ATF and pistol braces ?

[dogtown tom]

Bill DeShivs So here's an interesting question-
During the "amnesty" period, can rifles or shotguns be registered as NFA items for no fee?

No, only those pistols with an arm brace that are determined to be an SBR.

There are countless rifles made from receivers that were neither rifle or pistol as sold.

If the receiver was first assembled as a rifle, its always a rifle.
If the receiver was first assembled as a pistol it may be reconfigured as a rifle and subsequently reconfigured as a pistol.

Also, pistol gripped shotguns could also fall in this category.

This new ATF regulation applies only to handguns with an arm brace that will be considered SBR's after publication.

[zukiphile]

Originally Posted by Bill DeShivs

During the "amnesty" period,...

Thank you for those quotation marks.

The term used in the agency literature is enforcement discretion.

[jrinne0430]

Here is a quote fro BATF's FAQ site on their brace ban rule.
" No, a “stabilizing brace” is an accessory and ATF does not regulate accessories. However, a firearm equipped with a “stabilizing brace” may be subject to registration if it is an SBR because it is “designed, redesigned, made or remade, and intended to be fired from the shoulder,” as described by the amended definition of “rifle” in the Code of Federal Regulations and has a barrel(s) of less than 16 inches or an overall length of less than 26 inches."
BATF FAQs

So, I would assume as mentioned by other earlier, this is where they would use the old "constructive possession" for possessing the brace?

[Aguila Blanca]

Originally Posted by jrinne0340

So, I would assume as mentioned by other earlier, this is where they would use the old "constructive possession" for possessing the brace?

I think it's perhaps more accurate to sa this is where they "could" use the old constructive possession for possessing a brace.

And that's the problem -- we don't know what they're going to do.

[Tom Servo]

During the "amnesty" period, can rifles or shotguns be registered as NFA items for no fee?

No, it's just for the braces.

Looking at this, it's going to be a mess. The amnesty is for 120 days from the publishing date. But look how long it takes them to process the forms right now. There are at least 4 million of these braces in circulation. They're not going to be able to register all of them in time, and the NFRTR is going to be a chaotic mess.

It doesn't help that the form itself is going to be confusing to people, and a LOT of those applications are going to get rejected.

[zeke]

Am reading on various places where individuals are already using the the new application process for braces, even before the rule is published. Am wondering what would happen if atf is forced to modify the rule before it gets published?

[Sharkbite]

It doesn't help that the form itself is going to be confusing to people, and a LOT of those applications are going to get rejected

Tom, i dont think the form you linked is used under the “final rule” as it was released monday

[Aguila Blanca]

Originally Posted by Sharkbite

Tom, i dont think the form you linked is used under the “final rule” as it was released monday

Correct. The final rule does NOT use the formerly-proposed Form 4999. It says that right in the final rule (somewhere in the 300+/- pages).

[44 AMP]

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

AH, I had not realized that. Pardon me for thinking in common sense terms, I should have known better where Federal law is concerned....

I always understood the rule about the receiver/frame (serial# part) being legally the "firearm" because without it you cannot build a functional firearm. Did not realize that what I always considered an "accessory part/assembly" that could not fire a round was, all on its own a firearm under Federal law.

The inventiveness of our laws never ceases to amaze me....

[Aguila Blanca]

Where the new rules are going to bite a lot of people is the fact that "Other" doesn't just mean a frame or a receiver that has not yet been assembled into a handgun or a rifle. "Other" refers to any firearm that is not a pistol or a rifle, and that's what Stag Arms and other makers of AR-15s have been selling: complete, functional firearms that by virtue of having a "brace" rather than a "shoulder stock" and a vertical grip handle attached to the fore end, manage to fall into that gray area between handgun and rifle. And that, I believe, is what the BATFE is really after with this new rule.

[Nathan]

So, what is the enforcement strategy? I mean, they know where 90% are at by credit card records…..

Also, who is making the legal effort right now to block?

[JohnKSa]

An administrative regulation that exists under a statute cannot change any definitions that are codified in the parent statute -- and that's part of the problem with this new rule. It DOES change the definition. But it has no legal authority to do so.

It only changes the definition if there's a practical legal result. If there's no practical legal result compared to the legislation then there's no change, it's just an amplification/clarification.

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

That's not what I said. You implied that his pistol was an SBR because you assert that it's not possible to show that it's legal using the rule. Even if that assertion is correct, that's the wrong way to go about using the law. Things aren't legal because the law declares them to be legal, they are legal because the law doesn't make them illegal.

To show that a pistol is an SBR, then, it is necessary to use the law to show that it is illegal. Trying to work things the opposite way is a path to confusion.

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

Hah! A good comeback. I like it.

That said, what I think is that it's possible to get into an interminable state of paralysis by analysis, either by intent or otherwise and end up badly confused and confusing others if the focus is lost.

If the claim is that this rule expands the law, then it must be possible to come up with examples of things that are illegal under this rule that were not illegal under the NFA. If that is not possible, then all the "unpacking" and analysis in the world can't prove that the law has been expanded.

[Aguila Blanca]

Originally Posted by JohnKSa

If the claim is that this rule expands the law, then it must be possible to come up with examples of things that are illegal under this rule that were not illegal under the NFA.

This, maybe?

https://www.stagarms.com/products/st...g15002411.html

[stagpanther]

Quote:
Originally Posted by JohnKSa
If the claim is that this rule expands the law, then it must be possible to come up with examples of things that are illegal under this rule that were not illegal under the NFA.
This, maybe?

https://www.stagarms.com/products/st...g15002411.html
__________________

Part of the way through that video they say it's illegal to remove the forward vertical hand grip under the "other." "Other" designation to me has always been any stripped AR lower receiver that I've ever bought, which generally are stamped "multical" because they were not assembled in a complete rifle to a dedicated cartridge.

Even though my pistols have always had bare buffer tubes--though I did try out that ridiculous $250 rubber ducky thing when it was first introduced--I guess the best thing is just convert everything to a rifle (all my AR pistols started life as a pistol--though there's a bit of a catch 22 here--if you retain eveidence that the receiver was originally used for a pistol--then how can you keep the evidence without running afoul of "constructive intent" ?!)

[JohnKSa]

This, maybe?

Just looking at the picture and evaluating it based purely on the NFA--as if the now-invalidated opinion letters and the universally deplored situation that resulted had never happened--it has a collapsible stock (albeit one with some unusual features), a vertical foregrip and a barrel under 16", a combination of features which would make it an NFA regulated item.

[zukiphile]

Originally Posted by JohnKSa

It only changes the definition if there's a practical legal result.

That is incorrect. The agency concedes that it has amended the definition. See posts 112 and 153.

Originally Posted by JohnKSa

If the law doesn't make something illegal/regulated then it is not illegal/regulated. Pretty basic stuff and the foundation of our legal system. You can argue about wording and definitions until the cows come home but the bottom line is that if you (or the government) claim the pistol is an SBR, then the onus is on you (or the government) to show, using the statutes, how that is true.

That's not what I said. You implied that his pistol was an SBR because you assert that it's not possible to show that it's legal using the rule. Even if that assertion is correct, that's the wrong way to go about using the law. Things aren't legal because the law declares them to be legal, they are legal because the law doesn't make them illegal.

Emphasis added. This what you wrote.

You have drawn an incorrect inference. I did not imply that his pistol was an SBR because it is not possible to show that it is legal using the rule.

Originally Posted by me at 176

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.

This means that leaving initial determinations of compliance with the new rule to the discretion of government examiners leaves possessors and potential defendants poorly positioned to contest the result of the examiner’s discretion.

Your "bottom line" about the presumption afforded a criminal defendant isn't a comment on the structure of the rule.

Originally Posted by Aguila Blanca

This, maybe?

The issue isn't whether it is illegal. It's whether the new rule can describe a weapon that previously was not regulated under the NFA.

The item that indisputably meets that standard that it was not an NFA regulated weapon under the NFA and now may be is a scoped pistol with the original sig brace. It was a weapon not designed, made or intended to be fired from the shoulder. No one needs to wonder whether it was “designed or intended to fire a weapon from shoulder” because the agency found that it wasn’t more than a decade ago. Accordingly, it was legal to possess.

Such a pistol would have a “surface area” that “allows” shouldering. Under the terms of the new rule, it is a matter of agency discretion whether it is a rifle, so anything within that discretion can be a rifle. Those two characteristics shunt the weapon agency evaluation.

Can anyone find a rifle of weight or length “consistent” this weapon’s length? Clearly, that is not a length or weight by which any possessor can determine whether his weapon is subject to NFA classification, because it is not a length or weight.

Can anyone find a rifle with a length of pull “consistent” with this length of pull? Since that is not a length of pull distance, finding something “consistent” will pose no obstacle to an examiner’s discretion and is not a reasonable metric by which any possessor can determine whether his weapon is subject to NFA classification.

The weapon has a scope with high relief. Since the agency provides no specific high relief that would drive NFA classification, this will be a matter of examiner discretion.

The additional surface area that allows the weapon to be fired from shoulder is created by something other than the buffer tube; the brace is not necessary for the cycle of operation.

Does the agency possess any information by which it could find that people other than the possessor are using the weapon in a manner the examiner disfavors? Does this change over time so that a possessor might think in March that he possesses a weapon not subject to the NFA, but in June he possesses an untaxed short barrel rifle?


Significantly, any single one of these exercises of agency discretion can be the basis of an agency determination under the new rule. For instance, if the weapon has a scope, that alone can classify it as a rifle under the regulation, but not the NFA.

[stagpanther]

In other words, when is an SBR not an SBR--but really is an SBR.

I'm beginning to see why this is somewhat perplexing.

[zeke]

Originally Posted by stagpanther

In other words, when is an SBR not an SBR--but really is an SBR.

I'm beginning to see why this is somewhat perplexing.

Not to worry, ya can just send your firearm to them to be classified.

[HKGuns]

When did an Agency “Rule” become law?

When did we elect the ATF to govern?

Unconstitutional from nearly any angle.

[zukiphile]

Originally Posted by stagpanther

I'm beginning to see why this is somewhat perplexing.

Ideally, laws don't perplex anyone, and we do have doctrine that will void laws that are too vague.

The problem may be easier to understand by analogy to speed limit signs.

A road has a 35mph speed limit sign. Most people will understand that going 42mph exposes them to a criminal penalty, a ticket. But what if the local traffic code reads. "A vehicle shall not travel at a speed greater than 35mph" but is amended to include "A vehicle may be deemed to travel at a speed greater than 35mph if it allows a driving position in which one may speed and
-its weight or color is consistent with car that sped
-it has racing stripes not required for operation
-vehicle marketing suggests that the vehicle can speed
-other people with a car like that are likely to speed."

You might be alarmed by this odd amendment. Your police chief is well known for writing bad tickets and you think if he went to the effort of redefining the speed limit, he did it for a reason other than the previous speed limit.

Reminds me of the Steven Wright joke. He was yelled at by a highway Patrolman who advised that the speed limit is 55 miles an hour. He protested that he wasn't going to be driving that long.

[44 AMP]

The problem may be easier to understand by analogy to speed limit signs.

Along with the ridiculous that you included, you left something out of your analogy.

You CAN get a ticket, at ANY speed, if the issuing officer believes your speed is excessive for existing conditions. And, if contested and the judge agrees with the issuing officer you ARE paying the fine (and, perhaps court costs).

So, if you've got something you call a brace, and the maker calls it a brace, but the ATF says its a stock, and stock rules apply, then you go to court. The judge (and jury if its a jury trial) listen to your arguments, your cites, and all the evidence you present, and then rule its a duck, because to them, it looks like a duck and it acts like a duck, so it IS a duck, and your arguments aren't all they're quacked up to be.

[JohnKSa]

That is incorrect. The agency concedes that it has amended the definition. See posts 112 and 153.

Whatever they say, if there's no practical legal result then the definition hasn't changed. Any basis for a challenge would depend on some kind of standing--if there's no practical change in legality then no one has been damaged, no one has standing and, clearly, the "amended definition" didn't change the law, it only clarified/amplified it.

I did not imply that his pistol was an SBR because it is not possible to show that it is legal using the rule.

If you don't believe his pistol is an SBR, then we agree that it is not. If you believe it is, then you would need to use the law to show how it fits the definition of an SBR.

Your "bottom line" about the presumption afforded a criminal defendant isn't a comment on the structure of the rule.

The law has to be used for something or it serves no purpose. If the government can't demonstrate that an action is illegal or an item is regulated/illegal then they can't move forward. That is the bottom line. They have to demonstrate how the pistol would fit the definition of SBR or it is not an SBR and isn't regulated as an SBR.

...leaves possessors and potential defendants poorly positioned to contest the result of the examiner’s discretion.

No more than with any other law. If the government claims that the pistol is an SBR because of X, Y, and Z, all the defendant need do is point out that X, Y, or Z does not apply to the pistol, or that X, Y, or Z is not a reasonable criteria for identifying an SBR.

No one needs to wonder whether it was “designed or intended to fire a weapon from shoulder” because the agency found that it wasn’t more than a decade ago.

This is where it gets humorous. You have attacked the validity/consistency/ambiguity of the opinions everywhich way possible but will use them to bolster your argument when it suits your purpose. Furthermore, the letters and the opinions in them have been invalidated so using them as a basis for argument is, at best, seriously problematic.

Besides, UNLESS those opinion letters changed the law, something you say the BATF is not allowed to do, then the NFA still applies and should be the only basis for evaluating the current rule. You can't argue that the rule expands the law compared to the now invalidated opinion letters because they have been invalidated and, more to the point, they were never law to begin with.

The problem may be easier to understand by analogy to speed limit signs.

Very good.

You CAN get a ticket, at ANY speed, if the issuing officer believes your speed is excessive for existing conditions.

Exactly correct. So is that law problematic because it depends on a confluence of circumstances rather than on a clearly delimited boundary? Of course not. Nor does it eliminate the ability to challenge/defend against such an accusation.

For instance, if the weapon has a scope, that alone can classify it as a rifle under the regulation, but not the NFA.

Absolutely incorrect. This kind of blatant mischaracterization of the law while you are in the midst of an argument that focuses heavily on semantics and specific wording makes me wonder about your motives.

Before any weapon can be classified as a rifle under the rule, it must have:

"...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's only the first step. Then it must have "other factors" as well.

One of those factors is a "scope with eye relief that require the weapon to be fired from the shoulder in order to be used as designed..."

So not just "a scope" "alone". Not even an accessory, component or other rearward attachment providing shouldering capability plus a scope. The scope must be one that is can only be used (due to eye relief limitations) if the gun is shouldered.

The two factors, a scope that is intended to be used when the gun is fired from the shoulder, plus provisions for shouldering the gun would certainly indicate that the firearm fits the definition of rifle under the NFA since the resulting firearm would certainly be "designed or redesigned, made or remade, and intended to be fired from the shoulder”.

[JohnKSa]

The agency concedes that it has amended the definition. See posts 112 and 153.

Ok, you keep saying this. There is a significant difference between federal law and the CFR. One is generated/amended by congress, one is maintained/generated/amended by various federal agencies.

This is why I keep saying that there is no legal change in definition (no change to the law) as long as the rule (regulatory material under the CFR) does not step outside the boundaries provided by the NFA (federal law).

If you read the rule, you (or anyone) will see that it is very careful to point out that the changes are made to the regulations, to the CFR. The BATF is not only allowed to change those regulations, they are responsible to do so when it they feel it to be necessary. Changes to those regulations are NOT changes to the law, although they do have to be consistent with the law.

Yes, they amended the regulatory definitions in the CFR. That is not a problem unless the rule goes beyond the boundaries of the NFA. That's why it's so important to judge the rule based on the NFA--that's the only standard that it needs to meet.

[zukiphile]

Originally Posted by 44 AMP

Along with the ridiculous that you included, you left something out of your analogy.

You CAN get a ticket, at ANY speed, if the issuing officer believes your speed is excessive for existing conditions. And, if contested and the judge agrees with the issuing officer you ARE paying the fine (and, perhaps court costs).

All of that is true, but since the analogy isn't presented for the purpose of setting forth how traffic tickets are adjudicated, a different infraction, i.e. excessive speed for conditions, isn't a part of the analogy. The analogy is explicitly about the effect of changing a definition with matters that reflect broad discretion.

[zeke]

Originally Posted by JohnKSa

Ok, you keep saying this. There is a significant difference between federal law and the CFR. One is generated/amended by congress, one is maintained/generated/amended by various federal agencies.

This is why I keep saying that there is no legal change in definition (no change to the law) as long as the rule (regulatory material under the CFR) does not step outside the boundaries provided by the NFA (federal law).

If you read the rule, you (or anyone) will see that it is very careful to point out that the changes are made to the regulations, to the CFR. The BATF is not only allowed to change those regulations, they are responsible to do so when it they feel it to be necessary. Changes to those regulations are NOT changes to the law, although they do have to be consistent with the law.

Yes, they amended the regulatory definitions in the CFR. That is not a problem unless the rule goes beyond the boundaries of the NFA. That's why it's so important to judge the rule based on the NFA--that's the only standard that it needs to meet.

I guess the question is then what is the current legal ATF definition of rifle vs the current NFA definition of rifle. If they are currently the same/similiar, and if the ATF's final rule changes the definition of rifle they use in the rule, they have stepped outside the boundaries of the NFA by changing the definition of rifle. They also are not consistent with the NFA, if using differing definitions.

Am more familiar with the changing of my states statutes, codes and guidances. As our DOJ specifically and repeatedly informed me directly, changing the definition used in a law, changes the law. And as our elected representatives repeatedly informed us, we needed their approval to do so.