTCF application.

I have long contended that requiring references on the application is a violation of the confidentiality provisions of 18 Pa.C.S. 6111(g)(3.1) and (i), as merely calling the reference, even without disclosing that the applicant has applied for an LTCF, is a violation of the statutory protections, as the caller would be disclosing the “name” and “identity” of the individual, as a result of the application. This issue was addressed in our Class Action against the City of Philadelphia, which resulted in the City of Philadelphia agreeing not to require references. More recently, in November, Berks County Sheriff Eric Weaknecht also announced that he was no longer requiring LTCF applicants to submit references.

I would like to thank Sheriff Nace and Sheriff Weaknecht, both of whom are devoted to the protection of the Second Amendment, for taking this action and ensuring compliance with Pennsylvania’s confidentiality provisions.

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Much Ado About Nothing?: Montville, New Jersey’s Underage Drinking Ordinance and What’s Left of the 4th Amendment

There’s been some discussion of a new ordinance in Montville, N.J. that supposedly allows police officers to enter homes at will (or at least upon probable cause) that underage consumption of alcohol is occurring on the premises. The news reports have some truth in them, but are also not complete.

Under current state law, it is illegal for a person to provide, offer, or make alcohol available to an underage person, or to provide a place for underage persons to consume alcohol. N.J.S.A. 2C:33-17 categorizes this as a disorderly persons offense, meaning that a person can spend up to six months in jail and pay fines up to $1,000. (The underage consumer is penalized only if he or she is consuming alcohol in public). Prior to Montville’s ordinance, a police officer with probable cause that (1) a violation of state law is occurring and (2) a person is in danger or evidence will be destroyed, may enter the property without a warrant. Under Montville’s ordinance, the officer still needs to have reasonable suspicion that a violation is occurring and there must still be exigent circumstances. Thankfully, searches of homes and offices are still considered to be somewhat protected from warrantless searches, so police officers can only search your home if exigent circumstances exist (i.e. there’s a really pressing reason they can’t get a warrant). Whether the definition of “exigent circumstances” has become a bit too loose as of late can certainly be debated, but, in theory, the protections for the home remain and, at a minimum, receive homage and lip service from the courts.

While the Montville ordinance really doesn’t affect the 4th Amendment rights of its residents, it does affect their criminal liability in underage drinking incidents. The two major differences between state law and Montville’s ordinance are: (1) state law applies to the homeowner, rather than the underage drinker, on private property, while the Montivlle ordinance applies to the individual consuming the alcohol on private property, and (2) the penalties for Montville’s ordinance are far less severe than the state penalties.

Up until 2000, a police officer confronted with a report of underage drinking at a private residence had one of two options: charge the parents with a violation of N.J.S.A. 2C:33-17, or look the other way. Under New Jersey law, underage consumption of alcohol is illegal for the underage consumer when he or she consumes alcohol in public. The parents or homeowners, however, are penalized when the underage drinking occurs in a private setting. Recognizing that there was no “slap on the wrist” type of penalty for underage drinkers in a private setting, and knowing that police were at least sometimes hesitant to charge parents and homeowners with disorderly persons offenses for allowing underage drinking, the New Jersey legislature passed N.J.S.A. 40:48-1.2 in 2000, which allowed municipalities to pass ordinances dealing with underage drinking. Montville’s ordinance is a direct result of this law, mirroring its language and penalties.

Montville’s ordinance makes it a municipal offense – punishable by $250 or $350, depending on the number of prior offenses – for underage persons to consume alcohol on private property. While providing the same statewide exceptions for religious purposes or with parental permission and in the presence of the parent, the Montville ordinance provides police officers with a third option. Rather than penalize the owner of the house or walk away, the officer has the option of providing a penalty directly to the underage person consuming alcohol. The town is selling this as an alternative to the harsher state penalties: whether this will be an additional charge or an alternative charge will remain to be seen (one hopes that the officers don’t take the opportunity to charge both the individual under the ordinance and the homeowner with the state offense, although it is certainly a possibility).

Regardless of whether police officers enforce the ordinance in conjunction with the state law or not, the primary concern (if the news reports are to be believed) is the ability of police officers to enter homes without a warrant to investigate underage drinking. Nothing in the ordinance suggests that it grants new 4th Amendment-eroding powers to the police. Under Montville’s ordinance, a police officer still needs both probable cause that an underage person is consuming alcohol without parental permission and in the presence of the parent, and exigent circumstances must exist. Thus, from a 4th Amendment standpoint, nothing changed in New Jersey. Whether current 4th Amendment jurisprudence adequately protects our rights from the government, however, is a different question altogether.

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ATF Issues First Ruling of the New Year – Is It The End Of 80% Lowers?

On only the second day of 2015, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has issued it’s first ruling of the year! ATF Ruling 2015-1 addresses putative Firearm Industry concerns regarding “whether Federal Firearms Licensees (FFL), or unlicensed machine shops, may engage in the business of completing, or assisting in the completion of, the manufacture of firearm frames or receivers for unlicensed individuals without being licensed as a manufacturer of firearms.”

Before we dive into this ruling, it is important to remember that ATF has consistently stated that it is lawful for an individual to manufacture his/her/its own firearm, without need to mark it, provided that he/she/it has no intent to sell or distribute it (seemingly at the time of manufacture; however, that is now drawn into question regarding ATF’s most recent position regarding the use of forearm braces - See AR Pistol Shooter’s FB post stating “[ATF is] reversing the earlier opinion and using established case law and precedent, stating a firearm may be classified based upon its use.” and my article Whoops We (ATF) Did It Again…Arbitrary Determinations Over the Sig Brace. If ATF’s position is that it is the intent when sold or distributed, ATF has opened up a series of constitutional issues, including takings arguments, since it would be contending that upon the death of the maker, the firearm could not be transferred to the heir(s) and would have to be forfeited).  In relation to manufacturing one’s own personal firearm, in August of 2010 ATF’s  then-Firearms Technology Branch (now Firearms Technology Industry Services Branch) declared

For your information, per the provisions of the GCA, an unlicensed individual may make a ‘firearm’ as defined in the GCA for his own personal use, but not for sale or distribution.”  FTB went on to declare “Also, based on the GCA, manufacturers’ marks of identification are not required on firearms that are produced by individuals for personal use.

Hence, it is completely lawful, as acknowledged by ATF, for one to manufacture his/her/its own firearm, provided there is no intent to sell or distribute it, but what about when that individual is incapable of turning a block of metal or 80% lower into a functioning firearm?

Because of putative “inquiries from the public,” ATF decided to issue a ruling – Ruling 2015-1. The six page ruling starts off by explaining that some individuals are purchasing “castings or machined/molded or other manufactured bodies (sometimes referred to as “blanks,” or “80% receivers”) that have not yet reached a stage of manufacture in which they are classified as ‘firearm frames or receivers’ under the Gun Control Act of 1968 (GCA).” This is no surprise, as a Google search for “80% lowers” returns over 9 million results, which include both FFL and non-FFL makers of 80% lowers and businesses that sell products, such as jigs, special drill bits and designs, to complete 80% lowers. There are also videos that one can watch on Youtube that depict how to modify an 80% receiver into a fully functional firearm.

The Ruling goes on to review the background that many of these individuals are unable to complete the manufacture of the firearm, especially the fire control cavity, and are proposing that either an FFL or unlicensed machine shop should be permitted to assist them in completing the firearm, using the company’s equipment. FTISB goes on to review the statutes and regulations involved and one case, from the 4th Circuit, which somewhat supports its position.

While it is not surprising that ATF found that an FFL/gunsmith could not complete the firearm, I am somewhat skeptical of its logic in relation to non-licensed machine shops. The Ruling states

An FFL or unlicensed machine shop may also desire to make available its machinery (e.g., a computer numeric control or “CNC” machine), tools, or equipment to individuals who bring in raw materials, blanks, unfinished frames or receivers and/or other firearm parts for the purpose of creating operable firearms. Under the instruction or supervision of the FFL or unlicensed machine shop, the customers would initiate and/or manipulate the machinery, tools, or equipment to complete the frame or receiver, or entire weapon. The FFL or unlicensed machine shop would typically charge a fee for such activity, or receive some other form of compensation or benefit. This activity may occur either at a fixed premises, such as a machine shop, or a temporary location, such as a gun show or event.

A business (including an association or society) may not avoid the manufacturing license, marking, and recordkeeping requirements under the GCA simply by allowing individuals to initiate or manipulate a CNC machine, or to use machinery, tools, or equipment under its dominion or control to perform manufacturing processes on blanks, unfinished frames or receivers, or incomplete weapons. In these cases, the business controls access to, and use of, its machinery, tools, and equipment. Following manufacture, the business “distributes” a firearm when it returns or otherwise disposes a finished frame or receiver, or complete weapon to its customer. Such individuals or entities are, therefore, “engaged in the business” of manufacturing firearms even though unlicensed individuals may have assisted them in the manufacturing process.

And the Rulings holdings are

Held, any person (including any corporation or other legal entity) engaged in the business of performing machining, molding, casting, forging, printing (additive manufacturing) or other manufacturing process to create a firearm frame or receiver, or to make a frame or receiver suitable for use as part of a “weapon … which will or is designed to or may readily be converted to expel a projectile by the action of an explosive,” i.e., a “firearm,” must be licensed as a manufacturer under the GCA; identify (mark) any such firearm; and maintain required manufacturer’s records.

Held further, a business (including an association or society) may not avoid the manufacturing license, marking, and recordkeeping requirements of the GCA by allowing persons to perform manufacturing processes on blanks or incomplete firearms (including frames or receivers) using machinery, tools, or equipment under its dominion and control where that business controls access to, and use of, such machinery, tools, or equipment.

Held further, this ruling is limited to an interpretation of the requirements imposed on persons under the GCA, and does not interpret the requirements of the National Firearms Act, 26 U.S.C. 5801 et. seq.

While I can understand the rationale behind the determination where the individual is under the “instruction or supervision ” of an unlicensed machine shop, as the machine shop or its employees would seemingly be causing the machine to perform the modifications to the 80% lower, I cannot understand or see any (legal) rationale, where the non-licensed machine shop only makes available the equipment and does not provide any instruction or supervision. If the machine shop merely offers individuals the opportunity to utilize its equipment for either a set fee or hourly rate, as a number of machine shops and vocation technical schools offer, the business or school is not involved in any distribution of the firearm nor is it engaged in the business of manufacturing firearms, as the individual retains absolute possession and control in the manufacture of the firearm. The ridiculousness of this determination and logical outgrowth suggests that any manufacturer of drills, drill presses, drill bits, CNC machines, 3d printers…etc is also involved in the distribution of firearms and engaged in the business of manufacturing firearms, even though they only sold a product that the end user elected to utilize in a particular way. If the machine shop only offers its equipment for rental, and does not provide any supervision or guidance, it is no different than the manufacturer of the equipment being utilized.

So, does this end an era of 80% lowers? No, but it will cause a substantial financial impact to the firearms and related industries and particularly to those making 80% lowers. Nothing in this Ruling suggests that an individual can no longer manufacture a personal firearm without needing to mark it but the individual must be able to complete the firearm with his/her/its own tools, which causes a plethora of concerns in such process. What if the individual borrows a tool from a neighbor? What if the equipment utilized is jointly owned (such as marital property)? Can a company offer membership, whereby any member is entitled to utilize the company equipment for free, and the member complete his/her/its firearm on the company equipment since the business would not be engage in the business? Do machine shops now need to inquire of the individual as to what he/she/it is going to be utilizing the machinery for?

Clearly, there is opportunity for anyone or entity aggrieved to challenge ATF’s Ruling but will anyone from the Industry step up to the plate? With a few recent exceptions, our Industry has generally declined to push-back against ATF’s overarching determinations. Many in the Firearms Industry believe that they can make a deal with the devil and not get burnt (ATF-41p anyone?) or that if they make any waves, they’ll be in the cross hairs of the out-of-control agency known as ATF. Unfortunately, both of those positions have led us to where we are today. We take it on the chin, time after time, and allow ATF to do as it wishes. Either, we need to start pushing back (as some are now doing) or there won’t be an Industry to fight for and our Industry isn’t just an industry, its the Second Amendment. But, I digress…

Footnote 2 of the Ruling does bear noting, as it declares “For purposes of this Ruling, activities associated with tapping and mounting a scope are considered neither ‘machining’ nor a ‘manufacturing process’.” While it is putatively limited to Ruling 2015-1, it seems to be a slight distancing from Ruling 2010-10, where FTB declared, “In contrast, a dealer-gunsmith may make or acquire his/her own firearms, and repair, modify, embellish, refurbish, or install parts in or on those firearms.  If the dealer-gunsmith then sells or distributes those firearms for livelihood and profit, the dealer-gunsmith is engaged in his/her own business of manufacturing firearms.” Are Type 1 FFLs now permitted to purchase a firearm from the manufacturer, add a scope or optic, forgo marking the firearm, and permitted to sell the package for resale? While ATF has consistently said that a gunsmith may add a scope to a firearm already belonging to the customer, it has also stated that a type 1 FFL may not add a scope to a firearm that it offers for resale, unless it obtain a type 7 manufacturer’s FFL. While this may seem inconsequential, there are serious issues as very few type 1 FFLs understand this dichotomy and in the absence of any direction from the Directorate of Defense Trade Control (DDTC) on what constitutes manufacturing under the International Trafficking in Arms (ITAR) regulations, it would seem that an entity acquiring an 07 manufacturing license, even if for purposes of only mounting a scope to a rifle and offering it for resale, would also have to register under the ITAR regulations, to the tune of $2,250 a year, just to register…

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