ATF and pistol braces ?

[zukiphile]

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,

…. Those other interpretations still exist as evidence of the ambiguity even where the agency decides to move on to another position.

and at post 172

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?

Pretending? Handwaving?

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.

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.

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.

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.

I understand that some of us think it's fine.

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 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.

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.

…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.

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?

 

[44 AMP]

I would point out, regarding the fact that there is no "point system" or "scoring criteria" for the new factors in the new reg does not mean they do not exist.

All it means is that such instruction is not in the released document.

I cannot imagine an agency as experienced as the ATF not providing instruction to its agents on how to apply the factors in making a judgement. The fact that we are not (currently) being given that information only means we are not currently given that information. I'm sure it is in some other (internal) ATF documents.

Some things to remember, about all the previous letters and determinations, they are specific to the firearm being ruled on, and that they never provided 100% immunity from prosecution. What they do provide is evidence that you took what steps you could to ensure you were acting in good faith, and attempting to fully comply with the law, and the regulations.

Since intent is a factor when considering criminal charges, having a letter showing you did not intend to violate anything MIGHT be enough to prevent charges being brought. But that is not the same as saying charges would or could never be brought. Every case is an individual.

 

[zeke]

As an aside, apparently the final rule has not been published yet? I have no idea how long it takes, or the steps involved, to electronically publish a signed final rule. But it shouldn't take this long? Course have absolutely no experience in the matter , but would seem to me they would want to have it published right quick? Cold feet, second thoughts?

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

 

[JohnKSa]

They mean that the federal government is not entitled to construe ambiguous criminal code in its own favor.

The new rule is entirely consistent with the NFA and provides clarification with regard to stabilizing braces that didn't exist when the NFA was penned. The explanations provided attempt (however successfully) to eliminate the ambiguity created either by the opinion letters or by their misinterpretation (depending on your viewpoint).

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?

No, I don't understand it "now", I've understood it all along. The problem is that you are focusing on the confusing situation created by the opinion letters as if that makes sense as a good starting point to determine if the law has been expanded. The problem is that everyone agrees that it was a confusing situation and that people had the wrong impression about what the true state of legality was. It doesn't make sense to use the ambiguity of that situation as a reference point to establish that the current rule expands the law.

That is not constructive. Instead, compare the rule to the original NFA as it was interpreted before all the confusion arose.

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”.

That's not generally how the law works. It doesn't say--this is legal, this is legal, this is legal, this is unregulated, everything else is illegal/regulated. It points out the things that are illegal/regulated.

There's nothing in the NFA or the rule that makes a pistol with a featureless buffer tube an NFA item and so it's not.

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.

1. It's possible to invalidate something in the interest of clarity even while being able to demonstrate that it was consistent with the intent and not confusing when taken in the proper context.

2. The idea that if ambiguity ever exists, it can not be eliminated and remains in play or that if an error is ever made it can not be corrected and must persist in any future clarification is simply not true. Everyone agrees that the letters caused confusion, albeit for different reasons depending on the position that they take. Getting rid of them and providing new guidance is constructive, particularly if the new guidance is consistent with the NFA--and it is.

Continuing to revisit the letters and trying to use them to attack the clarification that replaces them doesn't make sense and isn't productive. The rule won't be judged based on the content of the letters, it will be based on whether or not it's consistent with the NFA. And it is.

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”.

Except that it does not when the NFA is the basis on which it is judged.

Before stabilizing braces existed and the opinion letters came out, can you imagine anyone trying to argue that it was legal to attach a device to the back of a pistol that allowed it to be shouldered? Of course not. There was no need to talk about surface area on the back of the item, or stock-like features, or features that didn't serve a functional purpose in an item that didn't even exist yet.

But now there is a need for such--specifically because true stabilizing braces are legal. Which means that now there is a class of item that can be attached to the back of a pistol without requiring registration. That's quite obviously not an expansion of the control exerted by the NFA. There's actually more leeway for modifying pistols under the rule than there was before stabilizing braces came along. Not only is it untrue that the definition of rifle has been expanded, the reality is that if you get right down to the nitty gritty of it, fewer things now actually qualify as SBRs--because now there are some pistols with a whole new class of rearward attachments that can still qualify as pistols.

 

[zukiphile]

They mean that the federal government is not entitled to construe ambiguous criminal code in its own favor.

The new rule is entirely consistent with the NFA and provides clarification with regard to stabilizing braces that didn't exist when the NFA was penned. The explanations provided attempt (however successfully) to eliminate the ambiguity created either by the opinion letters or by their misinterpretation (depending on your viewpoint).

Here, you have confused the concepts of inconsistency and ambiguity. Where there are four different positions, two of them may be consistent with one another, but the full set of four demonstrate an ambiguity.

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?

No, I don't understand it "now", I've understood it all along.

If that is so, then your assertion at post 180,

The contention that once the need for clarification is obvious, it can't be provided doesn't make sense.

… Did not pertain to anything I have written. In fact I explained to you that while the ambiguity may be resolved, it isn’t the agency’s role to resolve it. See post 181.

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”.

That's not generally how the law works. It doesn't say--this is legal, this is legal, this is legal, this is unregulated, everything else is illegal/regulated. It points out the things that are illegal/regulated.

There's nothing in the NFA or the rule that makes a pistol with a featureless buffer tube an NFA item and so it's not.

That is generally how a definition works, and the code definition doesn’t do that.

Your belief that what someone configured as an AR pistol is not an SBR under the new regulation remains unsubstantiated. That you repeat your assertion after I have explained to you why you cannot substantiate it is a matter I leave to your introspection.

Before stabilizing braces existed and the opinion letters came out, can you imagine anyone trying to argue that it was legal to attach a device to the back of a pistol that allowed it to be shouldered? Of course not.

This may illustrate the exact manner in which you’ve misinterpreted the text of the code and the reg. “Allows” isn’t part of the statutory definition. See posts 145, 147 and 153.

Continuing to revisit the letters and trying to use them to attack the clarification that replaces them doesn't make sense and isn't productive. The rule won't be judged based on the content of the letters, it will be based on whether or not it's consistent with the NFA. And it is.

I have already explained above why the differences between the NFA and code aren’t the only pertinent points in determining whether an ambiguity is present.

We should both acknowledge that you don’t know how the regulation will be judged or what’s productive in coming to an understanding of the dangers it may pose to people. If your goal is to be helpful, you might consider whether your repetitive contradiction without explanation of any of the text serves that purpose.

 

[zukiphile]

On to another aspect of this episode,

The following may be prudence or paranoia, but I express it anyway:

Agency interpretations are written in sand. There's now a reg that offers an amnesty program in which you submit photographic evidence of your possession of an untaxed SBR. In response, the agency decides whether your item falls within the NFA today or whether its an NFA item for which you will receive neither a stamp nor amnesty*. If it doesn't fall within the NFA as determined by the examiner, you can't get a stamp. The agency retains the photograph, the description, your fingerprints.

What regs does the next gust of wind bring? Are you content that it won't be painful or expensive?

Steve Stamboulieh, an attorney representing the GOA, relates that he posed the following question to the ATF:

Under the 88 day rule, a background check that takes longer than 88 days is returned denied. If you receive a million applications for braced SBRs and cannot complete the background check within the 88 day period, what do you do with the people who've submitted those form 1s?

The answer he received: Enforce.


I am not representing that this response represents the final result of agency deliberation, but it does reflect an application of current and known procedure. That merits thought before handing the agency unassailable proof that you put together what they consider an untaxed SBR.

 

[JohnKSa]

Here, you have confused the concepts of inconsistency and ambiguity. Where there are four different positions, two of them may be consistent with one another, but the full set of four demonstrate an ambiguity.

Semantics. Call it ambiguity or inconsistency, the point is that there was confusion that needed to be addressed. The rule does that, and remains consistent with the NFA.

In fact I explained to you that while the ambiguity may be resolved, it isn’t the agency’s role to resolve it. See post 181.

If your argument is that the BATF isn't allowed to make rules, then you have a hard row to hoe.

Resolving ambiguity is exactly the point of rulemaking and that is certainly one of the agency's responsibilities.

Your belief that what someone configured as an AR pistol is not an SBR under the new regulation remains unsubstantiated. That you repeat your assertion after I have explained to you why you cannot substantiate it is a matter I leave to your introspection.

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.

I have already explained above why the differences between the NFA and code aren’t the only pertinent points in determining whether an ambiguity is present.

We should both acknowledge that you don’t know how the regulation will be judged or what’s productive in coming to an understanding of the dangers it may pose to people. If you goal is to be helpful, you might consider whether your repetitive contradiction without explanation of any of the text serves that purpose.

More handwaving, assertions without substance, and verbiage. There's no need for any of that, in fact it is counterproductive and obfuscative.

All that is needed is one good example with cites to back it up. Show how the rule makes an object regulated/illegal where the NFA would not or there's no basis for a claim that the rule expands the law and therefore oversteps the bounds of the agency.

 

[jrinne0430]

So, if I'm reading the rule correctly, one of the options is to remove the brace and alter it so it cannot be reattached....does this mean the possession of a functional brace (attached or not) becomes illegal if not registered? ATF mentions they do not regulate accessories.

 

[stagpanther]

Hold on guys--need to get another 6 pack and bag of popcorn.

 

[JohnKSa]

So, if I'm reading the rule correctly, one of the options is to remove the brace and alter it so it cannot be reattached....does this mean the possession of a functional brace (attached or not) becomes illegal if not registered? ATF mentions they do not regulate accessories.

If the only possible use you could make of the "brace" is to construct unregistered NFA items then you can't legally possess it in its unaltered state.

If, on the other hand, you own a firearm and can attach the "brace" to that firearm without making an unregistered NFA firearm then you can keep the "brace" and there's no need to alter it.

 

[jrinne0430]

Considering that ATF's rule cover just about all braces (all that I know of), then it will be illegal to even posses most braces. Example; the mere possession of an unaltered MICRO Roni would be illegal?

 

[Aguila Blanca]

If your argument is that the BATF isn't allowed to make rules, then you have a hard row to hoe.

Resolving ambiguity is exactly the point of rulemaking and that is certainly one of the agency's responsibilities.

Rules are administrative regulations -- which is why they get codified in the Code of Federal Regulations (C.F.R.). Regulations are sort of like the President's executive orders: they can be used to clarify and enforce laws that are enacted by the Congress and codified on the U.S. Code, but they are subservient to the enabling legislation. An administrative regulation that exists under a statute cannot change any definitions that are codified in the parent statute -- and that's part of the problem with this new rule. It DOES change the definition. But it has no legal authority to do so.

 

[Aguila Blanca]

So, if I'm reading the rule correctly, one of the options is to remove the brace and alter it so it cannot be reattached....does this mean the possession of a functional brace (attached or not) becomes illegal if not registered? ATF mentions they do not regulate accessories.

We are in untested territory here. Nobody knows what the BATFE is going to do with this new rule as it unfolds -- probably not even the BATFE. But we do know that the BATFE has a long history of prosecutions for "constructive possession," which means that if you have all the parts needed to assemble a machine gun, you "constructively" possess a machine gun -- even if you have never put the parts together and have no intention of doing so.

 

[zukiphile]

Semantics.

Semantics involves the meaning and logic of words. Where an argument is waved away as involving the meaning of the words and how logic drives their construction, that's not a problem with the argument.

If your argument is that the BATF isn't allowed to make rules...

It isn't.

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.

That the prosecution carries the burden of proof isn't a comment on the meaning of the regulation.

We should both acknowledge that you don’t know how the regulation will be judged or what’s productive in coming to an understanding of the dangers it may pose to people. If you goal is to be helpful, you might consider whether your repetitive contradiction without explanation of any of the text serves that purpose.

More handwaving, assertions without substance, and verbiage. There's no need for any of that, in fact it is counterproductive and obfuscative.

If you think that unpacking the text of a regulation obscures its meaning, you may be experiencing a problem with your semantics.

 

[jrinne0430]

Ah yes, constructive possession...

 

[zeke]

And the countdown continues, as the rule doesn't appear to be published yet. The last one i checked was published in 2 days.

 

[Nodak1858]

Considering that ATF's rule cover just about all braces (all that I know of), then it will be illegal to even posses most braces. Example; the mere possession of an unaltered MICRO Roni would be illegal?

I was wondering this as well, is there anything in the new rules that would change them to SBR status as well? I know there was some scuttle butt on the years ago.

 

[44 AMP]

So, if I'm reading the rule correctly, one of the options is to remove the brace and alter it so it cannot be reattached....does this mean the possession of a functional brace (attached or not) becomes illegal if not registered? ATF mentions they do not regulate accessories.

I'm sorry, but the ATF abso-frackin-lutely regulates accessories, if they are, or could be attached to the gun and has done so since the NFA became law. One entire section of the NFA is entirely and exclusively about regulating the accessory commonly referred to as a "silencer".

If the only possible use you could make of the "brace" is to construct unregistered NFA items then you can't legally possess it in its unaltered state.

Here's where we need to choose our words with care, so as not to be ambiguous....

The entire matter is essentially over the use of terms as applied to regulation and law. Specifically "brace" and "stock". A stock IS a brace, but a "brace" may or may not be a stock.

A stocked pistol is an NFA item. THAT is not in dispute. You can legally own a pistol stock, unaltered, and unrestricted. You cannot legally own the stock AND the pistol it could be attached to, unless registered as an NFA weapon.
(think constructive possession, which I feel is a flawed concept, but people have been prosecuted under it)

IF the ATF rules your AR brace IS a stock, then it is a stock and NFA rules apply. If they rule it a brace, NOT a stock, then its just an accessory the ATF doesn't care about or have legal authority over.

So, please, as much as possible, be clear when you say "brace" so we can tell if you mean an actual brace (only) or if you mean brace now legally a stock.

IF, in the eyes of the ATF it is just a brace, they don't care. BUT, if it is now a stock, formerly known as a brace, they do care, and if you remove it from your pistol, but keep both in an unaltered condition where it could be reattached, you're potentially in legal trouble.

A lot of (now) old pistols had the stock attachment lug on the frame ground off, so a stock could not be attached to the gun, to ensure the owner didn't get in trouble for having both the gun and the stock in their collection. I always thought that was tragic, but people did it, to comply with the law, and that same law, unaltered, still applies today (NFA 34).

The stock (formerly known as a brace) isn't, in and of itself illegal. Possession with a pistol it could be attached to, is, unless its NFA registered.

Legal options are simple. Possess both in functional form, NFA registration is required. Possess both with either in non functional condition, NFA registration is NOT required.

Clear as mud yet?? A fine example of our tax dollars at work!

 

[Bill DeShivs]

So here's an interesting question-
During the "amnesty" period, can rifles or shotguns be registered as NFA items for no fee?
There are countless rifles made from receivers that were neither rifle or pistol as sold.
Also, pistol gripped shotguns could also fall in this category.

 

[dogtown tom]

44 AMP

Quote:
So, if I'm reading the rule correctly, one of the options is to remove the brace and alter it so it cannot be reattached....does this mean the possession of a functional brace (attached or not) becomes illegal if not registered? ATF mentions they do not regulate accessories.

I'm sorry, but the ATF abso-frackin-lutely regulates accessories,

Sorry, but he's correct. ATF does not regulate accessories and they've stated that many times in the last decade. Not one ATF regulation covers accessories.

if they are, or could be attached to the gun and has done so since the NFA became law.

"Could be" is irrelevant. If attachment of a particular accessory results in the making of an NFA firearm , then its illegal without an approved Form 1.

An arm brace by itself is not regulated. If an arm brace is attached to a firearm and results in that firearm being an NFA fiream its not the arm brace thats an NFA firearm , its the SBR that is made by attaching that arm brace.

Magpul sell thousands of foregrips a year. They are not NFA firearms and definitely are accessories. Attach one to the Pic rail of your Glock 17 and you've created an NFA firearm. The foregrip can be removed and is not regulated by itself, just the firearm it was/is attached to.

One entire section of the NFA is entirely and exclusively about regulating the accessory commonly referred to as a "silencer".

No, the NFA regulates the firearm called a "silencer".....because federal law says a silencer is a firearm.