ATF and pistol braces ?

[dogtown tom]

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?

It would transfer like any other NFA firearm....Form 4 and $200 tax.
Or
Just reconfigure as a nonNFA pistol or rifle. No form, no tax.

 

[zeke]

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.



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.

Thank you for the correction, it be appreciated. good time for a nap

 

[44 AMP]

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.

Agreed.

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.

In this particular, I think you are focused on a tree, and not the forest, or even other trees in it.

EVERY firearm has a feature that ALLOWS it to be fired from the shoulder. Its the back end of the gun. It may not be practical, it may not be comfortable, it may not be safe, but it is physically possible.

This is where design intent matters. Pull the stock off your rifle, you can still put it to your shoulder and fire it. Its going to bite you, but you CAN do it. The physical construction of the rifle ALLOWS it. Obviously its not designed for that to be the method of use, but the design allows it.

SO, determining applicable regulation must include design intent as a factor.

Regulatory agencies have a degree of latitude writing and interpreting regulations in order to enforce the law. The boundary is the law itself, as written. This is necessary as laws in general rarely cover every possible specific situation. IF you or I disagree and believe the regulation exceeds the law, (or the agencies lawful authority to create or alter the regulation) isn't the proper course of action to petition the court(s) for a ruling, or ask Congress to directly intervene?

It may be a nuance of "legalese" that escapes me, but I don't see where or how a change in the interpretation of an agency regulation changes the law.

 

[Aguila Blanca]

Regulatory agencies have a degree of latitude writing and interpreting regulations in order to enforce the law. The boundary is the law itself, as written. This is necessary as laws in general rarely cover every possible specific situation. IF you or I disagree and believe the regulation exceeds the law, (or the agencies lawful authority to create or alter the regulation) isn't the proper course of action to petition the court(s) for a ruling, or ask Congress to directly intervene?

It may be a nuance of "legalese" that escapes me, but I don't see where or how a change in the interpretation of an agency regulation changes the law.

I am not a lawyer, but I did watch Perry Mason regularly.

I have to disagree when you say that "Regulatory agencies have a degree of latitude writing and interpreting regulations in order to enforce the law." Regulations are adopted by agencies to enforce laws, but the role of interpreting laws is reserved to the judiciary. Regulatory agencies are part of the executive branch, so their administrative regulations are akin to the President's executive orders. The President can issue an EO to carry out the requirements of a law, but he can't interpret the law to say anything that it doesn't say. Only the courts can interpret what the language of a law means.

Your next sentence is correct: "The boundary is the law itself, as written." It is generally held that a law cannot be interpreted to mean something different than what it says.

I also agree with this statement:

IF you or I disagree and believe the regulation exceeds the law, (or the agencies lawful authority to create or alter the regulation) isn't the proper course of action to petition the court(s) for a ruling, or ask Congress to directly intervene?

And this is what I expect will happen -- various people and groups will petition the courts to declare the new rule unconstitutional because the new rule presumes to "interpret" the statutory definition of "rifle" to say more than the statutory definition actually says. If we have multiple lawsuits about this, my bet is that we'll get a circuit split on the issue.

 

[zukiphile]

In this particular, I think you are focused on a tree, and not the forest, or even other trees in it.

I don't disagree with you on that. To shift the metaphor slightly, I'd say I'm focused on a specific brick in a wall of regulation and how changing it changes the bricks that sit atop it.

EVERY firearm has a feature that ALLOWS it to be fired from the shoulder. Its the back end of the gun. It may not be practical, it may not be comfortable, it may not be safe, but it is physically possible.

This is where design intent matters. Pull the stock off your rifle, you can still put it to your shoulder and fire it. Its going to bite you, but you CAN do it. The physical construction of the rifle ALLOWS it. Obviously its not designed for that to be the method of use, but the design allows it.

Agreed without reservation.

I
SO, determining applicable regulation must include design intent as a factor.

I agree that design must be included along with a weapon being made (or remade) and intended to fire from the shoulder. I come to that conclusion based on the language of the US code defining what a rifle is.

That isn't what the reg does. The agency materials are explicit on this inasmuch as they assert that they amend the definition.

Regulatory agencies have a degree of latitude writing and interpreting regulations in order to enforce the law. The boundary is the law itself, as written.

I again agree without reservation.

This is necessary as laws in general rarely cover every possible specific situation.

I agree that this is the accepted reasoning behind delegation of a power to promulgate quasi-legislative regulation to executive agencies and that idea is in no danger of being changed by my reservations about its wisdom. I do wonder if we might be in a better place now if the actual legislature were required to vote for a law before it becomes a law by which we are governed rather than pawning the task off on agency staff. However, that's beyond the scope of the current issue.

A similar question arises where we give executive agencies quasi-judicial functions. Why? Don't we have courts?

IF you or I disagree and believe the regulation exceeds the law, (or the agencies lawful authority to create or alter the regulation) isn't the proper course of action to petition the court(s) for a ruling, or ask Congress to directly intervene?

Yes.

It may be a nuance of "legalese" that escapes me, but I don't see where or how a change in the interpretation of an agency regulation changes the law.

The regulation is not merely an interpretive aid. It is binding; you and I are governed by it, just as we are governed by regs that empower the EPA to stop construction of a home because the lot shows signs that it is sometimes wet or if you were a landlord a couple of years ago you weren't supposed to be able to evict a tenant.

The reg can't logically amend US code, but it purports to redefine a statutorily defined term, rifle.

 

[HiBC]

The decision some time back was "Yes,a a PISTOL can be made on an AR-15 platform."

I personally do not have the disability that a brace accomodates. I do not need,want,or have a brace.I leave it for those with a disability.

I've studied the 2017 open Letter,guidelines,etc. When I began this project the 2017 letter was the most current info available. Obviously,I did not have Jan 2023 rules.
The ATF has recognized a buffer tube is an essential ,functional part of an AR pistol. A smooth,pistol length buffer tube with no attachments IMO,should not be any part of design,redesign...etc to make a SBR.

In the 2017 letter,it did clearly state that a cheek piece may be attached to the buffer tube so long as it did not provide Shoulder surface area or a shoulder stock? Rear most surface of my buffer tube is smooth buffer tube with a hole for a sling QD in the center. I think this Cheek piece" is directed at the foam sleeves that show exposed buffer tube at the rear. Clearly,the BATF had no objection to the cheek on the buffer tube.

The 2017 letter said "How the gun or parts are incidentally used does not redesign the part" Those are ATF words.
I have GI type iron sights . Not the handle, but the removable type. Peep rear,post front. Is that sight ATF legal?? Is that poking the bear? I call it basic,minimalist.
Can I lawfully rest my cheek on the buffer tube to look through the sights? The 2017 letter says I can so long as I do not shoulder the gun..and BTW, "Incidental" shoulder contact is allowed AS STATED in the 2017 letter. (It does not redesign the gun)

My naked pistol buffer does not "Poke the bear". I've never made or posted a video.

So,there IS a pistol buffer tube available that is extra short,maybe 4 inches. It has a unique spring and buffer. Its too short to put against my shoulder if the charging handle is in contact with my upper lip. Designed,redesigned,modified to COMPLY!! It wont work to put the buffer tube to my shoulder. The "LOP" (sic) might be 6 in or so,

If that will solve this BS I'll spend more money and get one. I don't really want to,but if that settles it,OK.

In good faith,I spent my money and built a firearm to COMPLY with the BATF rules. As I discovered questionable details,such as a Magpul AFG, I removed it to be squeaky clean legal. I even bought Colorado legal 15 round mags.

I do not aspire to have NFA items. I would not have started an NFA SBR project. I can lawfully have an AR Pistol. That FACT inspired the project. I just need,and have a right to,the law to be clearly defined enough that I CAN COMPLY and be LAWFUL.

Can I hold the pistol out 1 handed and shoot it? Yes! But not very well. While I practice shooting my Shield or my 1911 or my Ruger SBH one handed Yes, but I typically shoot two handed. I never shoot my 14 in bull barreled MOA Maximum pistol one handed unsupported, It has a 4X leupold scope Its a legal pistol and no,I don't have any shoulder stock.

I'd like the BATF to take a break from telling me what is NOT lawful and spec out a 10 in bbl AR pistol that would be 100% squeaky clean legal per Fed law .
Then I can build to make them happy with no desire to poke the bear.

 

[Aguila Blanca]

In the 2017 letter,it did clearly state that a cheek piece may be attached to the buffer tube so long as it did not provide Shoulder surface area or a shoulder stock? Rear most surface of my buffer tube is smooth buffer tube with a hole for a sling QD in the center. I think this is directed at the foam sleeves that show exposed buffer tube at the rear.

The 2017 letter said "How the gun or parts are incidentally used does not redesign the part" Those are ATF words.
I have GI type iron sights . Not the handle, but the removable type. Peep rear,post front. Is that sight ATF legal?? Is that poking the bear? I call it basic,minimalist.
Can I lawfully rest my cheek on the buffer tube to look through the sights? The 2017 letter says I can so long as I do not shoulder the gun..and BTW, "Incidental" shoulder contact is allowed AS STATED in the 2017 letter. (It does not redesign the gun)

The new rule says that all previous determinations are now void. Page 269 of the new rule document:

All previous ATF classifications involving “stabilizing brace” attachments for firearms are superseded as of [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER]. As such, they are no longer valid or authoritative, and cannot be relied upon. However,firearms with such attachments may be submitted to ATF for reclassification.

 

[HiBC]

Alright,
What is to stop them from declaring every CMP Garand is unlawful? Or every rifle that exceeds 2300 fps because its "Too long Range"

If your house was built to electrical and plumbing and structural code in 2017,is it reasonable you would be required to remodel,or destroy,or forfeit your home within 120 days?

I'll say it again. Enough with the vague ban BS, Tell me I CAN use a commercial or mil spec pistol length buffer tube with no brace, Check! Tell me what sight I CAN use, Tell me what forend is OK.

Its not so different than telling me what rifles and scopes I can use in a CMP Sniper Match. "A Weaver k-2,5 is OK even though it was never a military scope
its just practical. OK.

Nearly every competition gun is built to a formula of what specs are acceptable and any agency that cannot serve the Citizen by providing a definition of what s lawful is not competent to make regulations and should have no power to do so. 2015 was 8 years ago,and 2017 was 5 years ago. They have had time.
This is incompetence and abuse.

 

[zukiphile]

This is incompetence and abuse.

That's my working title for a civics textbook.

 

[44 AMP]

What is to stop them from declaring every CMP Garand is unlawful? Or every rifle that exceeds 2300 fps because its "Too long Range"

What stops them is that, at this time there is no law to base such a regulation on.

If your house was built to electrical and plumbing and structural code in 2017,is it reasonable you would be required to remodel,or destroy,or forfeit your home within 120 days?

There's more than a bit of difference between your house and a pistol. But I get the point, having lived it with my house. Built around 60 years ago, perhaps a bit more, pretty sure it met code back then, but in the early 2000s due to a family spat "someone" reported the sewage drainfield to the govt, and gee, guess what, it didn't meet current code. That was news to me...My options were, move, upgrade the system to meet code, or have the property condemned.

Cost me over $14,000 to meet current code, in order to keep living in the house I had lived in for the previous 30 years....is that fair? no, I don't think so, but it is, sadly, the law.

 

[JohnKSa]

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

That's just it. It's not a new standard, it's eliminating the temporary glitch in enforcement that allowed shoulder stocks to be added to pistols because they were called something else. Now we're back where we were. No shoulder stocks on pistols, no matter what you want to call them.

The return to enforcement focuses on functionality which was the point of the original law.

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.

The rule makes it clear that true braces don't qualify as shoulder stocks and includes a ton of verbiage, examples and photos to explain how to tell what is a stock and what is a brace.

To explicitly address your concern--eliminating ambiguity is specifically what the rule is about. And they won't prosecute you for having one--there's an amnesty for people who are legitimately caught in a position they thought was legal but now is not.

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.

There is no burden imposed. Pistols equipped with "braces" that qualify as shoulder stocks can be registered at no cost during the amnesty period.

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.

Congress passed the law prohibiting shoulder stocks on pistols that are not registered under NFA and it has been the law of the land for nearly 90 years. The new rule helps clarify what makes a shoulder stock a shoulder stock based on functionality and in light of a new invention that wasn't present at the time that the law was originally passed.

What is to stop them from declaring every CMP Garand is unlawful? Or every rifle that exceeds 2300 fps because its "Too long Range"

There's no 89 year old law saying that CMP Garands are unlawful or regulating the muzzle velocity of rifles.

 

[zukiphile]

That's just it. It's not a new standard, it's eliminating the temporary glitch in enforcement that allowed shoulder stocks to be added to pistols because they were called something else. Now we're back where we were. No shoulder stocks on pistols, no matter what you want to call them.

The return to enforcement focuses on functionality which was the point of the original law.

On the one hand we understand that this one take on the matter. On the other hand, we have:

1. Not a mere glitch in enforcement, but different guidance from the agency itself,
2. Agency announcement of a new reg that wouldn't have a purpose if they weren't rolling out a new standard, and
3. Agency admission that the new standard involves their amendment of a definition found in the governing statute.

None of those points are contested.

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.

The rule makes it clear that true braces don't qualify as shoulder stocks and includes a ton of verbiage, examples and photos to explain how to tell what is a stock and what is a brace.

To explicitly address your concern--eliminating ambiguity is specifically what the rule is about.

Then the reg fails in two separate but important ways.

First, Agency statement of a position that differs from the prior two agency opinions doesn't eliminate ambiguity. It demonstrates the ambiguity. Second, where a criminal defendant is due the benefits of ambiguity, the government isn't entitled to declare the ambiguity non-existent. We've already the evidence of different government interpretations of the very same code section.

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.

There is no burden imposed. Pistols equipped with "braces" that qualify as shoulder stocks can be registered at no cost during the amnesty period.

One must provide fingerprint cards, and images, and insure that they get to the agency. In addition to the costs involved, there is the additional burden of having to apply to the government in order to obtain stamp for the item. It may be that one must prove with documents that he possessed an untaxed SBR on or before 1.13.23. That may be undue for an item "in common use".

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.

Congress passed the law prohibiting shoulder stocks on pistols that are not registered under NFA and it has been the law of the land for nearly 90 years. The new rule helps clarify what makes a shoulder stock a shoulder stock based on functionality and in light of a new invention that wasn't present at the time that the law was originally passed.

If the legislation and existing regs were too vague, there may well be an enforceability problem. Construing vague laws in favor of the state shouldn't be our first reflex. At least we can agree that it's a new rule.

And they won't prosecute you for having one--there's an amnesty for people who are legitimately caught in a position they thought was legal but now is not.

I do hope you turn out to have been correct, but I don't have a high resolution crystal ball, and I have limited trust in the assurances of government agents on which I am not entitled to rely.

 

[HiBC]

One more time. I don't have a shoulder stock. I don't have a brace. I have a featureless pistol length buffer tube.

I'm trying very hard to comply with the law. I do not want to poke the bear.
I also do not want to have an NFA item,registered or not.

I just want to have the legitimate AR pistol the law allows me to have.

So for purpose of THIS discussion, Lets not talk about braces or shoulder stocks

that have been unlawful for 90 years. Those are red herring .

I have a 10 in 300 blk barrel. I have the military standard iron sights for a flat top. I have a naked pistol buffer tube. Midwast Indusries top rail forend. No foregrip. No AFG. I'd like to have a small "landmark" handstop,but I can give that up, I left space on the top rail l for a light/laser.

I have Colorado compliant 15 round magazines. I have an AR Stoner Linear Comp. As an option I have a SIG Romeo non-magnified red dot.Its not installed. Timney single stage trigger.

IMO, its a squeaky clean legal AR pistol, built to be compliant.

What I want is "The Goal Posts" from the ATF that it IS a legal AR pistol I can lawfully posess.

 

[JohnKSa]

I have a featureless pistol length buffer tube.

Then you don't have a problem.

None of those points are contested.

Saying that doesn't make it so.

1. Read the rule. An attempt is made to show that the guidance has been consistent overall but that confusion arose from the fact that conclusions were drawn from different guidance letters provided based on analysis of DIFFERENT designs but that were taken to be overarching guidance that applied to all braces everywhere.

2. A new invention, intended to blur the line between a stock and a rearward attachment that might or might not be a stock / be used as a stock resulted in a lot of confusion. Clarification was required and now it's been provided.

3. Look at the rule overall. From a practical standpoint, it doesn't change anything compared to where we were a few years ago. Shoulder stocks are still illegal on pistols without NFA registration. The difference now is that there is this new thing called a stabilizing brace that is legal on pistols without NFA registration if, based on intended function, it doesn't meet the definition of a shoulder stock.

That's all been stated before on this thread, but now it's all in one place. So we can dispense with the idea of uncontested assertions except as an attempt to argue by volume/repetition.

First, Agency statement of a position that differs from the prior two agency opinions doesn't eliminate ambiguity. It demonstrates the ambiguity.

Nonsense. This pretends that once ambiguity exists it can't ever be eliminated by further clarification. Obviously that's incorrect, and this situation is just one of a myriad that demonstrates it.

Besides, showing variance between this rule and the earlier opinions can serve no purpose other than to invalidate the previous two opinions UNLESS it can also be shown that the current rule is inconsistent with the NFA.

One must provide fingerprint cards, and images, and insure that they get to the agency. In addition to the costs involved, there is the additional burden of having to apply to the government in order to obtain stamp for the item. It may be that one must prove with documents that he possessed an untaxed SBR on or before 1.13.23. That may be undue for an item "in common use".

SCOTUS has repeatedly passed on opportunities to address registration regulations, issues and complications as long as they don't constitute a barrier to ownership. I mean, someone could make the argument in court that paperwork and documentation is a burden, but I wouldn't expect it to be successful, and, I think, neither would anyone else who really looks at it objectively. If a person found themselves in that situation, they might as well try to argue the point, but it's not something to bet the farm on, by any means.

At least we can agree that it's a new rule.

Semantics. It's new and it's a rule, but it very clearly doesn't change anything at all about the legality of shoulderstocks, pistols or rifles compared to where we were before stabilizing braces came along.

Providing a counterexample to this assertion (as opposed to handwaving) would be the proper response if you wish to contest it. It should be easy if the contention that this new rule changes things is correct.

The issue is whether or not the rule is consistent with the NFA. Demonstrating that it is inconsistent with previous opinion letters might invalidate the opinion letters, but it won't touch the validity of the rule and only obfuscates things. To prove the rule has problems, it will be necessary to conclusively show that the rule disagrees with the NFA.

I have limited trust in the assurances of government agents on which I am not entitled to rely.

Just as a person can be sued for anything, a person can be prosecuted for anything. I would expect that, just as a person being sued when a law offers protection against such, a person being prosecuted when the law offers protection against such would be able to successfully use that fact in their defense.

 

[zeke]

One more time. I don't have a shoulder stock. I don't have a brace. I have a featureless pistol length buffer tube.

I'm trying very hard to comply with the law. I do not want to poke the bear.
I also do not want to have an NFA item,registered or not.

I just want to have the legitimate AR pistol the law allows me to have.

So for purpose of THIS discussion, Lets not talk about braces or shoulder stocks

that have been unlawful for 90 years. Those are red herring .

I have a 10 in 300 blk barrel. I have the military standard iron sights for a flat top. I have a naked pistol buffer tube. Midwast Indusries top rail forend. No foregrip. No AFG. I'd like to have a small "landmark" handstop,but I can give that up, I left space on the top rail l for a light/laser.

I have Colorado compliant 15 round magazines. I have an AR Stoner Linear Comp. As an option I have a SIG Romeo non-magnified red dot.Its not installed. Timney single stage trigger.

IMO, its a squeaky clean legal AR pistol, built to be compliant.

What I want is "The Goal Posts" from the ATF that it IS a legal AR pistol I can lawfully posess.

Because of the ambiguity of the "five factors" and undefined area available to shoulder, would not make an assumption a naked buffer tube and short barreled AR-style platform will be legal with out NFA authorization.

The ruling appears to make a distinction between AR-style platforms and pistol caliber PCC style platforms by looking at the differing categories they divided the visual samples into.

While the other concerns may not affect you, some would consider the real problem with the ruling is changing the definitions without going through congress.

Currently i would agree with you it is "squeaky clean", but the new ruling doesn't appear to be published yet.

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

One might think the current administration would want this published as soon as possible for their own political benefit. As opposed to sliding an announcement out very late in the week.

Remembering the "rule" is only ten pages long. It begins around pp 268. Time will tell which of the various arguments in this thread actually hold any water.

 

[zukiphile]

First, Agency statement of a position that differs from the prior two agency opinions doesn't eliminate ambiguity. It demonstrates the ambiguity.

Nonsense. This pretends that once ambiguity exists it can't ever be eliminated by further clarification. Obviously that's incorrect, and this situation is just one of a myriad that demonstrates it.

It doesn't pretend it. Perhaps you now see the tautological character of claiming this reg is the example that proves the viability of this reg.

Where an agency interprets a single and unchanging body of the US code to mean that 1) an accessory can't change a weapon's classification under the NFA, 2) how a weapon is held constitutes a re-design of a weapon so as to alter its classification under the NFA, 3) how a weapon is held may constitute redesign, and 4) whether the weapon is a rifle is determined by extra statutory regs, the agency demonstrates its difficulty in understanding the US code and admits that in is reasonably understood in substantially different ways.

Unless the agency's access to a time machine permits it to treat its own interpretive history like a dry erase board, those other interpretions still exist as evidence of the ambiguity even where the agency decides to move on to another position.

Providing a counterexample to this assertion (as opposed to handwaving) would be the proper response if you wish to contest it. It should be easy if the contention that this new rule changes things is correct.

Pretending? Handwaving?

If you are having difficulty with any of the explanations in this thread, there would be greater courtesy in withholding attribution of pretense and improper responses.

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.

As 44 AMP has already noted,

EVERY firearm has a feature that ALLOWS it to be fired from the shoulder. Its the back end of the gun.

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.

Just as a person can be sued for anything, a person can be prosecuted for anything. I would expect that, just as a person being sued when a law offers protection against such, a person being prosecuted when the law offers protection against such would be able to successfully use that fact in their defense.

Emphasis added.

That's a significant assumption. Not having to wait to see if one can mount a successful defense against federal prosecution would be the benefit of denying this sort of wide discretion to a federal agency.

 

[Aguila Blanca]

None of those points are contested.

Saying that doesn't make it so.

1. Read the rule. An attempt is made to show that the guidance has been consistent overall but that confusion arose from the fact that conclusions were drawn from different guidance letters provided based on analysis of DIFFERENT designs but that were taken to be overarching guidance that applied to all braces everywhere.

I respectfully submit that if the previous guidance had been consistent, the new rule would not have stated that all previous letters of determination are now cancelled and invalid.

Page 269:

All previous ATF classifications involving “stabilizing brace” attachments for firearms are superseded as of [INSERT DATE OF PUBLICATION IN THE FEDERAL REGISTER]. As such, they are no longer valid or authoritative, and cannot be relied upon. However,firearms with such attachments may be submitted to ATF for reclassification.

 

[44 AMP]

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....

I emphatically disagree.

This statement flatly declares "any weapon that "provides surface area that allows the weapon to be fired from the shoulder" is a rifle".

And that, is certainly not true. As I have pointed out, every firearm has a surface area which allows the weapon to be fired from the shoulder.

You could, for example put a .44 magnum revolver (or any stockless, braceless handgun) against your shoulder and pull the trigger. It will "go bang"! Congratulations, you have just fired the weapon from your shoulder.

Will you like it? I doubt it. Will it hurt you? very likely. But it CAN BE DONE.

This does NOT make the pistol a rifle, even under the ATF's rules. If you want to play the literal definition game, the LAW as written says "allows firing" which means it can physically be done. SO everything with a rifled barrel NO MATTER WHAT OTHER FEATURES IT HAS OR DOESN'T HAVE is a "Rifle" under the law. That literal interpretation is not what we use, nor, should it be.

Since this is obviously the case, your argument is moot.
Just as the argument that the "expanded" ATF ruling makes something a rifle. IT does not. It is a listing of the factor they are going to look at in order to make the determination if a specific firearm is, or is not legally a rifle. It does not give any explanation of how much weight the different factors will carry in making that determination, only what the factors are.

It does not change the legal classification of anything directly. Separate rulings on the status of individual firearm configurations will determine that.

Right or wrong this is the established process and has been in use regarding NFA items since the NFA was passed.

Put another way, a braced pistol (AR or otherwise) is not automatically an NFA item under the new ruling. It MIGHT BE, IF the brace meets their definition of a stock (using the new listed factors as part of the determination) then it is an NFA item. If it doesn't, then, its not, and is only a pistol, with a brace.

I respectfully submit that if the previous guidance had been consistent, the new rule would not have stated that all previous letters of determination are now cancelled and invalid.

Consistency or inconsistency often doesn't matter, it is a common practice to have new rules render all previous rules invalid. We do it with all kinds of things quite often.

If you're taking things literally, then every new rule is evidence of inconsistency, if it differs in any way from previous rules. And, if it doesn't, why make a new rule???

Always remember that the letter of the law and the intent of the law are not always 100% identical, and focusing on one, without consideration of the other is generally a fallacy.

Which one should take precedence? That should be a matter of common sense, but when it is in dispute, we rely on court rulings. This can be yet another can of worms, but that's our system, and under our system it is the Supreme Court that has the final say on any case it hears.

 

[zukiphile]

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....

I emphatically disagree.

This statement flatly declares "any weapon that "provides surface area that allows the weapon to be fired from the shoulder" is a rifle".

I invite expression of disagreement happily, but it should be for what I wrote.

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.

The bolded part is a necessary element of the summary.

And that, is certainly not true. As I have pointed out, every firearm has a surface area which allows the weapon to be fired from the shoulder.

You could, for example put a .44 magnum revolver (or any stockless, braceless handgun) against your shoulder and pull the trigger. It will "go bang"! Congratulations, you have just fired the weapon from your shoulder.

Will you like it? I doubt it. Will it hurt you? very likely. But it CAN BE DONE.

This does NOT make the pistol a rifle, even under the ATF's rules. If you want to play the literal definition game, the LAW as written says "allows firing" which means it can physically be done. SO everything with a rifled barrel NO MATTER WHAT OTHER FEATURES IT HAS OR DOESN'T HAVE is a "Rifle" under the law. That literal interpretation is not what we use, nor, should it be.

That a reg is so obviously false that no one with sense would believe it may not be a persuasive defense of the reg.


I see significant overlap in our positions about the plausibility of the reg as written. If the best things to be said in support of a regulation is that it didn't really mean that previous determinations are invalid when it asserts that, it doesn't really mean that it amends the definition of rifle when it asserts that, and it clearly can't mean anything as silly as what it actually says, then there just might be some problems with it.

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

 

[JohnKSa]

Perhaps you now see the tautological character of claiming this reg is the example that proves the viability of this reg.

The contention that once the need for clarification is obvious, it can't be provided doesn't make sense. Ambiguity calls for clarification, it doesn't eliminate the possibility of providing it.

Where an agency interprets a single and unchanging body of the US code to mean that 1) an accessory can't change a weapon's classification under the NFA, 2) how a weapon is held constitutes a re-design of a weapon so as to alter its classification under the NFA, 3) how a weapon is held may constitute redesign, and 4) whether the weapon is a rifle is determined by extra statutory regs, the agency demonstrates its difficulty in understanding the US code and admits that in is reasonably understood in substantially different ways.

If you read the document, your summation is not consistent with their explanation. They make the point that they issued opinions about specific instances of stabilizing braces that were then interpreted as if they applied to all braces anywhere, regardless of design or features.

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.

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.

That is a complicated way to say that surface area allowing the weapon to be fired from the shoulder is only ONE factor that is considered in the determination.

Where HiBC's squeaky clean pistol is now a rifle...

It is not a rifle and nothing in the rule could reasonably be construed to arrive at such a determination.

I respectfully submit that if the previous guidance had been consistent, the new rule would not have stated that all previous letters of determination are now cancelled and invalid.

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. They explain why they made the rulings that they made, and how they are consistent with the NFA. Obviously that doesn't eliminate the confusion created by taking the letters out of context and the need for clarification still exists. It's now been provided in detail with a lot of added examples, photos and explanation.

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", 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.

If we start before the first stabilizing brace existed and compare that situation to where we are after the rule, we can see that almost nothing has changed from a practical standpoint. Things that were legal before are legal now, things that required registration still require registration.

The one change is that now there is a new category of rearward attachments that may be legally attached to pistols without having to register them if the resulting firearm doesn't qualify as a rifle. The rule is required to clarify things, not because it's a new law but because stabilizing braces didn't exist when the law was written. Stocks are still stocks, just like they always have been, but since someone came up with this new category of rearward attachment in what could reasonably be described as an attempt to blur the concept of what constitutes a stock, now it has become necessary to provide more information/clarification.

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.

First of all, those opinion letters didn't change the NFA, so using them as a "control" for comparison doesn't really work.

Second, everyone agrees that the letters caused confusion. Some because they claim they were contradictory, some because they claim the contents were misinterpreted/overgeneralized. 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.