ATF and pistol braces ?

[JohnKSa]

Anything that attaches to the rear of the rifle providing surface area that can be used to fire the gun from the shoulder appears to be included.

That's obviously not correct.

That's a factor that is considered, but that doesn't mean anything on the back of the rifle that provides surface area that can be used to fire the gun from the shoulder is automatically a disqualifying feature. The rule makes it very clear that the authors expected that stabilizing braces (real braces that actually serve the purpose of a brace and don't have features that are specific to stocks and serve no purpose for a stabilizing brace) will remain legal without NFA paperwork.

Even the FAQ you linked says it explicitly.

"If the firearm with the “stabilizing brace” is not an SBR, it need not be registered and, consistent with the federal firearm laws, may continue to be possessed and used by persons with or without a disability."

Obviously any "stabilizing brace" will attach to the rear of the rifle and provide surface area that can be used to fire the gun from the shoulder and yet the FAQ states clearly that some firearms with stabilizing braces will not need to be registered.

Here are some excerpts from the rule document.
https://www.atf.gov/rules-and-regul...armswithattachedstabilizingbracespdf/download

"Nothing in this rule bans “stabilizing braces” or the use of “stabilizing braces” on pistols; however, firearms with an attached “brace” device may be subject to statutory and regulatory requirements depending on the firearm’s objective design features and other factors, as discussed in this rule. Furthermore, this rule does not impose any new legal obligations on owners of “stabilizing braces” at all, as any obligations for these owners result only from the NFA and the GCA." (Clearly some stabilizing braces will not affect a firearm's NFA status.)

"Accordingly, the Department amends the definition of “rifle” under 27 CFR 478.11 and 479.11 to expressly state that the term “designed or redesigned, made or remade, and intended to be fired from the shoulder” includes a weapon that is equipped with 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, provided other factors, as listed in the amended regulations and described in this preamble, indicate that the weapon is designed, made, and intended to be fired from the shoulder. The other factors are: " (Clearly a rearward attachment providing surface area that allows the weapon to be fired from the shoulder is only one factor.)

 

[zeke]

That's obviously not correct.

That's a factor that is considered, but that doesn't mean anything on the back of the rifle that provides surface area that can be used to fire the gun from the shoulder is automatically a disqualifying feature. The rule makes it very clear that the authors expected that stabilizing braces (real braces that actually serve the purpose of a brace and don't have features that are specific to stocks and serve no purpose for a stabilizing brace) will remain legal without NFA paperwork.

Even the FAQ you linked says it explicitly.

"If the firearm with the “stabilizing brace” is not an SBR, it need not be registered and, consistent with the federal firearm laws, may continue to be possessed and used by persons with or without a disability."

Obviously any "stabilizing brace" will attach to the rear of the rifle and provide surface area that can be used to fire the gun from the shoulder and yet the FAQ states clearly that some firearms with stabilizing braces will not need to be registered.

Here are some excerpts from the rule document.
https://www.atf.gov/rules-and-regul...armswithattachedstabilizingbracespdf/download

"Nothing in this rule bans “stabilizing braces” or the use of “stabilizing braces” on pistols; however, firearms with an attached “brace” device may be subject to statutory and regulatory requirements depending on the firearm’s objective design features and other factors, as discussed in this rule. Furthermore, this rule does not impose any new legal obligations on owners of “stabilizing braces” at all, as any obligations for these owners result only from the NFA and the GCA." (Clearly some stabilizing braces will not affect a firearm's NFA status.)

"Accordingly, the Department amends the definition of “rifle” under 27 CFR 478.11 and 479.11 to expressly state that the term “designed or redesigned, made or remade, and intended to be fired from the shoulder” includes a weapon that is equipped with 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, provided other factors, as listed in the amended regulations and described in this preamble, indicate that the weapon is designed, made, and intended to be fired from the shoulder. The other factors are: " (Clearly a rearward attachment providing surface area that allows the weapon to be fired from the shoulder is only one factor.)

taken in the context in which it was presented, it is indeed correct. The context was that anything attached to the rear can be included in applying the factors. Never said, or intended to say, it was automatically a disqualifying feature. So please do not feel free to put words in my mouth. Am thankful that some are now reading the rule in order to comment on it.

 

[zeke]

just found these this morning, which may be helpful to the discussion. Also it appears i was wrong about waiving the $200 tax, as it appears there is a specific statute that allows it.

https://www.youtube.com/watch?v=URmpjODvc3w

https://www.youtube.com/watch?v=qn2u_ECSGBA

 

[Jim Watson]

If you take the opportunity to register your newly discovered SBR on the no-fee plan, what happens when you sell it? Do you and/or the buyer now owe $400?

 

[zukiphile]

"This final rule’s amended definition of “rifle” clarifies that the term “designed,
redesigned, made or remade, and intended to be fired from the shoulder” includes a
weapon that is equipped with 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, provided that other factors, as listed in the rule, indicate that the
weapon is designed, made, and intended to be fired from the shoulder. These other
factors are:"

I'd add that the "clarification" the agency offers isn't benign or a clarification at all. It's an expansion. The underlined language is the statutory formula. The bolded language is an expansion.

It isn't, or shouldn't be, within executive authority to legislatively expand criminal liability.

 

[Aguila Blanca]

I'd add that the "clarification" the agency offers isn't benign or a clarification at all. It's an expansion. The underlined language is the statutory formula. The bolded language is an expansion.

It isn't, or shouldn't be, within executive authority to legislatively expand criminal liability.

They aren't expanding on the law. They're just defining the definition.

It reminds me of the report I read several years ago about a police officer who explained to a reporter that he had done something (which was apparently unlawful) because he was "investigating an investigation."

 

[zukiphile]

They aren't expanding on the law. They're just defining the definition.

Just so we don't lose touch with the statutory definition, 26 USC sec. 5845 says in part,

(c)Rifle
The term “rifle” means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed cartridge.

Emphasis added. The conjunction is and. The 2014 guidance that the use of an item can't alter its classification under the NFA is consistent with the statutory formula. A reg that expands the definition to a feature of a surface area that allows shouldering isn't.

 

[Aguila Blanca]

^^^ I was attempting (poorly, it seems) to be facetious:

"We're defining the definition."

As in, "I"m investigating an investigation."

 

[zukiphile]

^^^ I was attempting (poorly, it seems) to be facetious:

No, it wasn't poorly done. I'm not very good at conveying comic intent, and it looks as if I'm no better at conveying receipt.

 

[44 AMP]

SBRs aren't "regulated" because they are easily concealed, but because a prior draft of the NFA included pistols and legislators didn't want anyone to be able to circumvent the NFA by just buying a rifle, hacking off the stock, cutting the barrel down, and having a pistol sized rifle.

I heard a somewhat different version. Along with machineguns, SBRs and "sawed off shotguns" were part of the initial NFA draft, and so were handguns. When some folks pointed out to congress that including handguns would kill the legislation, they removed that section and replaced it with regulating "silencers".

, and intended to be fired from the shoulder

I don't see how explaining that looking at all the things on the back of the firearm that provide a surface area that could be used to fire it from the shoulder, in order to determine if it was intentionally made /remade to so, is changing the definition of rifle in any way, shape, or form.

Could you explain your reasoning on that point?

 

[JohnKSa]

taken in the context in which it was presented, it is indeed correct. The context was that anything attached to the rear can be included in applying the factors. Never said, or intended to say, it was automatically a disqualifying feature.

I did not mean to put words in your mouth. The comment I responded to, in the context of this earlier comment by you was what generated my response.

From the specific line of wording " includes a weapon that is equipped with an accessory, component, or other rearward attachment (e.g., a “stabilizing brace”) that provides surface area"

And then it is not clear whether all the factors must be present, one factor or any combination of factors. It appears very clear to me that anything they would consider providing an unspecified amount of surface area could have the factors applied to it.

Clearly it takes more than just one factor based on the comments in the rule. Surface area that allows shouldering would be one of those factors, but not the only one.

I'd add that the "clarification" the agency offers isn't benign or a clarification at all. It's an expansion. The underlined language is the statutory formula. The bolded language is an expansion.

What they are now saying explicitly is that a rearward attachment that "provides surface area that allows the weapon to be fired from the shoulder" will be one of the factors in determining if the firearm is "designed or redesigned, made or remade, and intended to be fired from the shoulder".

It's not expanding the law, it's providing insight into how they will go about making the case that a particular firearm is an SBR.

 

[Tom Servo]

Along with machineguns, SBRs and "sawed off shotguns" were part of the initial NFA draft, and so were handguns.

Correct. Handguns would have carried a $5 tax and registration. Karl Fredericks with the NRA convinced the committee it would be unworkable.

 

[zukiphile]

I don't see how explaining that looking at all the things on the back of the firearm that provide a surface area that could be used to fire it from the shoulder, in order to determine if it was intentionally made /remade to so, is changing the definition of rifle in any way, shape, or form.

Could you explain your reasoning on that point?

Certainly. All emphases below are added.

The final rule itself at page 269 concedes that it amends the definition of rifle. The final rule is not a mere explanation of the reasoning behind agency application of statute; it is binding.

The statutory definition is:

The term “rifle” means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed cartridge.

In order to fit the definition of rifle, the design, making and intention to be fired from the shoulder all need to be present. Intending to fire something from the shoulder that was not designed to be fired from the shoulder will not satisfy the definition. That term describes a universe of objects.

The final rule itself purports to “amend” that definition. Of course an executive agency does not have the power to amend legislation. Does the purported amendment of the definition expand the universe of objects or reduce it? The definition in the final rule is in pertinent part:

This final rule’s amended definition of “rifle” clarifies that the term “designed,
redesigned, made or remade, and intended to be fired from the shoulder” includes a
weapon that is equipped with 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, provided that other factors, as listed in the rule, indicate that the
weapon is designed, made, and intended to be fired from the shoulder. These other
factors are:

The definition in the final rule contains the statutory locution but adds to that universe of described objects “a weapon that is equipped with 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 language expands the universe of objects described. The universe is expanded not by design, making or intent to be fired from the shoulder, but by a surface area that allows the weapon to be fired from the shoulder. The final rule asserts that this addition is included in the statutory definition, but that is clearly untrue. A surface area that allows a weapon to be fired from the shoulder is a much lower threshold than “designed, redesigned, made or remade, and intended to be fired from the shoulder”. This assertion that the amendment is “included” in the existing statutory definition is not an assertion that the amendment language will be but one of the factors in determining if the firearm is “designed,
redesigned, made or remade, and intended to be fired from the shoulder”. The “other factors” are separately listed and may or may not trigger application of the “surface area that allows” expansion of the statutory definition.

The balance of the definition, “provided that other factors”, should serve to restrict the degree to which the agency “amendment” expands the universe of described items, but is vague enough to allow ample agency discretion and application. Whether the final rule is so vague that it cannot be enforced constitutionally is a different issue. One ambiguity it does not suffer is that it expands the statutory definition of “rifle”.

If you doubt that the final rule purports to expand the statutory definition of “rifle” ask yourself whether in your reading of the final rule there could be any weapon that was not designed made and intended to be fired from the shoulder but could be brought under the NFA under the terms of this final rule. If your answer is negative, then there was no need for the agency to promulgate rule. A simple guidance letter can clarify agency reasoning, if that is the agency’s intent. The promulgation of the final rule indicates that the agency has been prompted to do considerably more than offer reasoning.

 

[Spats McGee]

I've been mostly without internet since Friday afternoon, so I'm a little late to the party. This is, what an almost-300-page rule? Even skimming it is going to take some time.

With that said, zukiphile has stated my main concern more eloquently than I ever could.

....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?

_______________________
* As an example, if you were to submit an application for an SBR with an actual stock, would you expect a stamp or a summons?

 

[JohnKSa]

The problem with this argument is that it ignores 80+ years of history and focuses only on the immediate past.

The NFA makes it illegal to put shoulder stocks on pistols. That's not because the legislators didn't like the appearance of shoulder stocks on pistols, it was because they intended to deny a particular functionality to the general population unless they registered and paid the tax.

Which means that the functionality of an item attached to the back of a pistol is extremely relevant. In fact, it's really the only thing that is relevant.

The best argument that can be mounted at this point is that the recent history of BATF's incompetent enforcement of the law preventing shoulder stocks on pistols (by allowing some items that clearly functioned as shoulder stocks to be installed on pistols in violation of the law) places a burden on the government to continue that incompetent enforcement into the future. Good luck with that.

 

[zukiphile]

It ignores no history to read the statute and measure the proposed regulation against it. Where design, making and intent to shoulder are the statutory measure, they are relevant.

I could see a number of arguments against enforcement of the new standard.

I've already mentioned the rule of lenity. 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. If the agency has demonstrated doubt that you've built an SBR, can they demonstrate your guilt beyond a reasonable doubt?

Numerosity should also work against the government in this instance. If the 2d Am. protects weapons "in common use", and the government countenanced the possession of tens of millions of these SBRs, it should not be permitted to unduly burden possession, even where Congress has clearly legislated imposition of substantial burdens.

Where the regulation requires an exercise of power not granted by congress, we are left with something like the eviction moratorium -- a regulatory action taken by the exec that lacks legislative authority.

How are the tens of millions of possessors of these items to evaluate their position vis a vis the federal government? Does the final rule give fair notice of what items the agency will determine are a transgression and which aren't? Or is what amounts to an agency reservation of discretion so vague that it is unconstitutional? Several people in this thread have commented that they have steered clear of possession of any braced pistol for fear of being entangled in variable and inconsistent federal regulation and potential application of criminal sanctions. A law is unconstitutionally vague when a person of common intelligence must necessarily guess at its meaning.

I don't see making the government function within its limits or holding the government accountable for its actions over the last decade as unfair, but even if it were, it isn't my duty to be fair to the government.

 

[zeke]

I've been mostly without internet since Friday afternoon, so I'm a little late to the party. This is, what an almost-300-page rule? Even skimming it is going to take some time.

With that said, zukiphile has stated my main concern more eloquently than I ever could.

As a matter of interest, the document containing the final rule is almost 300 pages. The final rule itself is only about 10 pages, sec V starting on pp 268. Some may say the other approximately 290 pages can be used to interpret or apply the rule. Imo, the actual language in the rule matters more, unless the rule specifically references something out side of it.

 

[zukiphile]

Zeke, mea culpa. I followed the agency website to a button that reads "Read the Final Rule", but it contains quite a bit more than that.

 

[zeke]

edited to remove incorrect info

 

[zukiphile]

I am reading those references as sections of the CFR, not US code. The code section cited I understand to be offered as the legal basis for the change in the reg.

PART 479—MACHINE GUNS, DESTRUCTIVE DEVICES, AND CERTAIN OTHER
FIREARMS
3. The authority citation for 27 CFR part 479 continues to read as follows:
Authority: 26 U.S.C. 5812; 26 U.S.C. 5822; 26 U.S.C. 7801; 26 U.S.C. 7805
4. In § 479.11, revise the definition of “rifle,” to read as follows:

An agent of the exec branch may promulgate regs, rules made pursuant to and consistent with congressional legislation. However, agency authority to do this is limited, and regulation doesn't amend legislation. In a similar way, Congress doesn't amend the Constitution with mere legislation.