ATF and pistol braces ?

[JohnKSa]

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

1. He says in reference to a post that does not contain substance.
2. He says as he once again calls attention to a post I didn't address to his satisfaction.

It's whether the new rule can describe a weapon that previously was not regulated under the NFA.

The point of rules is that they can deal with new situations without having to amend legislation. So, of course it can deal with a new situation and of course that's not a problem--as long as it doesn't increase the boundaries of the NFA.

And yes, of course it is whether the rule creates illegal/regulated firearms that were legal/unregulated under the NFA . If the rule doesn't expand the NFA then it's not a problem.

The idea that expanding a law can be done without having any effect on legality/regulation is nonsensical.

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 original SIG brace on a pistol still isn't regulated under the NFA unless other factors indicating that the resulting firearm is intended to be shouldered are present. Which is perfectly consistent with the NFA from both sides, both in allowing the original SIG brace on a pistol with no rifle features and in regulating the resulting firearm if the combination of the brace and other factors indicate that it is "a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder" and therefore consistent with the NFA definition of a rifle.

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

Nothing is 100% certain, if certainty is the standard, then it's impossible to attain. I'm willing to concede that my statement only meets the standard of being true "beyond a reasonable doubt".

 

[Aguila Blanca]

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.

You are viewing this through the narrow lens of your understanding of the law and the new rule. From that perspective, you say all those Stag Arms "Others" were never legal, so nothing has changed.

The problem is that, at the time all those firearms were purchased, the BATFE said they were legal, the manufacturer thought they were legal, the FFLs who did the transfers thought they were legal, and the people who bought them thought they were legal. Now the new rule "clarifies" the law (by expanding on the definition of "rifle" that appears in not one but TWO federal statutes) such that those same firearms are now NOT legal -- unless they can be registered as SBRs under the NFA within 120 days.

Technicalities aside, I don't think you'll convince many of the people who own those things that this isn't a change in the law.

 

[44 AMP]

Now the new rule "clarifies" the law (by expanding on the definition of "rifle" that appears in not one but TWO federal statutes) such that those same firearms are now NOT legal --

I see two assumptions here, neither of which is yet proven.

First, that the new rule "expands" and modifies the law. Either it does, or it doesn't, and I don't see where it does from my reading of it. There are cogent seeming arguments both ways, so we probably won't know until a court rules on it, one way, or the other.

Second, I don't see anywhere that the ATF is saying that affected firearms are illegal. They clearly avoid saying that. They say they MIGHT BE illegal and invite owners to submit them for evaluation under the new rules.

SO, while it is likely those guns will be ruled as NFA items, they aren't, until the ATF rules on them, each one, individually, or puts out guidance stating every gun equipped with "x" that they did rule on is in the same classification.

So, if your gun has a brace from bob's brace inc., and the ATF rules it a stock and therefore an SBR, they can state every identical gun with bob's brace is an SBR, but if they examine a gun with a brace from Joe's Brace Inc and rule it just a brace, then guns with Joe's brace are just pistols with a brace and not an SBR or NFA item.

That's how I see it, at this time. If I'm in error, do explain it to me, please.

 

[JohnKSa]

You are viewing this through the narrow lens of your understanding of the law...

You can stop right there, because that's all that needs to be said. You are correct. I'm doing that because the law is the basis on which the ruling will be judged. It will not be judged on the basis of what might have been allowed for a time under two, now invalidated rulings.

The problem is that, at the time all those firearms were purchased, the BATFE said they were legal...

And now they've invalidated those rulings so what they said means nothing. Furthermore, it's moot anyway because rulings are not judged on the basis of other rulings, they are judged on the law on which they are based.

As far as the damage done by the confusion generated by the invalidated rulings--that's why there's an amnesty. Where things that are illegal can be made legal. If there weren't things that are currently illegal out there, it would make no sense to have an amnesty--which is a HUGE hint that it's not possible to make headway on judging this ruling on the basis of past rulings. The existence of the amnesty strongly implies that people made incorrect assessments of legality on items that were not actually legal and the BATF is saying that they played a part in that and therefore are going to allow people to register them even though they didn't file the paperwork before creating the items. Not only register them, but without having to pay the tax.

Technicalities aside, I don't think you'll convince many of the people who own those things that this isn't a change in the law.

You can call them technicalities as long as you understand that these technicalities could potentially send someone to federal prison if they dismiss them.

As far as there being a change in the law, it's not a matter of convincing people--there clearly hasn't been a change in federal law. There has been a change in the CFR, but that change is, according to the enforcement agency (which is not only allowed, but responsible for changing the applicable portions pf the CFR when necessary), to correct confusion created by previous, now invalidated rulings. Rulings which caused people to get into a situation where an amnesty was required to extricate them from their legal jeopardy.

Second, I don't see anywhere that the ATF is saying that affected firearms are illegal.

The existence of the amnesty strongly implies that at least some of them are illegal.

...if they examine a gun with a brace from Joe's Brace Inc and rule it just a brace, then guns with Joe's brace are just pistols with a brace and not an SBR or NFA item.

It's important to note that one can end up with "a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder" even if one puts a legal brace on it. That's if there are other factors that indicate the weapon is intended to be fired from the shoulder.

 

[44 AMP]

It's important to note that one can end up with "a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder" even if one puts a legal brace on it. That's if there are other factors that indicate the weapon is intended to be fired from the shoulder.

Agreed. And the new rule has a list of factors they will be looking at. What we do not have is any indication HOW those factors will be used or judged, which ones are going to be "fixed" and which ones are going to be subjectively judged.

Sights that are useable only when the weapon is shouldered is mentioned, which seems pretty much pass/fail to me.

Also mentioned is information about how people will /are using the firearm and that seems a lot more subjective to me.

I can understand the part about maker advertising, obviously if the maker shows it being fired from the shoulder, that's their intent. But what weight does one apply to U tube videos showing morons screwing around firing it from the shoulder?? Clearly they are doing it, but how much should that MATTER when classifying the firearm NFA or not? The rule doesn't say.

Is it right if I have a legal item and use it in a legal manner that it should become illegal because some other people use it in an illegal manner???

I don't think so, but they keep trying to do that, and sometimes, succeed. After all isn't that the basis of all gun control??

Some people doing wrong, so everyone gets restricted??? Seems like it, to me.

 

[zeke]

Particular to those who may own "imported" pistols with braces. From the final rules preamble. appr pp 246

"The Department disagrees with the commenter who suggested that there will be financial implications resulting from the removal and replacement of imported parts for owners who imported pistols and added a “stabilizing brace.” The commenter incorrectly interpreted 18 U.S.C. 922(r) as requiring the removal and replacement of imported parts to comply with section 922(r). Section 922(r)generally makes it unlawful “for any person to assemble from imported parts any semiautomatic rifle,” and 27 CFR 478.39
168 OMB,Circular A-4 38(Sept. 17, 2003), https://www.whitehouse.gov/wpcontent/uploads/legacy_drupal_files/omb/circulars/A4/a-4.pdf.
169 Type 7FFLSOTs may manufacture NFA firearms without payment of the making tax pursuant to 27 CFR 479.68 provided that the firearm is reported and registered as required by Part 479. Section 479.103 generally requires a Type 7FFLSOT to register firearms manufactured on an ATF Form 2 by the close of the next business day after the manufacture. Firearms of the sort discussed in this rule were manufactured and subsequently transferred by Type 7 FFL SOTs without the timely submission of a Form 2by the close of the next business day after manufacture.

246

provides that a person may not assemble a semiautomatic rifle using more than 10 of the imported parts listed in the relevant paragraphs of the regulation. The criminal violation under18 U.S.C. 922(r) is for the “assembl[y]”of the semi-automatic rifle;therefore, modification of this kind of firearm through the removal of the relevant parts would not cure the 922(r) violation because the “assembl[y]” has already occurred. Nevertheless, for the purposes of the costs outlined in the standalone RIA, ATF assumes this group may use another scenario,such as destroying the firearm or turning it in to ATF, by using the population derived from bump-stock-type devices as a proxy.

https://www.youtube.com/watch?v=tK4gJeJ_CI4

 

[Aguila Blanca]

^^^

Translation: "Turning in or destroying the firearm does not create a financial implication."

Must be the new math.

 

[HiBC]

Once again, I'm trying to play by the rules.
Looking through the document, among the "factors" were some pictures of the Nimrod firing a braced AR Pistol/SBR

One of the pictures showed our Nimrod with a cheek weld on the buffer tube. The Brace/Buttstock was clearly a few inches off his shoulder. Clearly the brace was not being used as a shoulder stock.

Our Friends at the BATF said "NO! You can't do that! Go to jail!!

HMMM. This gives me the heebie-Jeebies. I don't want to go to jail. Does this mean if I contact the buffer tube with my face as I look through the sights I go to jail?

One fact that may be critical is in the BATF picture our Nimrod (gasp) has a brace attached to to his buffer tube,so it might be an SBR.

My buffer tube is naked. No brace or attachment. My gun is a pistol to the best of my knowledge. "I wouldn't have it any other way"

Do I have to go to jail for a cheek weld??? Its kind of important to me.

 

[Nathan]

I heard the best advice in town today. Hold off for now until the court battles are fought. There will be at least 1 big suit that will at least go to district court. It will likely result in a stay of enforcement. The ATF has stated you have 120 days to file your form 1.

Those people who threw bump stocks away now see the direction that is heading.

We still have a country of laws and for those who cannot read, we have lawyers and lawsuits to help them with that.

 

[zeke]

I heard the best advice in town today. Hold off for now until the court battles are fought. There will be at least 1 big suit that will at least go to district court. It will likely result in a stay of enforcement. The ATF has stated you have 120 days to file your form 1.

Those people who threw bump stocks away now see the direction that is heading.

We still have a country of laws and for those who cannot read, we have lawyers and lawsuits to help them with that.

Certainly agree with this, at least until the 120 days is underway (depending on option someone decides to pursue)

Still don't see the final rule published in the federal register?

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

It is my understanding the final rule is not in effect and the 120 days doesn't start till it is published in the Federal Register. And 10 days between the final rule being signed and then published is a long time.

 

[stagpanther]

Once again, I'm trying to play by the rules.
Looking through the document, among the "factors" were some pictures of the Nimrod firing a braced AR Pistol/SBR

One of the pictures showed our Nimrod with a cheek weld on the buffer tube. The Brace/Buttstock was clearly a few inches off his shoulder. Clearly the brace was not being used as a shoulder stock.

Our Friends at the BATF said "NO! You can't do that! Go to jail!!

HMMM. This gives me the heebie-Jeebies. I don't want to go to jail. Does this mean if I contact the buffer tube with my face as I look through the sights I go to jail?

One fact that may be critical is in the BATF picture our Nimrod (gasp) has a brace attached to to his buffer tube,so it might be an SBR.

My buffer tube is naked. No brace or attachment. My gun is a pistol to the best of my knowledge. "I wouldn't have it any other way"

Do I have to go to jail for a cheek weld??? Its kind of important to me.

I'm in the same boat as you--my AR pistols have a bare buffer tube but I do use it against my cheek. My personal opinion is that there is no way you can can leverage the buffer tube in such a way to get the equivalent of shoulder support you do with any kind of brace/stock--so the ruling is still irrelevant to me. Well, not entirely--because I think they are ultimately going after "small AR's" of any configuration, and probably some manufacturer will quickly come up with a "cheekpad brace." That should at least make the dentists happy. I've already decided to simply pull the short barrels and convert to rifles--while I still have the time. I did take pictures of my pistols on their "born on" dates but do not have official birth certificates from a hospital's attending physician, so I figure I better do the long-barrel conversion now to be on the safe side.

 

[zukiphile]

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

1. He says in reference to a post that does not contain substance.
2. He says as he once again calls attention to a post I didn't address to his satisfaction.

Here you confuse a post from which you have failed to draw substance with a post that lacks it.

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.

The point of rules is that they can deal with new situations without having to amend legislation.

The prominent defect in your analysis is its focus on what you think the rule is for rather than what it reads.

What you think the point of a regulation is doesn't bear on what the regulation actually reads, a topic you've avoided assiduously. Whether an item is regulated under the NFA precedes and is distinguishable from a determination of the legality of possession. Your analysis is confused because you resist discreet analysis if the issue presented by a change in the agency standard for inclusion of an item in the NFA.

And yes, of course it is whether the rule creates illegal/regulated firearms that were legal/unregulated under the NFA .

I'm glad to see the recognition here that whether an item is regulated is the issue.

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 original SIG brace on a pistol still isn't regulated under the NFA unless...

Unless it falls within the new test, which it may.

...unless other factors indicating that the resulting firearm is intended to be shouldered are present.

That would be a departure from the prior determination. Since the six regulatory considerations lack sufficient specificity to allow a reader to confidently apply them for his own forecast of agency treatment, he can't rule out inclusion of his sig braced AR pistol with a scope. Your exception, "unless", concedes the issue of the expansion of the class of weapons described.

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.

Nothing is 100% certain, if certainty is the standard, then it's impossible to attain.

Indeed.


A provision will be void for vagueness where men of common intelligence must necessarily guess at its meaning and differ as to its application. Because the six considerations lack the specificity that would drive a clear and common understanding and consistent application, they should draw that challenge.

I'm willing to concede that it only meets the standard of being "beyond a reasonable doubt".

Where the issue is a reg under which an agency can exercise undue discretion in classification, that it leaves you without doubt you assess as reasonable isn't a pertinent standard in construing it.

 

[zukiphile]

You are viewing this through the narrow lens of your understanding of the law...

You can stop right there, because that's all that needs to be said. You are correct. I'm doing that because the law is the basis on which the ruling will be judged.

Here, you conflate “the narrow lens of your understanding of the law” with “the law”. To assert that the law is the basis on which the ruling will be judged is tautological. What various courts find over the course of various challenges will be the law on this point.

It will not be judged on the basis of what might have been allowed for a time under two, now invalidated rulings.

Because you don’t know the basis on which the regs will be challenged, you don’t know the basis on which the challenges will be adjudicated. This is an epistemic limit not apparent in the lens of your understanding of the law as you've presented it. An assertion based on what you don’t and can't know is not a step in the direction of a well reasoned conclusion.

The problem is that, at the time all those firearms were purchased, the BATFE said they were legal...

And now they've invalidated those rulings so what they said means nothing. Furthermore, it's moot anyway because rulings are not judged on the basis of other rulings, they are judged on the law on which they are based..

A challenge to a reg can be for variation from the code on which it is based, but that is not the only ground for challenge. An agency can have enforcement discretion, but it lacks the ability to enforce on litigants or courts a fiction that its prior history didn’t happen. The agency doesn’t control the parts of regulatory history on which a challenge can be brought.

That has been explained for you previously at posts 172 and 176, and at post 181 I asked whether you understood that.

As far as the damage done by the confusion generated by the invalidated rulings--that's why there's an amnesty. Where things that are illegal can be made legal. If there weren't things that are currently illegal out there, it would make no sense to have an amnesty--which is a HUGE hint that it's not possible to make headway on judging this ruling on the basis of past rulings.

Do the regs contain the word “amnesty”? I understand that we are using the term loosely, but the regs certainly don’t describe an amnesty. The SOL on violations of revenue code is three years, or six years if the code was violated for the purpose of evasion. The regs don’t require the granting of a license, and we’ve an indication from the agency that the 88day rule will leave amnesty applicants subject to enforcement when their applications are rejected for failure to pass the background check in a timely manner.*

The observation of the agency’s muddled history on the definition of rifle is not an argument in favor of its interpretation du jour, but does serve as evidence of the vague quality of that portion of the NFA. We may one day thank Merrick Garland for that one.

Technicalities aside, I don't think you'll convince many of the people who own those things that this isn't a change in the law.

You can call them technicalities as long as you understand that these technicalities could potentially send someone to federal prison if they dismiss them.

As far as there being a change in the law, it's not a matter of convincing people--there clearly hasn't been a change in federal law.

There hasn’t been a change in the text of the US code because the reg isn’t an act of Congress. My fifth edition of Black’s indicates “That which must be obeyed and followed by citizens subject to sanctions or legal consequences is law.” In that sense every federal regulation that can be enforced against an citizens is a law.

The law is not only the US code. It also includes regs, case law and the doctrine developed within it, and will be influenced by interpretive doctrine. If I’m translating the point into laymanese, a reg that changes so as to land me in prison is a change in the law.

Second, I don't see anywhere that the ATF is saying that affected firearms are illegal.

The existence of the amnesty strongly implies that at least some of them are illegal.

...if they examine a gun with a brace from Joe's Brace Inc and rule it just a brace, then guns with Joe's brace are just pistols with a brace and not an SBR or NFA item.

It's important to note that one can end up with "a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder" even if one puts a legal brace on it.

That conclusion is correct, but the explanation is muddied by bringing in illegality. An issue is whether a weapon can be determined to fall within NFA regulation using the six considerations without guessing about application of those considerations. Where a weapon with a Joe’s Brace Inc brace is submitted and determined not to be within the NFA because it isn’t "a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder", then a later determination that it is within the NFA appears capricious and arbitrary and may subject the determination to challenge under the Administrative Procedures Act for that very reason.


______________________
*I believe there are limits on revenue enforcement where a return has been filed, and I'm not confident the 88 day "rule" will be applied against applicants. That an agency representative indicated a position on enforcement may not accurately reflect the agency position in future - a recurring theme.

 

[stagpanther]

Can't you two just go settle this in the mud wrestling pit?

 

[jrinne0430]

So, if we are to register braced pistols as an SBRs (BATF expectations), is it exempt from the required markings? Do you mark the brace too?

ONCE THE FIREARM IS REGISTERED, AM I REQUIRED TO MARK THE FIREARM SINCE I MANUFACTURED
A SHORT-BARRELED RIFLE (SBR)?
• If the SBR equipped with a “stabilizing brace” is registered within the 120-day tax forbearance
period, the possessor is allowed to adopt the markings on the firearm. The maker’s marking
exception is only applicable to firearms that are registered pursuant to the final rule. If the
firearm is a personally made firearm, the possessor must mark in accordance with 27 CFR 478.92
& 479.102 prior to submitting the E-Form 1

 

[HiBC]

I've been skipping over it.

 

[JohnKSa]

Yeah. It's really not that complicated, in spite of concerted attempts to make it so.

Let's look at what we know for certain.

1. The BATF has the authority and responsibility to change regulations within the bounds of the applicable federal code. That authority certainly extends to changing existing definitions. Therefore the initial claim that they overstepped their authority by changing definitions is obviously incorrect.

2. The BATF has not altered federal code with this rule. Therefore the initial implication that they are making new law (legislating) and therefore overstepping their authority is obviously incorrect.

3. Invalidated opinion letters are not the standard under which new rules are judged. Therefore, the idea that inconsistencies between this rule and the two invalidated opinion letters can provide grounds for challenging the validity of the new rule is incorrect.

4. The new rule will be judged based on whether or not it is consistent with the NFA, specifically if it tries to regulate/outlaw items that are legal/unregulated under the NFA.

That's four very simple concepts. Easy to understand, logical, easily verified, stated in clear terms without the need to resort to any $5 words, legal jargon or volumes of verbiage.

All that remains to determine is whether the result of #4 will show that the rule is or isn't consistent with the NFA. So far the attempt to find an example of something that is regulated/outlawed by the rule but that would have been legal/unregulated under the NFA has been unsuccessful.

Draw your own conclusions.

 

[Sharkbite]

So, is it understood that simply removing the “brace” makes this rule moot? At that point dont you have just an AR pistol? And not a braced handgun?

 

[zeke]

So, is it understood that simply removing the “brace” makes this rule moot? At that point dont you have just an AR pistol? And not a braced handgun?

Only in some ones' opinion, and no one here knows anything "for certain". Nothing is "verified". Imo, and experience in participating in changing/using state codes/statutes/guidances, the substantial changing of the definition (using a differing definition than the enabling statute) changes the code. Especially how the definition of rifle is so convoluted.

The only thing "for certain", "incorrect" or "correct" is there are differing opinions.

As always, time will tell. And just to be informative, after 11 days the final rule has not been published in the Federal Register yet. For some this may indicate some serious problem have arisen, which is conjecture also.

 

[Aguila Blanca]

To put this into some sort of perpsective, I work with the wife of a municipal police officer. Her husband owns a couple of these :"other" AR-15s, which he built. As a police officer, he has access to the town's attorney and also to the state police firearms unit and their in-house attorney.

He asked his wife to ask ME what the new rule means. That means the officers in his department don't understand it, and the attorneys they have consulted either all admit they don't understand it or (more likely) disagree on what it means.

It's a can of worms. That's the only thing that's certain.