[Well Regulated] Polymer80 is just the beginning

**The hiatus is over, and Well Regulated will be returning to its regular schedule of being published every Monday.**

Something is afoot that has likely been in the works for a long time. Let’s wind back the clock to mid-June when Congressman Gaetz claimed that there was a secret plan within the ATF to reclassify pistol braces as stocks. Some people panicked. Some dismissed it as a politician chasing clout. Most simply took in the information and waited to see what would come of it. In October, it was revealed that the ATF had issued a cease and desist letter to Q regarding the proprietary brace featured on the Q Honey Badger pistol. The reaction to this letter was much the same as that to the Gaetz statement, albeit with a bit more seriousness as this time the ATF had actually taken action. Less than three weeks ago, Ammoland’s John Crump published an article on how documents procured through a FOIA request indicated an effort within the ATF to attack SB Tactical over those braces which had not been submitted for formal review, but still were advertised as using “ATF approved” technology (two rubber flaps fastened with a velcro strap). Due to the letter’s age, most of the concern in the gun community dissipated fairly quickly, but some anxiety still remained. 

Last Thursday, the ATF raided Polymer80’s headquarters in Nevada, seizing evidence and records, alleging that the company’s “buy, build, shoot” kits were technically firearms. According to the complaint filed against Polymer80 by the District of Columbia alleges that although they may not be firearms under the federal definition, the AR-style lowers and Glock-style frames were firearms in DC. This raid was followed by more visits by the ATF to retailers who sold these kits demanding customer information, and as reported by The Firearms Blog, the agency has even begun visiting those who purchased the kits, threatening that they would conduct a search with a warrant if the kit was not surrendered immediately.

The questions on everyone’s mind are “Why is this happening?” and “Why is it happening now?” There are two important legal concepts to layout in order to begin answering the first question: constructive possession and Chevron deference. 

In the simplest terms, constructive possession (in the context of firearms) is the concept that if you possess everything necessary to make a functioning firearm, then legally that constitutes possession of a firearm. There are limits to this concept, for example, if you possess yeast, sugar, water, and sealable containers, you could manufacture alcohol and sell it to minors, but the possession of these items alone would not be sufficient to issue an arrest. As it relates to gun owners, this is most important in the context of parts kits and unassembled firearms, especially when combined with the legal definition of a firearm. A parts kit alone is not a firearm, but a parts kit with a stripped receiver is a firearm. Remember that the “firearm” is the receiver/frame of the weapon (or one of the receivers, such as the lower receiver for AR-style firearms which have an upper and lower). Another key to understanding constructive possession of firearms is the degree to which any number of parts is “readily converted” to a working weapon. For example, if you purchased a complete parts kit for a Sten MKII submachine gun with a demilled receiver, that would not be considered to be purchasing an illegal machine gun, because it would take considerable effort to convert the receiver back into a functioning firearm. Obviously, the topic is far more complicated than can be summarised here, but the above should serve as a sufficient summary for the purposes of this article.

Chevron deference is less complicated to give a simplified explanation. Essentially, government agencies are allowed to define vague or unclear portions of the law. They are then able to enact and enforce the regulations which result from these definitions. Ideally, such extreme power would be used sparingly to help clarify those items or situations that it would be difficult or impossible for the legislature to predict, but which still fall within the purview of a given law. Unfortunately, this is not the case, and power-hungry agencies like the ATF have used Chevron deference to the point where they are effectively writing legislation (for example, the bump stock ban). Furthermore, because of the structure of the ATF, technical distinctions such as that between a rifle and a pistol are defined by “letters” issued by agents, leaving any firearm, firearm configuration, or firearm accessory in a perpetual state of legal limbo where their legality can change spontaneously and without notice.

Now that the basic structure of how this situation came to be has been explained, the only question is “Why now?”. Although theories abound, there is no definitive answer. Many have speculated that it has to do with Obama-era holdovers within the ATF or the presidential election signaling to the agency that in just over a month Biden will give them free rein to do whatever they want. While the exact timing is likely due to numerous factors, many of which we don’t even know about, the simplest explanation is that it had to happen eventually. There are very few things that governments dislike more than looking stupid and looking weak. Items which allow citizens to achieve functionally identical ends through alternative means demonstrate just how much power the government has in practice and not just through perception. Coincidentally, less than a month ago, a documentary was released by Popular Front featuring the founder of Deterrence Dispensed, an organization specializing in homemade firearms. At the time of writing, the documentary has over 600,000 views, and while many if not most of those are from people already familiar with homemade guns, it served to illustrate the point that if there is a will there is a way. That is something that any government seeking to exercise control over the people fears: that if the people have the will, they will find the way.