JohnKSa said:The contention that once the need for clarification is obvious, it can't be provided doesn't make sense.
Fortunately, no one contended that. The actual explanation is found at post 176,
and at post 172…. Those other interpretations still exist as evidence of the ambiguity even where the agency decides to move on to another position.
If the agency already issued a letter asserting that your sig brace doesn't make your pistol an NFA item, there's enough ambiguity present that it shouldn't be permitted to prosecute people for having and using them, even with an intent to shoulder.
None of those mean that clarification of an ambiguous statute cannot be provided. They mean that the federal government is not entitled to construe ambiguous criminal code in its own favor.
Do you now understand that this point is about ambiguity within the statute, how a statutory ambiguity is properly resolved and the limits of executive authority?
JohnKSa said:Exactly. If this is a new law or an attempt at legislating, then it should be easy to find an example of a firearm that was legal before the first stabilizing brace was invented but that has now been rendered illegal by the rule. A counterexample to the claim that this rule is just a clarification, not an expansion.Pretending? Handwaving?
Which is exactly what I provided to you in post 176.
Under the reg, any weapon that "provides surface area that allows the weapon to be fired from the shoulder" is a rifle even if it isn't designed, made or intended to be fired from the shoulder and the agency determines the weapon is a rifle due to unspecified weight, length, length of pull, optic eye relief, functional quality of the rear attachment or manufacturer marketing. There is no scoring stem for the criteria.
And,
Understanding that, we can examine HiBC's squeaky clean AR pistol. We can find an SBR somewhere with a "consistent" weight and length, conclude that it is a rifle, and not have violated the terms of the reg. Since there is no scoring system, the undefined criteria describe a significant examiner discretion that HiBC is poorly positioned to contest where the examiner describes any consideration of any of the undefined criteria.
Where HiBC's squeaky clean pistol is now a rifle, the new rule has changed the result because it has changed the standard as describe previously.
JohnKSa said:It is not a rifle and nothing in the rule could reasonably be construed to arrive at such a determination.
Where the issue under examination is whether the agency has reasonably construed the US code, assuming that it will reasonably construe its new regulation is unwarranted.
You have not indicated any part of the new regulation, any set distance, length of pull, eye relief or marketing to which HiBC can point and proclaim “by the letter of your own regulation, this is just a pistol”. Your inability to do that is not a personal failing, but a quality of the regulation itself.
I would caution you against a casual dismissal of the regulatory language as simply a complex restatement of the statutory language. At post 153, I have explained how that is incorrect.
JohnKSa said:Read the explanation they provide with the rule. Their position is that the opinion letters were meant to apply to SPECIFIC instances of stabilizing braces provided for evaluation but were interpreted to apply to ALL braces. They are arguing that the guidance was consistent but was badly misinterpreted..
The agency is incorrect. That an opinion letter is determinative only as to the party to whom it is issued misses the value of those opinion letters to third parties. The letters disclose the interpretation of the agency. Where the inconsistency in interpretation is there for everyone to read, agency protest that was actually consistent, even though the agency now considers it invalid, is defective.
JohnKSa said:The whole deal is a ridiculous mess, starting with the passage of the NFA nearly 9 decades ago. If you are referring to me, I'm not arguing that anything is "fine….I understand that some of us think it's fine.
I am referring specifically to those who take the position that the language of the regulation is not to be interpreted literally or is just a profoundly verbose restatement of US code or that the executive is entitled to prosecute criminal defendants with regulations so vague that the agency is left to behave according to its discretion.
JohnKSa said:How can it make sense to claim that situation (which everyone agrees was rife with contradictions either in the opinions themselves or in the interpretations of them) was a reasonable point to begin working from to determine if the NFA has been expanded? It obviously doesn't.
Good thing I didn’t do that.
JohnKSa said:…just that mischaracterizing the rule and thereby creating panic (e.g. reinforcing someone's baseless belief that their AR pistol with a featureless pistol buffer tube might now qualify as an SBR) and confusion isn't helping anything.
I have been specific in my critique of the regulatory language. It is unserious to attempt to address the critique by alleging that it creates panic, is insincere, i.e. pretending, or insubstantial, i.e. handwaving. The specific critique of the regulatory language helps people to understand how it operates and relates to the US code.
JohnKSa said:An accurate analysis of the situation shows that there is actually now MORE leeway in terms of attaching things to the back of a pistol than there was before the first stabilizing brace was invented. Instead of focusing on that reality, people are trying to compare the current situation to the point where there were multiple apparently conflicting opinion letters and argue that because the current situation appears to be more restrictive, the NFA has been expanded
.
You confuse two separate observations.
The assertion as borne out by the language of the regulation itself is that the regulation purports to change a definition set forth in the NFA. Inasmuch as it explicitly sets forth and additional definition for “rifle” the change is an expansion.
The point that the agency may be limited in what it can enforce criminally in the future based on the very ambiguities it has documented is different and not a component of the observation that the regulation expands the definition of “rifle”.
Do you now understand that those are two different observations?