A Loss for ATF - Issue #35 - 2022
The subscriber-only Newsletter for the week of September 3rd, 2022.
Rest in Peace
Before the usual stuff this week, a moment to recognize the passing of James Yeager. One of the OG modern instructors/GunTube guys of the digital era, James Yeager, had a long and colorful career as a shooter and is reported to have passed away peacefully in his family's company. He had ALS.
Kat Ainsworth Stevens
3D Printing & DIY
80% Lower, 100% ATF Tears
US District Judge Reed O'Connor of the US District Court for the Northern Division of Texas ruled Friday that Tactical Machining, LLC., a manufacturer of 80% lowers, can lawfully continue to operate despite ATF's recently-enacted Final Rule on 80% lower receivers.
Judge O'Connor issued [this] ruling, which very roundly criticizes the Biden ATF's new stance on firearm parts. Some highlights:
ATF exceeds its authority
In other words, § 478.12(a) describes the full scope of frames and receivers that are consistent with the statutory scheme. ATF’s expansion in § 478.12(c), on the other hand, covers additional parts that are “designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver.” 27 C.F.R. § 478.12(c). But Congress intentionally omitted that language from the definition. Section 478.12(c) is thus facially unlawful because it describes only parts that Congress intentionally excluded from its definition of “firearm.” It is purely an expansion of authority beyond the statutory language.
Schrödinger's receiver
Rather, the issue here is whether ATF may still regulate a component as a “frame or receiver” even after ATF determines that the component in question is not a frame or receiver at the time of evaluation. Congress has not extended ATF’s authority so far. That the firearm part is “designed” to be or may one day become a frame or receiver does not change the fact that, in that moment, it is not “the frame or receiver of any such weapon.” 18 U.S.C. § 921(a)(3)(B).
Parts kits are not firearms
Plaintiffs are also likely to succeed on their claim that the Final Rule unlawfully treats weapon parts kits as firearms. The Final Rule contains its own definition of “firearm,” notwithstanding that the Gun Control Act already defines the term. Under the Final Rule, “[t]he term shall include a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive.” 27 C.F.R. § 478.11 (definition of “firearm”). That language conflicts with the statute’s definition of “firearm.”
ATF has no general authority to regulate parts
ATF has no general authority to regulate weapon parts. But the Final Rule grants ATF that general authority by copying language used throughout the statutory definition. It takes phrases like “designed to” and “may readily be converted” and “assembled” from various places in the statute, cobbling them together to form ATF’s own definition of “firearm.” Those terms may add a patina of credibility to the drafting, but they tarnish Congress’s carefully crafted definition. More importantly, they unlawfully expand ATF’s authority beyond the boundaries set by the Gun Control Act.
Tactical Machining can operate, but customers are a different story
Covered by the injunction, Tactical Machining can operate its business as it has, free from the threat of enforcement of the Final Rule’s unlawful redefinitions. Presumably, Tactical Machining’s customers are still subject to felony charges for buying its products. See 18 U.S.C. § 922(a)(3). And it may be the case that Tactical Machining’s business will fail unless the injunction is subsequently amended to cover a substantial portion of Tactical Machining’s customer base. But for now Plaintiffs offer neither evidence nor argument on that point.
My Impression
Overall, this ruling doesn't change much right now for the country as a whole. But this early criticism against ATF's Final Rule in 2021R-05F is pretty scathing. Granted, this is a judge in Texas – but assuming the legal fight over the ghost gun ruling works its way up the court system, this early injunction seems to suggest that 2021R-05F is a sloppy move by ATF that will not hold up to serious scrutiny.
10/22 Barrel Limited Offering
For a limited time, you can order a completed aluminum 10/22 proto barrel from DB Firearms. If you don't feel like the work of building one yourself, this is a good way to go. These are very light, with the rifle-length barrels weighing only 14oz. The barrels can be ordered in custom lengths and are for a standard 10/22, NOT a takedown model.
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Guns
The Prodigy
Springfield has a new release, and this time it isn't a remixed Croatian Glock clone or a laughably awkward bullpup. The 1911 DS ProdigyTM is a metal framed 9mm 1911 pistol with a 20+1 capacity. There's a government (5") and commander (4.25") length model, and the guns ship with an Agency Arms-inspired AOS optics mounting system.
Springfield is running a big national promotion for the release this weekend, and the gun has been a pretty closely guarded secret. I got the chance to check one of these out a few weeks ago but couldn't post about it without violating an NDA. It's a nice piece, and it feels good in the hand. If you're a 1911 guy, this seems like a winner. It's got the right features for a modern 1911, and it comes in about a thousand dollars below a comparable Staccato P. My early contention is that this is a rare W for Springfield, but I won't fully endorse it until I know it can hold up to the particular kind of abuse that only the general gun-buying public can dole out.
M&P®9 M2.0™ Metal
Smith & Wesson is adding metal framed pistols to their popular M&P 2.0 lineup. The new variant will feature a 7075-T6 aluminum frame covered in a tungsten grey Cerakote. The pistol still fits into standard M&P holsters, accepts M2.0 magazines, and takes standard M&P 2.0 palm swells.
The M&P lineup was due for a facelift, and the metal frame is a welcome choice. The guns are optics-ready, ship with the standard 17+1 capacity, and offer the M2.0 flat trigger and enhanced sear.
Politics
Fog Reveal
Police are using a tool called Fog Reveal to conduct digital dragnet searches and collect pattern-of-life intelligence on citizens. The program is secretive, and it's not uncommon for law enforcement to hide its use from defense attorneys at trial.
Apps like Waze, Starbucks, and many others gather a unique device ID from your phone. This information is bundled and sold by data brokers on the open market. Fog Reveal buys the data and turns it into a software suite law enforcement can use to detect specific devices, track a person's movement history, and more.
Warrants are a gray area and are not required much of the time. The data is commercially available, and phone users have agreed to the terms and conditions of their apps.
Spooks and ex-military intel officers run the company itself:
Fog Data Science LLC is headquartered in a nondescript brick building in Leesburg, Virginia. It also has related entities in New Jersey, Ohio and Texas.
It was founded in 2016 by Robert Liscouski, who led the Department of Homeland Security’s National Cyber Security Division in the George W. Bush adminstration. His colleague, Broderick, is a former U.S. Marine brigadier general who ran DHS’ tech hub, the Homeland Security Operations Center, during Hurricane Katrina in 2005.
The cost of the Fog Reveal suite is relatively cheap compared to purchasing electronic warfare devices like Stingrays. Some of the LE contracts are as cheap as the 4-figure range.
At a minimum, preventing your apps from tracking your movements or capturing personalized ad information is a good idea. Fortunately, you can read below how to disable Ad ID monitoring on your smartphone.
Read More:
GARANCE BURKE and JASON DEAREN
Bennett Cyphers
Bellingcat Outs a Spy
Here's an interesting story about how the independent publication Bellingcat which is totally not an intelligence laundering apparatus funded by NED dollars outed a Russian spy. The burned operative had to beat feet back to Russia after sloppy tradecraft outed a range of passport numbers belonging to Russian spies.
Christo Grozev
Mikhail Gorbachev
Mikhail Gorbachev, the last leader of the Soviet Union, passed away at 91 this week. Gorbachev is remembered by the West as "a man one can do business with" and by his countrymen as largely a sell-out.
During his time as head of state, Gorbachev was known for his progressive politics, withdrawal from Afghanistan, and willingness to weaken his country's military readiness to appease foreign interests. Gorbachev had the ability to offend both traditionalists – who were no fans of his progressive policies – and radicals, to whom he was not progressive enough. Ultimately, ineffective administration and political infighting meant his country would dissolve into regional territories shortly before collapsing on the world stage and losing its status as a superpower. Ahem.
Susannah Cullinane and Laura Smith-Spark, CNN
Adjacent News
The CH-47 Chinook – the workhorse helicopter of the US Army – is grounded over concerns about engine fires. It's good to take preventative maintenance and safety seriously, but it's...not good that the entire fleet is grounded for the moment.
Ethereum goes Proof-of-Stake
Ethereum will transition from a proof-of-work to a proof-of-stake model next week. In the most basic of terms, PoW is more secure, but PoS requires substantially less electricity.
There was an alarming situation with the US Treasury launching a successful attack on coin mixing service TornadoCash a few weeks ago, which raised questions about Ethereum's security. We looked at this in Issue #32. For privacy, it's not looking like Ethereum is leading the pack.
James Vincent
BUD/S Training Death
A Navy SEAL trainee died in his sleep after completing the infamous BUD/S "Hell Week." The young sailor went to sleep after the training event and never woke up. He had bacterial pneumonia and had been coughing up blood during the course, and performance-enhancing drugs were found in his vehicle.
The Navy has faced criticism in recent years as a culture of hazing, steroids, drugs, and cheating has become something of an open secret in the Teams.
(Not So) Smart
Thousands of people in Colorado this week found themselves amid a heat wave, but they could not turn down their air conditioners because the power company had locked their home's "smart" thermostat.
Giving the power company control over one's thermostat was an optional program; participants received billing credits for taking part. But many customers were unaware they'd give up so much control in their homes.
If you pay attention, you'll notice that "smart" actually means "things the government can monitor or control." Smartphones. Smart cars. Smart thermostats. Smart doorbells.
By: Jaclyn Allen
- Lee
