ATF and pistol braces ?

[44 AMP]

The problem may be easier to understand by analogy to speed limit signs.

Along with the ridiculous that you included, you left something out of your analogy.

You CAN get a ticket, at ANY speed, if the issuing officer believes your speed is excessive for existing conditions. And, if contested and the judge agrees with the issuing officer you ARE paying the fine (and, perhaps court costs).

So, if you've got something you call a brace, and the maker calls it a brace, but the ATF says its a stock, and stock rules apply, then you go to court. The judge (and jury if its a jury trial) listen to your arguments, your cites, and all the evidence you present, and then rule its a duck, because to them, it looks like a duck and it acts like a duck, so it IS a duck, and your arguments aren't all they're quacked up to be.

 

[JohnKSa]

That is incorrect. The agency concedes that it has amended the definition. See posts 112 and 153.

Whatever they say, if there's no practical legal result then the definition hasn't changed. Any basis for a challenge would depend on some kind of standing--if there's no practical change in legality then no one has been damaged, no one has standing and, clearly, the "amended definition" didn't change the law, it only clarified/amplified it.

I did not imply that his pistol was an SBR because it is not possible to show that it is legal using the rule.

If you don't believe his pistol is an SBR, then we agree that it is not. If you believe it is, then you would need to use the law to show how it fits the definition of an SBR.

Your "bottom line" about the presumption afforded a criminal defendant isn't a comment on the structure of the rule.

The law has to be used for something or it serves no purpose. If the government can't demonstrate that an action is illegal or an item is regulated/illegal then they can't move forward. That is the bottom line. They have to demonstrate how the pistol would fit the definition of SBR or it is not an SBR and isn't regulated as an SBR.

...leaves possessors and potential defendants poorly positioned to contest the result of the examiner’s discretion.

No more than with any other law. If the government claims that the pistol is an SBR because of X, Y, and Z, all the defendant need do is point out that X, Y, or Z does not apply to the pistol, or that X, Y, or Z is not a reasonable criteria for identifying an SBR.

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.

This is where it gets humorous. You have attacked the validity/consistency/ambiguity of the opinions everywhich way possible but will use them to bolster your argument when it suits your purpose. Furthermore, the letters and the opinions in them have been invalidated so using them as a basis for argument is, at best, seriously problematic.

Besides, UNLESS those opinion letters changed the law, something you say the BATF is not allowed to do, then the NFA still applies and should be the only basis for evaluating the current rule. You can't argue that the rule expands the law compared to the now invalidated opinion letters because they have been invalidated and, more to the point, they were never law to begin with.

The problem may be easier to understand by analogy to speed limit signs.

Very good.

You CAN get a ticket, at ANY speed, if the issuing officer believes your speed is excessive for existing conditions.

Exactly correct. So is that law problematic because it depends on a confluence of circumstances rather than on a clearly delimited boundary? Of course not. Nor does it eliminate the ability to challenge/defend against such an accusation.

For instance, if the weapon has a scope, that alone can classify it as a rifle under the regulation, but not the NFA.

Absolutely incorrect. This kind of blatant mischaracterization of the law while you are in the midst of an argument that focuses heavily on semantics and specific wording makes me wonder about your motives.

Before any weapon can be classified as a rifle under the rule, it must have:

"...an accessory, component, or other rearward attachment (e.g., a “stabilizing brace”) that provides surface area that allows the weapon to be fired from the shoulder..."

That's only the first step. Then it must have "other factors" as well.

One of those factors is a "scope with eye relief that require the weapon to be fired from the shoulder in order to be used as designed..."

So not just "a scope" "alone". Not even an accessory, component or other rearward attachment providing shouldering capability plus a scope. The scope must be one that is can only be used (due to eye relief limitations) if the gun is shouldered.

The two factors, a scope that is intended to be used when the gun is fired from the shoulder, plus provisions for shouldering the gun would certainly indicate that the firearm fits the definition of rifle under the NFA since the resulting firearm would certainly be "designed or redesigned, made or remade, and intended to be fired from the shoulder”.

 

[JohnKSa]

The agency concedes that it has amended the definition. See posts 112 and 153.

Ok, you keep saying this. There is a significant difference between federal law and the CFR. One is generated/amended by congress, one is maintained/generated/amended by various federal agencies.

This is why I keep saying that there is no legal change in definition (no change to the law) as long as the rule (regulatory material under the CFR) does not step outside the boundaries provided by the NFA (federal law).

If you read the rule, you (or anyone) will see that it is very careful to point out that the changes are made to the regulations, to the CFR. The BATF is not only allowed to change those regulations, they are responsible to do so when it they feel it to be necessary. Changes to those regulations are NOT changes to the law, although they do have to be consistent with the law.

Yes, they amended the regulatory definitions in the CFR. That is not a problem unless the rule goes beyond the boundaries of the NFA. That's why it's so important to judge the rule based on the NFA--that's the only standard that it needs to meet.

 

[zukiphile]

Along with the ridiculous that you included, you left something out of your analogy.

You CAN get a ticket, at ANY speed, if the issuing officer believes your speed is excessive for existing conditions. And, if contested and the judge agrees with the issuing officer you ARE paying the fine (and, perhaps court costs).

All of that is true, but since the analogy isn't presented for the purpose of setting forth how traffic tickets are adjudicated, a different infraction, i.e. excessive speed for conditions, isn't a part of the analogy. The analogy is explicitly about the effect of changing a definition with matters that reflect broad discretion.

 

[zeke]

Ok, you keep saying this. There is a significant difference between federal law and the CFR. One is generated/amended by congress, one is maintained/generated/amended by various federal agencies.

This is why I keep saying that there is no legal change in definition (no change to the law) as long as the rule (regulatory material under the CFR) does not step outside the boundaries provided by the NFA (federal law).

If you read the rule, you (or anyone) will see that it is very careful to point out that the changes are made to the regulations, to the CFR. The BATF is not only allowed to change those regulations, they are responsible to do so when it they feel it to be necessary. Changes to those regulations are NOT changes to the law, although they do have to be consistent with the law.

Yes, they amended the regulatory definitions in the CFR. That is not a problem unless the rule goes beyond the boundaries of the NFA. That's why it's so important to judge the rule based on the NFA--that's the only standard that it needs to meet.

I guess the question is then what is the current legal ATF definition of rifle vs the current NFA definition of rifle. If they are currently the same/similiar, and if the ATF's final rule changes the definition of rifle they use in the rule, they have stepped outside the boundaries of the NFA by changing the definition of rifle. They also are not consistent with the NFA, if using differing definitions.

Am more familiar with the changing of my states statutes, codes and guidances. As our DOJ specifically and repeatedly informed me directly, changing the definition used in a law, changes the law. And as our elected representatives repeatedly informed us, we needed their approval to do so.

 

[zukiphile]

That is incorrect. The agency concedes that it has amended the definition. See posts 112 and 153.

Whatever they say, if there's no practical legal result then the definition hasn't changed. Any basis for a challenge would depend on some kind of standing-...

Standing is a separate issue. If you concede that the definition has been amended, raising standing doesn't alter the fact of amendment.

Is that what you meant by "handwaving?

I did not imply that his pistol was an SBR because it is not possible to show that it is legal using the rule.

If you don't believe his pistol is an SBR, then we agree that it is not. If you believe it is, then you would need to use the law to show how it fits the definition of an SBR.

Having demonstrated that you didn't understand the point about the vagueness of the considerations, you would be better served by re-reading the observation you misconstrued, not telling people what you think they need to do.

Your "bottom line" about the presumption afforded a criminal defendant isn't a comment on the structure of the rule.

The law has to be used for something or it serves no purpose. If the government can't demonstrate that an action is illegal or an item is regulated/illegal then they can't move forward. That is the bottom line. They have to demonstrate how the pistol would fit the definition of SBR or it is not an SBR and isn't regulated as an SBR.

Your sense of what a bottom line may be isn't a comment on the rule.

...leaves possessors and potential defendants poorly positioned to contest the result of the examiner’s discretion.

No more than with any other law. If the government claims that the pistol is an SBR because of X, Y, and Z, all the defendant need do is point out that X, Y, or Z does not apply to the pistol, or that X, Y, or Z is not a reasonable criteria for identifying an SBR.

Your detailed grasp of prosecution for a federal felony could use some work.

This is where it gets humorous. You have attacked the validity/consistency/ambiguity of the opinions everywhich way possible but will use them to bolster your argument when it suits your purpose. Furthermore, the letters and the opinions in them have been invalidated so using them as a basis for argument is, at best, seriously problematic.

Your understanding of discussion of problems with the rule leaves you conceiving of it as an "attack" and conclude that past agency conduct is excluded from an analysis of agency conduct as a consequence of an agency assertion?

That's a very modest level of scrutiny you've afforded the reg.

Besides, UNLESS those opinion letters changed the law, something you say the BATF is not allowed to do, then the NFA still applies and should be the only basis for evaluating the current rule. You can't argue that the rule expands the law compared to the now invalidated opinion letters because they have been invalidated and, more to the point, they were never law to begin with.

Here you elide what an agency has done and should be allowed to do and misstate the explanation.

For instance, if the weapon has a scope, that alone can classify it as a rifle under the regulation, but not the NFA.

Absolutely incorrect. This kind of blatant mischaracterization of the law while you are in the midst of an argument that focuses heavily on semantics and specific wording makes me wonder about your motives.

Wondering about my motives in response to a point you've misunderstood is consistent with your limits as demonstrated in this thread.

Before any weapon can be classified as a rifle under the rule, it must have:

"...an accessory, component, or other rearward attachment (e.g., a “stabilizing brace”) that provides surface area that allows the weapon to be fired from the shoulder..."

Since an AR pistol with the sig brace has just such a rearward attachment, it clears that leg of the test.

One of those factors is a "scope with eye relief that require the weapon to be fired from the shoulder in order to be used as designed..."

So not just "a scope" "alone". Not even an accessory, component or other rearward attachment providing shouldering capability plus a scope. The scope must be one that is can only be used (due to eye relief limitations) if the gun is shouldered.

Yes, the scope alone amongst the considerations listed for a weapon brought within the regulatory definition of "rifle". It does not need to only be used if the weapon is shouldered. I walked you through the regulatory analysis of the item.

 

[zukiphile]

The agency concedes that it has amended the definition. See posts 112 and 153.

Ok, you keep saying this.

I do that for two reasons:
1. It's true, and
2. it appears necessary

Of course, I didn't rely on the agency admission on this point but have explained how it differs from the NFA.

If you read the rule, you (or anyone) will see that it is very careful to point out that the changes are made to the regulations, to the CFR.

You might be able to tell that I read the rule at post 160.

The discussion in this thread has been about the change of a regulatory definition. The assertion is not that the rule chances the text of the NFA. See posts 122, 139, 141, 147, 153 and 181 as well.

Don't mistake the difference between passed legislation and promulgated regulation as a difference between what is binding and what isn't.

That why the regulation is a benign FAQ section. See Cargill v. Garland on that point.

Changes to those regulations are NOT changes to the law, although they do have to be consistent with the law.

Yes, they amended the regulatory definitions in the CFR. That is not a problem unless the rule goes beyond the boundaries of the NFA. That's why it's so important to judge the rule based on the NFA--that's the only standard that it needs to meet.

You were doing well right up to the last sentence. There is considerably more at play than you will gather from agency literature.

 

[JohnKSa]

Standing is a separate issue. If you concede that the definition has been amended, raising standing doesn't alter the fact of amendment.

Regulations have a purpose. If they can not be used for that purpose they are meaningless.

Enforcement/prosecution is the purpose of regulations. More to the point, if they are to be challenged, there must be some basis for doing so. If there's no way to show how the regulations harmed someone (things that are illegal that should not be illegal per federal law) then there's no basis for challenging them, practically or theoretically.

I'm not ignoring your post 226, it's basically a long string of "Is too!" and "I know more than you." comments--there is no point in responding to any of them. If you want to address the substance of my comments that you quoted in the post, I'll respond to that.

They also are not consistent with the NFA, if using differing definitions.

The point of regulations/rules (the content of the CFR) is to amplify/clarify/explain.

This is a perfect example. When the NFA was created, there were no stabilizing braces. When they were invented, the obvious question was whether they were legal or not. The initial attempts by the BATF (the proper entity to answer such a question) to provide guidance failed. The BATF has one story for why they failed, the gun community has their own. Both have some merit, both have some problems. Regardless, everyone agreed that the question was not answered.

Now it has been answered.

I didn't rely on the agency admission on this point but have explained how it differs from the NFA.

Of COURSE it differs from the NFA. It would be pointless to have them be identical.

The issue is, as I have said repeatedly what the practical legal difference is between the rule and the NFA. The BATF has the authority to create/expand/modify definitions in the parts of the CFR that are their purview to explain/clarify applicable federal law. As long as the result doesn't overstep the federal law that they are based on, there is no problem.

The test isn't whether they are different, the test is whether the CFR is consistent with the applicable sections of federal law.

If one can find things that aren't illegal under the NFA that are illegal per the CFR, then the CFR could be challenged and needs to be amended. If not, then the rule is ok and should stand up to challenges.

The discussion in this thread has been about the change of a regulatory definition.

1. I think if you will go back and look, you will see that I have repeatedly brought up the point that the comparison needs to be between the NFA and the rule, not between the rule and previous rulings.

2. Changes in the regulatory definition are moot unless they overstep the bounds of the federal law they are based on. The whole point of having the CFR is so that it can be changed when necessary without having to amend federal law.

There is considerably more at play than you will gather from agency literature.

I didn't make the statement based on what I gathered from agency literature. It's based on the purpose and nature of the CFR.

 

[zukiphile]

I'm not ignoring your post 226, it's basically a long string of "Is too!" and "I know more than you." comments--there is no point in responding to any of them. If you want to address the substance of my comments that you quoted in the post, I'll respond to that.

John, you aren't obligated to respond to any post. If you aren't up to addressing the corrections and explanations, don't.

Your comments on motive, the sincerity of commentary, allegations of lack of substance about observations it turns out you aren't grasping, seeming resistance to understanding the role of ambiguity and how that may restrict what the agency can enforce, and avoidance of examination of the text of the rule speak to an incuriosity about the rule itself. If all you can gleen from post 226, a post that corrects some of the sloppier parts of your analysis and clarifies the binding quality of federal regulation, is that it is insubstantial to address the errors you offer, then I am content to let people reading this thread determine for themselves the value of your analysis.


I will pay you a compliment about this discussion; at no point have you deleted my posts as a response to disagreement. Well done.

 

[44 AMP]

I suggest that the purpose and nature of the CFR and the NFA law is irrelevant to us as ordinary folks. If you are planning a lawsuit, and exploring arguments for such, fine, but that's hardly the point of this forum. The point is what the laws and other rules ARE, and how we help our members comply with them.

How they came to be, and nuances of legal language are interesting background, once mentioned, I don't see the applicability to the real world we have to live in.

Whether or not you agree with the accuracy of the definitions, how they are or are not amended, and whether or not they change the law simply DOES NOT MATTER. What matters is that, until/unless reversed or overturned by some portion of the govt with the authority to do so they ARE the rules we have to work with, and under.

The arguments have been made, reasoned and best of all, civil, which is what we strive for in this forum. The problem is, they don't apply to people who have guns that might be reclassified as NFA items, what they need is rational, reasoned direction and accurate information, not arguments over the nuances of legal language, UNLESS such nuances apply to their specific situations.

marshal your arguments, and submit them to those people who are preparing legal challenges for their perusal and review. You might have something they can use. The constant back and forth over what is essentially legal minutiae of language is not productive and frankly I think is wasting bandwidth and losing readers interest.

With respect, please focus on where we are, and where we are going, not on whether or not we got here the "right" way. That is a topic for a different discussion.

 

[Sharkbite]

Does anyone know if the rule has been posted in the federal registry?

 

[zeke]

Does anyone know if the rule has been posted in the federal registry?

https://www.federalregister.gov/agencies/alcohol-tobacco-firearms-and-explosives-bureau

Not according to the site i have been watching. Would certainly want to have a clue before sending a firearm to atf for determination if it needed stamped or not. Have heard that ATF was accepting applications before the rule was even published, and it's been over a week since the rule was signed.

Am beginning to wonder if they are running into any difficulties.

 

[zukiphile]

The arguments have been made, reasoned and best of all, civil, which is what we strive for in this forum. The problem is, they don't apply to people who have guns that might be reclassified as NFA items, what they need is rational, reasoned direction and accurate information, not arguments over the nuances of legal language, UNLESS such nuances apply to their specific situations.

The text of the rule isn't really a nuance; it's what the change is.

The text applies to potential NFA weapon possessors in that the reg sets forth an extremely broad agency discretion. There is practical importance to recognizing the breadth of that discretion if one is considering submitting an untaxed potential SBR for licensing because there are features of that process that may expose one to prosecution.

Toward the goal of offering accurate information, I would caution against expressions that the answers are obvious, contrary opinions are "blatant mischaracterizations of the law" and dismissing discussion of legal doctrine that can influence enforcement as semantics. None of that supports accuracy.

I suggest that the purpose and nature of the CFR and the NFA law is irrelevant to us as ordinary folks. If you are planning a lawsuit, and exploring arguments for such, fine, but that's hardly the point of this forum. The point is what the laws and other rules ARE, and how we help our members comply with them.

With genuine regard for you, I'd note that the purpose of this subforum as clarified just a few years ago for staff who thought issues beyond the 2d Am. should have threads closed is considerably more broad. The purpose is "to be able to discuss the broader implications of all civil rights, and the laws that affect those rights."

If anyone is looking for legal guidance, I would encourage him to get it from an attorney, ideally his own. Even taking legal advice from an attorney in a seminar or article format poses dangers of misunderstanding about what the attorney says and what the client needs.

My hope for this format is to raise issues so that people are aware of the problems and can seek advice as they see fit.

 

[JohnKSa]

If you aren't up to addressing the corrections and explanations, don't.

Seriously, I'll be happy to address any issues of substance you raise. I just don't see any point in responding to comments like:

"Your detailed grasp of prosecution for a federal felony could use some work."
and
"Your sense of what a bottom line may be isn't a comment on the rule."

If you disagree with something I say, you can explain why and provide your own view, but just saying something like 'You're wrong and you don't understand.' doesn't advance the discussion nor does it provide any reasonable way to respond other than to say something like: "Am not!" or "Uh Uh!"

I would caution against expressions that the answers are obvious...

I think that the key is so far no no one has been able to produce an example of something that is illegal under the rule that would have been legal under the general interpretation of the NFA. That doesn't mean that there isn't such a counterexample, but the difficulty of finding it is comforting.

That means that one can continue to think about this situation just as they would have prior to the entire stabilizing brace fiasco. Don't put a shoulder stock on your pistol unless you want to register it. Not even if you call it something other than a shoulder stock. Not even if you can prove that in addition to acting as a shoulder stock it has some other function as well. Especially not if you add other features to your pistol that make it obvious you intend to use it by shouldering it.

As to the amnesty, the point has been made that anyone can be prosecuted for anything just as anyone can be sued for anything. The possibility doesn't speak to the likelihood, and it certainly doesn't speak to the issue of how successful that kind of a thing would be. I'm not going to say there's no risk at all to taking advantage of the amnesty--there's obviously risk in anything we do. But it seems that if a person takes the time to go through the rule and make sure they meet the requirements to be covered by the amnesty then the risk is quite small.

Whatever one may say about the rule, it is quite thorough. I know a lot of people are very unhappy about the rule and have, as a result, read through the rule trying to find things wrong with it. Not surprisingly, that kind of "analysis" has led to confusion, but an open-minded read is a different story. If one wants to know how to remain in compliance, it provides a lot of insight into how the BATF intends to enforce the NFA. More than enough to make compliance straightforward.

If anyone is looking for legal guidance, I would encourage him to get it from an attorney, ideally his own. Even taking legal advice from an attorney in a seminar or article format poses dangers of misunderstanding about what the attorney says and what the client needs.

Good advice. There's a lot at stake, and no one can be an expert at everything.

 

[P Flados]

Constructive possession has been discussed in a number of posts, but lets consider it in more detail.

The AFT has a track record for SBRs that includes some amount of common sense but some amount of "watch out". The Thompson Center Contender tripped them up for a while, but ended mostly OK (I think). This is my take on where I stand. I can own Contender rifles and I can own Contender pistols. I can own spare parts for either. As long as I do not install a <16" barrel on the frame with the rifle stock attached I have not created a SBR configuration.

The one tricky thing is that I should not be in possession of a component that I can only use "wrongly". If I have rifle stock and a pistol barrel, I must also have a rifle barrel (for the rifle stock) and I must have a pistol grip (for the pistol barrel).

As long as I have the only the right combination of parts, it is left up to me to not assemble them improperly.

The same is true to some extent in AR land even without any braces around. I can have both pistols and rifles and I can have spare parts. If I have a pistol upper, I need to be able to put it on a lower with a bare buffer tube (I think this needs to be either a pistol only tube or a tube that came with a brace). However if I have a pistol upper and a rifle stock, I also need to have at least one rifle upper.

Lets say I have a pistol length AR and I remove the brace from the buffer to maintain a pistol configuration. If I keep it around and ready to install, I am asking for trouble. Just like having a contender rifle stock and contender pistol barrels with no contender rifle barrel or no contender pistol grip.

Now I see three ways to keep an item sold as a brace and now considered a stock. If I take my braced lower and put a 16" upper on it, I have specifically complied with an ATF recommended action in the brace rule. If I keep my braced gun and do the Form 1, I am also ok. The last option is kind of weird but it should be ok to keep the brace as just a "part" and get rid of all barrels less than 16".

 

[Aguila Blanca]

I think that the key is so far no no one has been able to produce an example of something that is illegal under the rule that would have been legal under the general interpretation of the NFA. That doesn't mean that there isn't such a counterexample, but the difficulty of finding it is comforting.

John, I posted a link to a Stag Arms AR-15 "Other" that has been sold -- apparently legally -- as an "Other" for quite some time. Stag arms has multiple configurations in their "Other" line. And I'm fairly certain that those are squarely in the crosshairs of the new regulations, because Stag Arms has already sued the BATFE over the new rule.

 

[Aguila Blanca]

The same is true to some extent in AR land even without any braces around. I can have both pistols and rifles and I can have spare parts. If I have a pistol upper, I need to be able to put it on a lower with a bare buffer tube (I think this needs to be either a pistol only tube or a tube that came with a brace). However if I have a pistol upper and a rifle stock, I also need to have at least one rifle upper.

I would say that if you have a pistol upper and a rifle stock, in addition to at least one rifle upper you also need at least one pistol lower.

You can make a pistol into a rifle, but you can't make a rifle into a pistol. If all you have is a rifle lower but you have both rifle and pistol uppers, you are in "constructive possession" of the parts to make the rifle lower into a short-barreled rifle.

 

[JohnKSa]

John, I posted a link to a Stag Arms AR-15 "Other" that has been sold -- apparently legally -- as an "Other" for quite some time. Stag arms has multiple configurations in their "Other" line. And I'm fairly certain that those are squarely in the crosshairs of the new regulations, because Stag Arms has already sued the BATFE over the new rule.

I addressed this aready in post 215.

"Just looking at the picture and evaluating it based purely on the NFA--as if the now-invalidated opinion letters and the universally deplored situation that resulted had never happened--it has a collapsible stock (albeit one with some unusual features), a vertical foregrip and a barrel under 16", a combination of features which would make it an NFA regulated item. "

That item was legal under the invalidated letters, not under a conventional interpretation of the NFA. Under the NFA, prior to the whole stabilizing brace fiasco and the confusion that it produced, that firearm would have universally been considered an NFA regulated firearm.

 

[stagpanther]

i think the "pistol first" rule was made the same day a massive amount of pot in ATF custody went missing.

 

[zukiphile]

Seriously, I'll be happy to address any issues of substance you raise. I just don't see any point in responding to comments like:

"Your detailed grasp of prosecution for a federal felony could use some work."
and
"Your sense of what a bottom line may be isn't a comment on the rule."

I am not asking you to address any of the substance in 226 or any other post.

This will be the second time you've responded to post 226 without addressing it in any substantial way. Your "bottom line" isn't about the rule as unpacked.

I think that the key is so far no no one has been able to produce an example of something that is illegal under the rule that would have been legal under the general interpretation of the NFA. That doesn't mean that there isn't such a counterexample, but the difficulty of finding it is comforting.

That you reformulated your prior standard from

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.

...may indicate your recognition of the problem with your question, which does not present the issue correctly either time.

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. That's what the reg is about.

We know the original Sig brace on an AR pistol wasn't regulated under the NFA because the ATF so determined exactly that. You don't dispute that.

The weapon described checked every box of the regulatory definition that would permit an examiner to exercise discretion to apply the reg to find that it is an SBR. That's part of the problem with the new rule. You have presented no part of the new rule that would invalidate that reading. (Criminal presumption of innocence is present in a criminal trial, but is not itself an element constraining an examiner in reaching an agency determination, so using it to attempt to shift analysis away from what the definition in the new rule includes is not a reading of the new rule.)

Significantly, you dispute none of the regulatory language employed in that analysis, the fact of examiner discretion available under the "considerations", or that they can be applied as stated.

Instead, you substitute your discretion for what the reg permits an examiner to conclude even though your discretion isn't a limitation on the new rule.

The two factors, a scope that is intended to be used when the gun is fired from the shoulder, plus provisions for shouldering the gun would certainly indicate that the firearm fits the definition of rifle under the NFA since the resulting firearm would certainly be "designed or redesigned, made or remade, and intended to be fired from the shoulder”.

That cannot be certain where the ATF had previously found to the contrary.

I repeat for clarity: The issue presented by the new rule is not your discretion, but what it permits an examiner to conclude.

Few will find that "comforting".