SBR's, braces, and the ATF

[barnbwt]

"I'm more than 50% sure that the BATFE is going to try pretty hard to never allow a case to develop that really answers the knotty lexicographic questions or threatens to in any way put the validity of the NFA into question."

By which you mean that a church-going Eagle scout could probably get away with anything, but a mean-looking mug with a tattoo on his face will be trotted out to satisfy the court as to the "need" for such laws . It seems very few people get prosecuted for just NFA violations that aren't business related. For one, how else would the ATF know, and two, little fish generally aren't worth their time unless they are annoying. But I would rather we had a system that didn't mirror the Soviet's where everyone was guilty, but only sparingly prosecuted when convenient/necessary for those holding the reigns.

TCB

 

[HankB]

I'm more than 50% sure that the BATFE is going to try pretty hard to never allow a case to develop that really answers the knotty lexicographic questions or threatens to in any way put the validity of the NFA into question.

In the meantime, anyone with a legal pistol which has been legally fitted with a legal SIG brace, probably would be well advised to refrain from posting things like Facebook pictures or Youtube videos of themselves with the pistol shouldered.

 

[Sam1911]

Yeah. We're considering sending out a PSA to our club members asking them to refrain from doing this on the club's ranges, esp. since they'd be in view of the security cameras.

 

[barnbwt]

Query:

The ATF's determinations typically dictate local law enforcement classification of firearms, no? So does this mean the OCT crowd (or everyone else) in Texas can now legally open carry their insta-SBRs but only while intending them to be shouldered (or shouldered, in which case "do not try this")? The question is not whether the NFA or redundant state-level SBR law comes into play, but whether Texas carry law has been pushed around by the latest ATF issuance (with no prior consultation, consideration, representation, or coordination). That might be one more avenue for legal objection, from the State level (with it's deeper resources)

Also for consideration, is the Texas definition of a handgun;
""Handgun" means any firearm that is designed, made, or adapted to be fired with one hand." (better not do your OC protest with one hand on the grip and the barrel against your shoulder, nor supported with a sling )

I strongly suspect "designed" appears in practically all firearms classification law. If, as Sam argues, this extends the statute's applicability to the realm of thoughts and pure intentions, the ramifications would be enormous. Yet this has never been the interpretation for Lords knows how too-long we've suffered these laws. Even 'constructive intent' has always required some sort of tangible proof of intention (proximity, semi-completion, failed attempts), even in the most abusive/expansive examples available. I think such an interpretation is definitive of the so called "incredible result" that judges frequently dismiss cases or strike down laws over ('incredible' meaning 'unbelievable' or 'only a moron could think of this')

Ockham's Razor suggests that the simplest solution is usually the correct one. What the heck have we gotten ourselves into?

TCB

 

[Sam1911]

If, as Sam argues, this extends the statute's applicability to the realm of thoughts and pure intentions

You've missed an important point. I said it CANNOT be applied to mere thinking about something. There has to be practical action taken. We don't have thought crimes, yet. But if the terms say "re-designing" something to use a different way, the fact that you thought about using something in a different way, and then DID IT, would seem to qualify.

Don't oversimplify what I'm saying as a cheap and easy dodge around it.

 

[Sam1911]

The ATF's determinations typically dictate local law enforcement classification of firearms, no?

I don't think so. There are plenty of examples of state law definitions being significantly different from anything the fed.gov has on the books.

State law definitions would still rule, unless the state law specifically (or by case law) defers to federal definitions.

 

[barnbwt]

I meant that in regards to technical judgement calls: "is this specific part an autosear?" tyoe stuff, that local leo's are either unqualified or unwilling to make a determination on (so they consult or abide by ATF findings informally or formally)

I think what you describe for "design" is the equivalent of "constructive intent." No criminal configuration is reached/proven, but the close proximity to that state and circumstantial evidence indicating intention to proceed to that state can be used to obtain a guilty verdict. Same rules used to apply to building with "sbr diameter" PPSH trunnions, before the rules reformation in 2010. I don't see how your "indication of intent" can be drawn so close to the illegal configuration that legal/illegal configurations are physically identical. The only thing that changes is your thought, hence why it becomes a thought crime that pushes you over the line; no other rule in NFA works like this as far as I know.

TCB

 

[Sam1911]

I don't see how your "indication of intent" can be drawn so close to the illegal configuration that legal/illegal configurations are physically identical. The only thing that changes is your thought, hence why it becomes a thought crime that pushes you over the line; no other rule in NFA works like this as far as I know.

With the brace issue it would be pretty easy to say, without any "thought crime" aspect.

DID YOU SHOULDER IT? Now that's an ephemeral thing. Having done so once doesn't still "exist" but doing so is plenty sufficient evidence of having "designed" it to do so which is what the law requires.

Two identical items, but one that has been obviously "redesigned" to fire from the shoulder. Why? Because the defendant (added a brace and) fired it from the shoulder.
The other has the same brace, but was only used from the braced arm position. Whether the defendant ever designed it (only in his mind) to be fired from the shoulder or intended to do so someday doesn't matter and can't compel a verdict because he didn't DO it.

no other rule in NFA works like this as far as I know.

Sort of exactly how a bare, completely stripped down AR lower receiver could be either lawful or unlawful as a "handgun" because of something someone once did with it in the past. (i.e.: assemble it as a rifle first)

 

[dogtown tom]

barnbwt Query:

The ATF's determinations typically dictate local law enforcement classification of firearms, no? So does this mean the OCT crowd (or everyone else) in Texas can now legally open carry their insta-SBRs but only while intending them to be shouldered (or shouldered, in which case "do not try this")?
Pistols with a Sig Arm Brace have never been legal for unrestricted open carry in Texas. Same laws apply to those firearms as any other handgun openly carried in Texas.

If the firearm is an SBR, the possessor must have an ATF tax stamp to avoid prosecution under state law............and federal law.

The question is not whether the NFA or redundant state-level SBR law comes into play, but whether Texas carry law has been pushed around by the latest ATF issuance (with no prior consultation, consideration, representation, or coordination). That might be one more avenue for legal objection, from the State level (with it's deeper resources)

Texas law hasn't been affected one way or the other and neither has Federal law.

I take it you haven't read Texas law?

Also for consideration, is the Texas definition of a handgun;
""Handgun" means any firearm that is designed, made, or adapted to be fired with one hand." (better not do your OC protest with one hand on the grip and the barrel against your shoulder, nor supported with a sling )

Oh.Good.Grief.
Nothing in your warning is illegal with a handgun under Texas or Federal law.
Again, you fail to understand the least shred of Texas law on the open carry of handguns.

Even 'constructive intent' has always required some sort of tangible proof of intention (proximity, semi-completion, failed attempts), even in the most abusive/expansive examples available.

There is no such thing as "constructive intent".....and never has been. The term you seek is "constructive possession".

 

[barnbwt]

You sure of that? It's not like it's codified anywhere, after all , so we can call it anything we like (intent, possession, prosecutorial discretion). Yours is the correct vernacular though

I notice you again come unfailingly to the defense of the ATF, but whatever. My question is whether ATF classification rulings trickle down to the same with regards to local laws, assuming they don't have fully independent/unique definitions on the books. It is a fair question.

TCB

 

[Sam1911]

My question is whether ATF classification rulings trickle down to the same with regards to local laws, assuming they don't have fully independent/unique definitions on the books. It is a fair question.

I don't think so. There are plenty of examples of state law definitions being significantly different from anything the fed.gov has on the books.

State law definitions would still rule, unless the state law specifically (or by case law) defers to federal definitions.

 

[dogtown tom]

barnbwt You sure of that? It's not like it's codified anywhere, after all , so we can call it anything we like (intent, possession, prosecutorial discretion).

Positive. The term is a legal concept and well established.
A thirty second Google search will work wonders for you.

Yours is the correct vernacular though

So.......you agree then?

I notice you again come unfailingly to the defense of the ATF,

You notice it where?
Nothing in my post can be remotely construed as being in "defense of the ATF".

I think you assume that knowledge of ATF regulations and Federal law somehow means agreement...........that's sir is asinine.

Nice try at painting me with the "You Love ATF" brush. I guess its all you can do when you really have no substantive argument left.

......My question is whether ATF classification rulings trickle down to the same with regards to local laws, assuming they don't have fully independent/unique definitions on the books. It is a fair question.

No.
You've been a member of this forum long enough to know that Federal law is Federal law, not state law and states are free to be more restrictive. That's why there is MUCH discussion about firearms restrictions in California and other states that implemented their own laws regarding "assault weapons", When the Federal AW ban sunsetted it didn't affect those states in the least.

 

[barnbwt]

Back to topic...

"If the firearm is an SBR, the possessor must have an ATF tax stamp to avoid prosecution under state law............and federal law."
Oh, absolutely; I'm curious if ATF determinations inform local/state enforcement determinations. That's all, I'm not really making an argument on this front. I assumed that in cases where technical distinctions on legality are made, local/state officials may defer to or consult with the Bureau for advice.

"Nothing in your warning is illegal with a handgun under Texas or Federal law."
My point was that Texas law describing pistol v. rifle configurations has some vagueness as well, and that it could potentially have ramifications for open carriers due to the whole "pistols can't be openly carried" law on the books. If shouldering a pistol makes it a rifle, it is worth getting clarification on whether or not using a rifle one-handed makes it a pistol. Especially if Texan statute happens to be even more inconsistent in language than the NFA (I admit I haven't studied all the verses, just yet; working on it, though)

"Federal law is Federal law, not state law and states are free to be more restrictive."
Exactly, so when the ATF regulates more strictly than it used to (i.e. if it actually begins prosecuting brace-wielders whom it previously green-lighted on in writing --I'm not arguing they'd get far doing this, btw) it could have the effect of stricter local enforcement as well, only which wouldn't let up if the Bureau once again reverses itself because of exactly what you say.

TCB

 

[B!ngoFuelUSN]

However you thread the logic, or lack of it, I find this recent ATF ruling disappointing. It just shows how ludicrous parts of the NFA actually are. That it should come down to a gun being legal if held and fired one way, but if held and fired another way it becomes a criminal act. Seems to me that anytime something can shift from legal to illegal by changing its placement on your body points to issues with the rule itself. Not the misuse of the device.
As an aside, from a practical perspective, if it was only an issue of paying $200 and waiting a number months I wouldn't be as concerned. For many of the people on this thread, this is a theoretical issue, or an issue of how to save $200. Here in CA, we cannot own an SBR. No matter what the feds say and whether one is willing to pay $200, it is illegal in this state. I was hoping that I could use the brace to simulate one but now, having bought a Sig 556 pistol that came with a brace, I've removed it and have a high quality, high price, low value device. Perhaps its shame on me but I don't feel that rescinding a decision with no grandfathering is fair.
B

 

[dogtown tom]

B!ngoFuelUSN ....... Perhaps its shame on me but I don't feel that rescinding a decision with no grandfathering is fair.

The shame falls squarely on the shoulders of Sig and all those who advocated using the Sig Arm Brace as a shoulder stock.

Federal law and ATF rulings since 1934 have consistently held that a shoulder stock on a handgun requires a tax stamp. That's why many (me included) said Uh......that's a shoulder stock.

It was refreshing to read that ATF determined that the arm brace as designed WAS NOT a shoulder stock. But that initial determination letter should have recognized that someone would try and use the arm brace as a shoulder stock.
The resulting ambiguity has us in the mess we are in now.

I fault ATF for not clarifying legal use in the original determination letter.
I fault Sig for not asking for that distinction from the get go.
I fault the internet yahoos who advocated using the arm brace as a shoulder stock.
I now have suspicions of the designers real intent. It isn't that difficult to rig an arm brace with Velcro straps to allow someone to shoot an AR pistol. It does take some cleverness to make one that looks just like a standard AR buttstock.

The 1934 National Firearms Act was ill conceived and poorly written. But it IS the law. It makes no allowance for "grandfathering".

 

[danez71]

So now that the ATF is being compared to CA, does that mean all of the people that have said to get of out CA because it's a lost cause will take their own advice and get out of the USA?

 

[barnbwt]

"So now that the ATF is being compared to CA, does that mean all of the people that have said to get of out CA because it's a lost cause will take their own advice and get out of the USA?"
No, but maybe the ATF and portions of CA should

"The shame falls squarely on the shoulders of Sig and all those who advocated using the Sig Arm Brace as a shoulder stock."
I'm pretty sure SIG specifically never advocated shouldering the brace for a very good reason; it was everybody else's lying eyes (and loud yaps) that were the problem...supposedly. Letter two would have made SIG felons for intending to make an SBR (though letter 3 makes it perfectly fine to assemble a pistol brace for the purpose of others shouldering the gun, just so long as you don't do it yourself, right? Since there's no thought/pre-crime statute, here?)

"Federal law and ATF rulings since 1934 have consistently held that a shoulder stock on a handgun requires a tax stamp. That's why many (me included) said Uh......that's a shoulder stock."
Agreed, and yet it is somehow not the ATF's fault for failing to recognize an object that was clearly <George Orwell> "double-plus-ultra readily convertible" to a device that could be placed against the shoulder. I guess I shouldn't be too surprised, though; this is the same Bureau that constantly "oops-es" demill requirements to the point that functional select fire guns routinely slip through for a while, then wastes time & scares people by tracking down the items for rework/seizure. Same Bureau that took +50 years to figure out open bolt guns are very easily convertible to fully automatic fire.

"I fault ATF for not clarifying legal use in the original determination letter."
When has the ATF clarified the (il)legal uses for other Title 1 firearms, though? If they didn't have the authority to make the distinction originally (which is why they specifically stated shoulder fire was not subject to SBR restrictions) why do they have it now? Because they say they found it? Like on a table somewhere? Where's it been for +80 years? The closest thing to cite is that magic trick that turns a 'firearm' into an AOW in certain cases, and even that has a very limited (and spotty) judicial track record (since even pistols with attached vertical foregrips have been ruled not AOW's in the past). There's also very clear language about the item as capable of being concealed in that case; "capable of being shoulder fired" is not how rifles are defined, short or otherwise.

"I fault Sig for not asking for that distinction from the get go."
Can you blame them (and I don't think it was SIG, but the inventor who filed the letter; incidentally for exactly the stated bracing reasons)? They stood to make a ton of money if they could get this one past the Bureau, and somehow they pulled it off. More power to 'em. While a lot of folks may think this is foul doin's on SIG's part to "use" us this way, the fact remains that they have been, and are, doing more to fight NFA overreach than the NRA has in a while* --again, for the evil money-- so I let it slide. This whole thing was pretty obvious as a "It's a Trap!" meme from the get-go, though (anyone who knew what NFA was careful about their involvement with the SIG brace)

"Perhaps its shame on me but I don't feel that rescinding a decision with no grandfathering is fair."
Well, not that the word "fair" is anywhere in the NFA or GCA, but I, too, agree that the ATF burned what little good will they might have had with this decision by not offering an SBR amnesty for these things and halting all new sales as "pistols." Instead, the current situation puts all the burden on the public, and needlessly/recklessly so. An awful lot of people are going to be unknowingly exposed to extremely serious felony charges because the ATF chose to direct their statement not towards those best suited to abide by it.

TCB

*between the "brace" and "silencer" efforts, they have laid open the two more vulnerable points of the NFA to direct, probing, scrutiny. Prompting the ATF to squirm greatly, of course.

**Last stupid thought of the night; if shouldering 'manufactures' the taxable SBR, unshouldering it would as well, otherwise every single photographed shoulder-er is a slam dunk case the ATF will get around to pursuing eventually as a possession charge --they're kind of required to in light of the new ruling and lack of amnesty. If releasing the brace 'unmakes' the device, then you have the even more illogical situation of as many counts of manufacture as destruction of evidence as times your shouldered the thing, and the comical inability to demonstrate the crime in a court room without an SOT filing paperwork in advance of each shouldering .

 

[Redlg155]

I think the ticket here is the Americans with Disabilities Act. All it takes is a disabled vet, or non vet, to claim protection under the ADA thus ensnaring the govt. in its own bureaucracy.

On a side note...why would you want to post firing your weapon by using a SB15 as a traditional shoulder stock on youtube??? I just checked and there several videos.

 

[barnbwt]

"I think the ticket here is the Americans with Disabilities Act. All it takes is a disabled vet, or non vet, to claim protection under the ADA thus ensnaring the govt."
I'm even less aware of ADA than NFA language, but is it really realistic to expect a "right to a wield-able AR-pistol" as a result of its text? That seems way too specific, especially when --hate to sound like a rationalizing anti pushing an AWB here-- there are so many adequate alternatives available. And when they can still access a slung rifle (as well as the taxed SBR route that's open, regardless). Just seems like a hard sell to a judge that probably thinks a 22LR is all anyone "needs" anyway

"why would you want to post firing your weapon by using a SB15 as a traditional shoulder stock on youtube??? I just checked and there several videos."
Because not everybody knows everything as esoteric as unsettled gun law, nor can they be expected to.

TCB

 

[CoalTrain49]

I think the ticket here is the Americans with Disabilities Act. All it takes is a disabled vet, or non vet, to claim protection under the ADA thus ensnaring the govt. in its own bureaucracy.

I'm familiar with some ADA requirements. When fed funds are used on any local highway project the designs have to comply with fed standards. A good example would be sidewalk wheel chair ramps at intersections. A disabled person in a wheel chair can't get across an intersection without one. Although I haven't seen some of them ever used it's still a good idea.

A permit to own a braced pistol if you can prove you have a disability, just like a handicapped parking permit, would be a good idea also. That would cut through all of the state regulations against braced pistols. They are sure to appear if they haven't already. You could get a doctor to state you have a disability whereby you can't fire a regular pistol accurately because of range of motion, arm strength, etc. You take that to your state licencing agency for your brace permit at the same time you go to get your handicapped parking permit.

I have a feeling the ATF isn't going to come out and say a brace is illegal to have in your possession for that very reason. They are going to leave it up to the states to make possession illegal or permitted, and they will, just give them some time. Legislators love to put people into neat little categories and people love to work the system. I've seen them do it.

Problem solved.

 

[USAF_Vet]

So is a permit to own a braced pistol if you can prove you have a disability, just like a handicapped parking permit. That would cut through all of the state regulations against braced pistols. They are sure to appear if they haven't already. You could get a doctor to state you have a disability whereby you can't fire a regular pistol accurately because of range of motion, arm strength, etc. You take that to your state licencing agency for your brace permit at the same time you go to get your handicapped parking permit.

This is the same concept as owning switchblades in prohibited states. Anyone with a disability limiting the use of an arm or hand can own a switchblade in an otherwise prohibited state.

 

[armoredman]

Here's a left field question for the NFA experts, and I am actually serious.
I can see how an AR-15 pistol or another pistol with a Brace Adapter could be utilized in a home defense situation, and one possibility is with the pistol equipped with laser, and the buffer tube/adapter tucked up in to the armpit, leaving the other hand free and keeping the gun close, but only aiming with laser or blind luck. As oddball as that sounds, the question is, (I know it's ridiculous, but so much of law IS ridiculous, seemingly), would THAT be a violation of NFA?
No, I have never tried it, never seen anyone try it, just something that I thought of, and yes, I do think up goofy stuff once in a while, everyone here knows that by now.

 

[Sam1911]

Well, I think the real answer is "who knows?" Then followed with, "but probably not." If there's any reality in this idea of "re-designing" being based on action in both modifying and using the item, then there is no modifying component to that use. You didn't change the gun, you just used it that way.

But until/unless the ATF decides to make a further statement saying that they will (or won't) enforce the law that way, we won't be able to say with certainty.

And then, unless someone finds a way to get a case pushed through the court system, we'll never know if that enforcement is truly in conformity with how SCOTUS reads the NFA.

 

[barnbwt]

"Anyone with a disability limiting the use of an arm or hand can own a switchblade in an otherwise prohibited state."

I did not know that; so perhaps there is some precedent here, at least for certain special favored classes with extra protections. Not much good it does the rest of us, though.

"I can see how an AR-15 pistol or another pistol with a Brace Adapter could be utilized in a home defense situation, and one possibility is with the pistol equipped with laser, and the buffer tube/adapter tucked up in to the armpit, leaving the other hand free and keeping the gun close, but only aiming with laser or blind luck. As oddball as that sounds, the question is, (I know it's ridiculous, but so much of law IS ridiculous, seemingly), would THAT be a violation of NFA?"

That all depends if the ATF thinks it can redefine the word "against" to mean "along side of" instead of "directly opposite of." After all, the NFA doesn't say which side of the shoulder a stock is to be place against, so an armpit would still be considered shoulder fired in a liberal reading. Then again, the ATF has steadfastly refused to rule on where the shoulder ends, only ruling on alternate stock emplacements such as chin, forehead, collar bone, upper arm, and groin, on a case-by-case basis

TCB