SBR's, braces, and the ATF

[george burns]

I knew it was just a matter of time. It was almost a direct slap in the face of the ATF. They just took longer to figure it out. I don't agree with them, but realistically I didn't get one because I didn't want to have to get a letter saying that I have to destroy it or hand it over or use it as designed, which looks uncomfortable to me.

 

[Sam1911]

Bob, I certainly see your point. And if anyone ever has some standing to sue and gets this to the SCOUTS, maybe that's what their decision will hinge on: does "re-purposing" equal "re-designing" in effect?

But back to what I said before, they're then left with simply having to declare the SIG brace unlawful, period. And I think they're really trying pretty hard to not have to do that.

And it gets a little muddier when the law actually talks about the firearm itself being redesigned, not the brace/stock. Does the fact that you added this "doohicky" and then shouldered it mean you redesigned it to be fired from the shoulder? It kind of does, doesn't it? But maybe you just added this "doohicky" and strapped it to your arm -- never shouldered it. Ok, so you didn't redesign it to fire from the shoulder. The fact that you DID shoulder it proves the act of adding something as a stock, which qualifies as a redesign.

This parallels right along with their point in the other letter about the pgo "other shotguns" being concealable if it is under 26" -- OR -- if you actually conceal it. Your action with it establishes that it is something.


By the way, all of this debate over the precise moment that an item is "redesigned" and whether altering a use after the fact can "redesign" something, or if it is retroactively "redesigned" by that use, etc., would make a great doctoral thesis in psycho-linguistics, probably.

 

[Sam1911]

Sam, would the shoulder shovel stock be a grip if held with the free hand? Certainly not an SBR, but still an AOW

No idea. It isn't a forward vertical grip... Guess we'd have to ask the folks at the Tech Branch. Or...maybe turn it 90 deg? Now it's a "horizontal" grip?

I mean...after all, THIS is legal:



Though... daft.

 

[Darkbob]

In regard to the shovel stock, both the shovel handle and the rifle were redesigned when that was attached to the rifle. The shovel was modified to fit on the rifle and the rifle was modified when the handle/stock was added to it.

With the brace, we're talking about a piece of equipment that is perfectly legal to have on your pistol. In fact it was designed to be on a pistol, and the ATF still agrees that having it on your pistol is OK.

To use something doesn't redesign it, it just uses it. Maybe I'm wrong. If so, I've been redesigning things most of my life without knowing it. I wonder if I can patent the door that I redesigned when I closed it with my foot instead of by the handle? Although, by the ATF's definition, I redesigned it back once the door was closed and I started walking away.

I would like to know know what the linguists think of the definition of the words are. That may be what the lawsuit's boil down to.

 

[Sam1911]

Well, technically the act of designing and the act of modifying are not synonyms, either.

To use something doesn't redesign it, it just uses it.

A few definitions:

de·sign
dəˈzīn/Submit
noun
1. a plan or drawing produced to show the look and function or workings of a building, garment, or other object before it is built or made.
"he has just unveiled his design for the new museum"

synonyms: plan, blueprint, drawing, sketch, outline, map, plot, diagram, draft, representation, scheme, model
"a design for the offices"

Well, clearly not that.

2. purpose, planning, or intention that exists or is thought to exist behind an action, fact, or material object.
"the appearance of design in the universe"
synonyms: intention, aim, purpose, plan, intent, objective, object, goal, end, target;

Eh...well, yeah. Changing how you're using something does by definition alter the purpose or intention behind what you're doing. So that's a redesign.

verb
verb: design; 3rd person present: designs; past tense: designed; past participle: designed; gerund or present participle: designing
1. decide upon the look and functioning of (a building, garment, or other object), typically by making a detailed drawing of it.
"a number of architectural students were designing a factory"
synonyms: plan, outline, map out, draft, draw More

The process of deciding then, figuring out how to make something do or be what you want. Like figuring out how to shoot what was a handgun from your shoulder.

At no point does the definition of "design" cover the same ground as the terms "construct" or "modify" or "build" or "stick together."

Design is in the decisions and forming of a concept.

 

[Sam1911]

Design is in the decisions and forming of a concept.

And, to repeat my prior point, the fact that you fired it from the shoulder would then be prima facie evidence of your redesigning it to fire from the shoulder.





Which, of course, has further implications for folks who shoulder bare buffer tubes. This is a knotty pickle we and the BATFE find ourselves in. At some point we are probably going to have to accept that they simply WILL enforce it as "X" and NOT enforce it as "Y" and that will be that. Chasing the rabbit too far down the hole will be more than even they have any desire to do.

 

[hso]

Sig has issued a news release suggesting they'll challenge the open letter on this. The idea that policy at BATFE would shift so drastically (not the brace itself, but the fundamental shift from design to use frames as "redesign") threatens not only this, but prior tech interps with standing.

 

[Ryanxia]

The ATF is trying to say that using something in a way that it wasn't designed for "Re-Designs" it! No, using something doesn't redesign it, it's just using it.

The ATF is trying to change the meaning of a word (redesign) so that the word fits into the letter of their law, because the brace is able to get around the intent of the law.

That's the heart of the matter right there.

First step towards Newspeak?

 

[Sam1911]

hat's the heart of the matter right there.

Is it? Unfortunately DarkBob's definition of redesign to be equivalent to "modify" doesn't really fit the dictionary definitions. Design is a conceptual process. A matter of the mind. I design and re-design things all the time but rarely build, construct, or modify those things myself.

Why would "modify" be seen as synonymous with "re-design" to those highly educated wordsmiths on the Supreme Court?

 

[Ryanxia]

Redesign is a matter of the mind? So if I think about an unlawful act I'm guilty of violating the National Firearms Act?

I think I'm gonna tap out of this subject until something new happens with it (hopefully that being a suit filed by Sig & friends).

 

[Sam1911]

Redesign is a matter of the mind?

Of course it is. A design (noun) isn't the thing and TO design (verb) doesn't create that thing.

So if I think about an unlawful act I'm guilty of violating the National Firearms Act?

I assume you're not really suggesting that. What crime is in a thought without an action?


Tricky ground, isn't it? Design doesn't mean modify. But without putting design into some form of action, the design (verb) hasn't been actualized, and thus there is neither the effect nor the crime. An act, then proves the fact of design (verb). But what act, precisely, qualifies to prove you redesigned that gun to use from the shoulder?

I guess using it from the shoulder does.




And by that logic, the brace itself may be largely beside the point. Or, at most, a collaborating indicator of the fact of "re-design."

 

[danez71]

Bath salts, when smoked, are considered an illegal drug. Bath salts, when used as designed/intended are legal.

Many other examples out there of people using legal products in such ways that are not legal.

The argument to the contrary just doesn't seem to hold up... despite how much I want it to.

Car

 

[ngnrd]

I think the pill that folks are choking on here is not that the ATF can regulate SBR's (which, as much as folks may not agree that should be the case, is clearly within their authority), but rather, the ATF's redefinition of the term re-design. The new meaning that they have assigned to that term just doesn't make sense to the average person. The commonly used term that meets the definition they want is re-purpose, or maybe use. That is: If a part is used or re-purposed to allow a firearm to be fired in a manner inconsistent with the intent of its original or otherwise approved design, then (insert consequences here).

To my point, if you asked a large sample of persons to show you how to use a screwdriver as a knife, many would pick it up and make a stabbing or cutting motion with it. But, if you asked folks to re-design a screwdriver into a knife, the vast majority would likely conclude that sharpening it in some manner would meet that criterion. But, would any of them simply pick it up, use it to make a stabbing motion in the general direction of another person, and confidently proclaim that the screwdriver has now been redesigned into a knife? I don't think so. Is that a perfect example? No. But I believe it provides some insight as to the common definition of the term redesign.

In the above example, it could certainly be argued that the person making a stabbing gesture with a screwdriver had assaulted a passerby. But could it be argued that the victim was assaulted with a knife? The penalty for an assault can certainly be increased because there is also a law that allows such if the assault is perpetrated with a deadly weapon, which carries a broad definition based on the possibility that an object may inflict death or great bodily harm when wielded by a person intending to do so. Further, such a law does not redefine what a screwdriver is. But, if the law only allowed increasing the punishment if the assault was perpetrated with a knife (and not a broadly defined deadly weapon), it would (in my view) be much more difficult, maybe even impossible, to convince a jury that any added charge for using the screwdriver during the assault was appropriate. (Surely someone on a jury would be a stickler for the language of the law.)

Like the screwdriver used above, and regardless of how the ATF is attempting to redefine the word, using a pistol brace inconsistent with its original design does not redesign it (at least not by the common definition of the word). So, if the ATF wants to prohibit brace owners from shouldering their pistols (which - in my view - they clearly do), they should provide guidance which states exactly that - and provide the appropriate references to the law that they are charged with regulating that allows them to prohibit such an act.

However (and I could certainly be wrong, but I'm using the 2014 ATF Federal Firearms Regulations Reference Guide as a reference) there is nothing in the LAW relevant to this discussion that allows the ATF to regulate HOW a firearm is used, only what design features are allowed or prohibited for different categories of firearms, and their transportation, sale, transfer, and possession.

Of course, in full disclosure, the above statements are my personal opinion. I am not a lawyer. Neither am I a judge or a jury. And, I'm certainly not volunteering to be a test case for this issue.

 

[barnbwt]

"Bath salts, when smoked, are considered an illegal drug. Bath salts, when used as designed/intended are legal.

Many other examples out there of people using legal products in such ways that are not legal.

The argument to the contrary just doesn't seem to hold up... despite how much I want it to."

Prosecution for use does not equal possession. The ATF can only prosecute NFA based on the former (and manufacturing, which is a "verb" form of possession, so to speak).

TCB

 

[Sam1911]

ngrd, I certainly see where you're coming from, and I know that's where lots of us are coming from.

But as imperfect as all these analogies are, the answer seems to lie in how a court (if it ever gets that far) will say the term "re-designed" has to be understood. It doesn't mean "modify" clearly, and yet a purely cognitive understanding of "design" (meaning to think up, plan, decide on the features of, imagine the utility and form of, etc.) would mean the item in question has not been affected and so not changed, even in the ephemeral way that picking it up and shouldering it supposedly "redesigns" it.

It will be fascinating to watch this develop. Or WOULD be. Unfortunately, I really don't see it making its way in front of justices. I think it will just become acting regulation.


(And it can remain so forever, if the ATF doesn't choose to actively enforce it, which I also suspect will be the case.)

 

[HankB]

Just to go " . . . further down the rabbit hole . . . "

We know the BATmen have determined "Once a machine gun, always a machine gun." So there is no prospect of ever getting milsurp M14 rifles, even if the lug is ground off completely.

So . . . what if they decide that "Once a SIG braced pistol is used as an SBR, it's ALWAYS an SBR?"

I can see a shooter at the range, using a SIG braced pistol in the approved manner. A couple of Feds show up, flash badges, and insist on inspecting the pistol. (The guy isn't going to resist, right?)

Agent Schmuckatelli picks up the pistol, shoulders it, and proclaims it was just re-designed into an SBR, which without a tax stamp is contraband.

The Feds confiscate the pistol, but in their kindness, decide not to arrest or prosecute the former owner, since it wasn't an SBR while in his possession. Of course, their victim is free to sue.

Preposterous? Absolutely! But hardly more preposterous than their contention that holding a firearm one way is legal, but holding the same firearm differently constitutes a felony.

 

[ngnrd]

Sam, since you seem to be leading this discussion, perhaps you would allow me the liberty to pull back just a bit more of the curtain for a moment (or, perhaps go a little "further down the rabbit hole", as it were).

Consider the relevant portions of the legal definitions of pistols and rifles…

Pistol: a weapon originally designed, made and intended to fire a projectile when held with one hand.
Rifle: a weapon designed, or redesigned, made or remade, and intended to be fired from the shoulder.

As you can see, in stark contrast to the classification of a weapon as a rifle, the classification of a weapon as a pistol is based solely on its original design, not on any redesign or remaking that may occur once that weapon is constructed.

Yes, as cumbersome as it may be, the ATF is obviously tasked with regulating firearm law that apparently contradicts itself. But, how can anyone read the legal definition of a pistol and not come to the conclusion that "once a pistol, always a pistol"? And, assuming that to be true, what would it matter if someone puts a stock on a pistol, since the law pertaining to short barreled rifles, or for that matter, Any Other Weapon would not apply?

I know this line of thought is a bit far removed from the original subject, but I believe it is relevant with regard to the regulation of a pistol brace as a pistol stock (as opposed to its improper regulation as a rifle stock). Further, I don't know if anybody has made the argument to a court that the "non-permitted SBR" they were charged with possessing was actually a pistol with a shoulder stock attached and not a rifle at all, short barreled or otherwise, based on the legal definition of a pistol.

In any event, although I know that changes to how the ATF makes/enforces its regulations will only come through court challenges, and not intense internet forum discussions, this is certainly a fascinating thread.

 

[barnbwt]

But as imperfect as all these analogies are, the answer seems to lie in how a court (if it ever gets that far) will say the term "re-designed" has to be understood. It doesn't mean "modify" clearly, and yet a purely cognitive understanding of "design" (meaning to think up, plan, decide on the features of, imagine the utility and form of, etc.) would mean the item in question has not been affected and so not changed, even in the ephemeral way that picking it up and shouldering it supposedly "redesigns" it.

I think there is a very strong argument to be made on logical rather than legal grounds, that strongly suggests a massive flaw in the legal arguments being constructed (not what the flaw is, but rather that something unseen is very wrong and hasn't been nailed down explicitly yet). The ATF has existed for how many years, and the NFA for how many before that, and yet their enforcement has never attempted to focus on usage, but has almost universally hinged on demonstrable configurations. What they are now doing is attempting to conflate the two based on the circular logic that because a configuration is suited to a use, a different configuration used identically is therefore identically configured. Circular logic can be difficult to pin down, precisely because it is seamless, but it's here, somewhere, justifying whatever the ATF desires. The inconsistent language in parallel portions of the NFA is the "glue" used to rationalize the whole thing together. Yes, when you follow each logical step, it can make sense, but that's how you end up walking circles in the woods. The very fact this whole situation makes no goddanged sense in the real world is the testament. "It's complicated" is a tactic, not an argument.

The very fact the US government hasn't seen fit to prosecute two-handed grips and the like for the last century is precisely because they knew they lacked the statutory authority to do so. Just because some upstart punk running the Bureau these days decides that is no longer the case changes none of that history, nor the arguments underpinning it. I think this angle would be the most interesting, and that a FOIA request of all internal discussions regarding the brace would reveal a concerted effort to justify an expansion of their authority to somehow shut down this whole "not an SBR" thing (probably for the children). Sadly, even that much would take at least two years, and land us in the next administration who conveniently wants to put this whole thing behind us and move Forward.

As pathetic as it is infuriating, I think the best recourse to us gunnies at this point is to complain to the House Oversight Committee, which has some involvement with these agencies and their abuses. This is the committee that perennially complains about Chokepoint, F&F, the IRS stuff, and others (and never seems to go anywhere with it, but at least gets it in the papers). If the issue could even be brought up in some limited capacity in a way that appears "scandalous" to laymen, the attempt to even frame the problem for a hearing or report would make the Scopes Monkey Trial look like a model judicial proceeding. Just imagine a layman's article trying to make heads or tails of what is being talked about!

.9mm auto-clipping short semi-folder-launchers, indeed! With a handle-grip!

TCB

 

[armoredman]

...bath salts the drug have no relation to bath salts the common household ingredient. Just sayin...

 

[Armor Snail]

...bath salts the drug have no relation to bath salts the common household ingredient. Just sayin...

This. Using that term was just to fly them under the radar. They would have had both scrutiny and trouble selling if they were called "legal for now chemical compound that will mess you up good".

 

[Sam1911]

So . . . what if they decide that "Once a SIG braced pistol is used as an SBR, it's ALWAYS an SBR?"

Hank, I guess this is an "anything is possible...somehow, someway, someday" kind of question, but I don't know that there's much validity in the worry. For one thing, you'd be suggesting that an ATF agent BE THE ONE to violate the law. That would be somewhat akin to him filing off your disconnector and making your gun run full-auto. Or a DEA agent running through your house picking up medicines and chemicals you've got around and cooking up some meth on your stove so, bang, now you've got meth. Pretty far fetched, I think. (Though a great subject for a movie plot, probably.)



And there's the fact that while machine guns are "once a...always" subject, SBRs and SBSs are not. So the more to-the-point precedent for comparison would seem to be the reversible condition of SBRs.

 

[barnbwt]

Not to mention the Supreme Court case forcing them to allow pistols to be reversible from rifle configuration (and by ATFs own logic on 922r, SBRs as well)

TCB

 

[Sam1911]

Sam, since you seem to be leading this discussion, perhaps you would allow me the liberty to pull back just a bit more of the curtain for a moment (or, perhaps go a little "further down the rabbit hole", as it were).

Hey man, I'm just a very interested enthusiast, like yourself. Fascinated by this lexical pickle we and our jack-booted overlords (hee hee ) find ourselves in. Explore away...!

Consider the relevant portions of the legal definitions of pistols and rifles…

Pistol: a weapon originally designed, made and intended to fire a projectile when held with one hand.
Rifle: a weapon designed, or redesigned, made or remade, and intended to be fired from the shoulder.

As you can see, in stark contrast to the classification of a weapon as a rifle, the classification of a weapon as a pistol is based solely on its original design, not on any redesign or remaking that may occur once that weapon is constructed.

Right. And that is significant. Or probably is. I think. Except that, as 80 years of precedent shows, re-(something) a pistol by adding a stock makes a Title II "Firearm" that falls under the definition of "rifle."

Yes, as cumbersome as it may be, the ATF is obviously tasked with regulating firearm law that apparently contradicts itself.

Boy, howdy, does it ever!

But, how can anyone read the legal definition of a pistol and not come to the conclusion that "once a pistol, always a pistol"?

The argument there, supported by that 80 years of precedent is, because it isn't a pistol any more, it is a type of rifle. The fact of the definition of "handgun" (not in the NFA, by the way, but in the GCA 34 years later) doesn't have any part to it that seems to restrict a pistol from becoming something else.

And, after all, we know that a pistol can be made into a rifle, perfectly lawfully. It isn't STILL a pistol if it has a stock (and a 16" barrel. Or less if NFA.) It is a "long gun (rifle or shotgun)" and transfers as what it is, now, not what it was once.

(Oh...except that it retains some pistol quality, supposedly, because you can then rebuild it as a pistol, wheras if it had started as a rifle, you can't. Wait...what? Contradictory? Confused yet?)

And, assuming that to be true, what would it matter if someone puts a stock on a pistol, since the law pertaining to short barreled rifles, or for that matter, Any Other Weapon would not apply?

Well, see above.

I know this line of thought is a bit far removed from the original subject, but I believe it is relevant with regard to the regulation of a pistol brace as a pistol stock (as opposed to its improper regulation as a rifle stock). Further, I don't know if anybody has made the argument to a court that the "non-permitted SBR" they were charged with possessing was actually a pistol with a shoulder stock attached and not a rifle at all, short barreled or otherwise, based on the legal definition of a pistol.

Again, though, the definition of a handgun under the GCA doesn't seem to preclude any of the definitions as laid out under the NFA. If you're charged with violating the NFA, whether or not something in the GCA seems to be relevant probably doesn't matter at all.

In any event, although I know that changes to how the ATF makes/enforces its regulations will only come through court challenges, and not intense internet forum discussions, this is certainly a fascinating thread.

Isn't it, though? Just fascinating. Like a mental jigsaw puzzle where you're pretty sure the completed thing has a big hole in the middle, contains parts from at least two separate pictures, and when completed is a piece of abstract art that everyone sees slightly differently.

 

[Sam1911]

Yes, when you follow each logical step, it can make sense, but that's how you end up walking circles in the woods. The very fact this whole situation makes no goddanged sense in the real world is the testament. "It's complicated" is a tactic, not an argument.

I have long harbored a deep dark desire to see a challenge to the NFA that argues that it is so contradictory and logically flawed that it is unenforceable in a clear, consistent way. Laws do get thrown out for being too vague and thus requiring arbitrary decisions in enforcement.


But then I have to yell at myself and make myself stand in the corner for being a jailhouse lawyer and "too smart by half."

Lots of bad laws and badly written laws, and arbitrary and capricious laws are enforced every day and so the fact that the NFA IS one doesn't give us any real hope that it will be struck down 80 years after the fact just because it is so. <sigh>

 

[HankB]

. . . For one thing, you'd be suggesting that an ATF agent BE THE ONE to violate the law. That would be somewhat akin to him filing off your disconnector and making your gun run full-auto. Or a DEA agent running through your house picking up medicines and chemicals you've got around and cooking up some meth on your stove so, bang, now you've got meth.

Grinding off the disconnector would certainly be redesign, much as sawing the barrel off a shotgun. Something easy like holding the gun differently? Hmmm . . . there's the matter of "constructive possession" and the way they've tried to use it in the past . . . if merely holding a formerly legal gun a certain way becomes a felonious action, I wouldn't put anything past them.

And there's the fact that while machine guns are "once a...always" subject, SBRs and SBSs are not. So the more to-the-point precedent for comparison would seem to be the reversible condition of SBRs.

Are unregistered, contraband SBRs reversible?

Granted, this is asinine, ridiculous, and illogical . . . but we ARE talking about an agency that is attempting to illegitimize certain ways of holding a legal gun, and which once tried to define a shoelace as a machine gun.