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Old January 16, 2023, 11:51 PM   #151
JohnKSa
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Quote:
Originally Posted by zeke
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.
Quote:
Originally Posted by zeke
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.
Quote:
Originally Posted by zukiphile
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.
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Old January 17, 2023, 07:17 AM   #152
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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.
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Old January 17, 2023, 09:00 AM   #153
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Quote:
Originally Posted by 44 AMP
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:

Quote:
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:

Quote:
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.

Last edited by zukiphile; January 17, 2023 at 09:40 AM.
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Old January 17, 2023, 09:11 AM   #154
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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.
Quote:
Originally Posted by zukiphile View Post
....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?

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Old January 17, 2023, 11:17 AM   #155
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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.
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Old January 17, 2023, 12:33 PM   #156
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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.
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Old January 17, 2023, 01:17 PM   #157
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Quote:
Originally Posted by Spats McGee View Post
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.
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Old January 17, 2023, 01:42 PM   #158
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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.
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Old January 17, 2023, 01:45 PM   #159
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edited to remove incorrect info

Last edited by zeke; January 17, 2023 at 02:49 PM.
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Old January 17, 2023, 01:56 PM   #160
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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.

Quote:
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.

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Old January 17, 2023, 02:13 PM   #161
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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.
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Old January 17, 2023, 02:42 PM   #162
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Quote:
Originally Posted by zukiphile View Post
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
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Old January 17, 2023, 02:59 PM   #163
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Quote:
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.

Quote:
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.
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Old January 17, 2023, 03:19 PM   #164
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Quote:
Originally Posted by 44 AMP
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:

Quote:
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.
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Old January 17, 2023, 03:43 PM   #165
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Quote:
Originally Posted by 44 AMP
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.

Quote:
Originally Posted by 44 AMP
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.

Quote:
Originally Posted by 44 AMP
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.

Quote:
Originally Posted by 44 AMP
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.

Quote:
Originally Posted by 44 AMP
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?

Quote:
Originally Posted by 44 AMP
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.

Quote:
Originally Posted by 44 AMP
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.

Last edited by zukiphile; January 17, 2023 at 04:08 PM.
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Old January 17, 2023, 05:36 PM   #166
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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.

Last edited by HiBC; January 17, 2023 at 05:44 PM.
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Old January 17, 2023, 05:43 PM   #167
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Quote:
Originally Posted by HiBC
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:

Quote:
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.
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Old January 17, 2023, 06:09 PM   #168
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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.
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Old January 17, 2023, 06:53 PM   #169
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Quote:
Originally Posted by HiBC
This is incompetence and abuse.
That's my working title for a civics textbook.
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Old January 17, 2023, 10:50 PM   #170
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Quote:
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.

Quote:
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.
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Old January 18, 2023, 12:25 AM   #171
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Quote:
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.
Quote:
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.
Quote:
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.
Quote:
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.
Quote:
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.
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Old January 18, 2023, 09:36 AM   #172
zukiphile
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Quote:
Originally Posted by JohnKsa
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.

Quote:
Originally Posted by JohnKsa
Quote:
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.

Quote:
Originally Posted by JohnKsa
Quote:
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".

Quote:
Originally Posted by JohnKsa
Quote:
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.

Quote:
Originally Posted by JohnKSa
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.
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Old January 18, 2023, 10:04 AM   #173
HiBC
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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.
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Old January 18, 2023, 10:30 AM   #174
JohnKSa
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Quote:
I have a featureless pistol length buffer tube.
Then you don't have a problem.
Quote:
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.
Quote:
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.
Quote:
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.
Quote:
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.
Quote:
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.
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Old January 18, 2023, 10:35 AM   #175
zeke
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Join Date: November 17, 1999
Location: NW Wi
Posts: 1,695
Quote:
Originally Posted by HiBC View Post
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/agen...reau#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.
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