JohnKSa said:
It only changes the definition if there's a practical legal result.
That is incorrect. The agency concedes that it has amended the definition. See posts 112 and 153.
JohnKSa said:
If the law doesn't make something illegal/regulated then it is not illegal/regulated. Pretty basic stuff and the foundation of our legal system.
You can argue about wording and definitions until the cows come home but the bottom line is that if you (or the government) claim the pistol is an SBR, then the onus is on you (or the government) to show, using the statutes, how that is true.
me said:
That the prosecution carries the burden of proof isn't a comment on the meaning of the regulation.
That's not what I said. You implied that his pistol was an SBR because you assert that it's not possible to show that it's legal using the rule. Even if that assertion is correct, that's the wrong way to go about using the law. Things aren't legal because the law declares them to be legal, they are legal because the law doesn't make them illegal.
Emphasis added. This what you wrote.
You have drawn an incorrect inference. I did not imply that his pistol was an SBR because it is not possible to show that it is legal using the rule.
me at 176 said:
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.
This means that leaving initial determinations of compliance with the new rule to the discretion of government examiners leaves possessors and potential defendants poorly positioned to contest the result of the examiner’s discretion.
Your "bottom line" about the presumption afforded a criminal defendant isn't a comment on the structure of the rule.
Aguila Blanca said:
If the claim is that this rule expands the law, then it must be possible to come up with examples of things that are illegal under this rule that were not illegal under the NFA.
This, maybe?
The issue isn't whether it is illegal. It's whether the new rule can describe a weapon that previously was not regulated under the NFA.
The item that indisputably meets that standard that it was not an NFA regulated weapon under the NFA and now may be is a scoped pistol with the original sig brace. It was a weapon not designed, made or intended to be fired from the shoulder. No one needs to wonder whether it was “designed or intended to fire a weapon from shoulder” because the agency found that it wasn’t more than a decade ago. Accordingly, it was legal to possess.
Such a pistol would have a “surface area” that “allows” shouldering. Under the terms of the new rule, it is a matter of agency discretion whether it is a rifle, so anything within that discretion can be a rifle. Those two characteristics shunt the weapon agency evaluation.
Can anyone find a rifle of weight or length “consistent” this weapon’s length? Clearly, that is not a length or weight by which any possessor can determine whether his weapon is subject to NFA classification, because it is not a length or weight.
Can anyone find a rifle with a length of pull “consistent” with this length of pull? Since that is not a length of pull distance, finding something “consistent” will pose no obstacle to an examiner’s discretion and is not a reasonable metric by which any possessor can determine whether his weapon is subject to NFA classification.
The weapon has a scope with high relief. Since the agency provides no specific high relief that would drive NFA classification, this will be a matter of examiner discretion.
The additional surface area that allows the weapon to be fired from shoulder is created by something other than the buffer tube; the brace is not necessary for the cycle of operation.
Does the agency possess any information by which it could find that people other than the possessor are using the weapon in a manner the examiner disfavors? Does this change over time so that a possessor might think in March that he possesses a weapon not subject to the NFA, but in June he possesses an untaxed short barrel rifle?
Significantly, any single one of these exercises of agency discretion can be the basis of an agency determination under the new rule. For instance, if the weapon has a scope, that alone can classify it as a rifle under the regulation, but not the NFA.
A good comeback. I like it. 