SBR's, braces, and the ATF

[Averageman]

Quote:
If I put a Cow in my Ford Mustang does it suddenly become a pick up Truck?
If so do I then pay the lower tax rate for plates and insurance because I have used it in a manner that constituted a "redesign" ?
I'm just thinking here that this will not pass the smell test if it gets to the Supreme Court.

Reading this, I'm not clear which side of the debate you're arguing from.

If you put a cow (item used as a stock) on your mustang (pistol) does it become a pickup (SBR)? The analogy is unclear because I don't know of federal laws expressly defining those terms or changing the legality of one vs. the other.
__________________
-- Sam

Just as the Sig Brace in and of itself is legal and the Pistol may be legal and even when combined they are still legal it then the question comes down to the legality of how the combined two are used.
If as in the example of the car becoming the truck changes the legal or tax status when I use it in a manner other than it's original design. The manner in which you use something cannot then change its legal or tax status.
If you follow this then it isn't and cannot be considered a redesign as the use hasn't changed the form or design of the brace.
The BATFE cannot write law, they approved the brace, nothing has changed in the design, only the way in which some individuals have chosen to use it.
This is an end around, they cannot write a law saying "If you shoulder a Sig Brace you are not in compliance." They do not have the authority to do so.
It is simply wrong and I am sure will be proven wrong in court.

 

[Sam1911]

They'd have to have video of brass coming out of the port as you shoulder fired the "pistol" Simply don't do so with witnesses around, and you'll be fine. There are non-firing replicas, airsoft with the orange tip removed (prove that I own one?) etc. So just stills of you holding the gun in such a manner would be very likely to be laughed out of court.

Unfortunately, I think this does get into the realm of real "jailhouse lawyering" all kidding aside. The thought that a picture like that would not be a substantive bit of evidence in a case isn't terribly realistic. Your lawyer could challenge the validity of what's shown there and possibly present some sort of evidence to discredit it, but it wouldn't be laughed out of court.

 

[Sam1911]

Just as the Sig Brace in and of itself is legal and the Pistol may be legal and even when combined they are still legal it then the question comes down to the legality of how the combined two are used.
If as in the example of the car becoming the truck changes the legal or tax status when I use it in a manner other than it's original design. The manner in which you use something cannot then change its legal or tax status.

You're equating state laws on vehicle registration with federal laws powerful enough to restrict an enumerated right and to put someone in prison for 10 years. I don't think it is at all safe to make any sort of assumption that they are the same, or that they represent equivalent points of law.

(And there are plenty of examples where work-arounds folks find for tax and other laws, equivalent to using a car to do a truck's job, are struck down as without merit and might even be tax evasion. That's not an area of any special expertise for me, but I think this is dangerously optimistic thinking.)

If you follow this then it isn't and cannot be considered a redesign as the use hasn't changed the form or design of the brace.

Again, it isn't the form or design of the brace that's in question, but whether the firearm itself has been re-designed to be fired from the shoulder.
Design and modify are different words.
Design (verb) and form are different words.

How does the Court see the words? I just don't know.

The BATFE cannot write law, they approved the brace, nothing has changed in the design, only the way in which some individuals have chosen to use it.

Which would then leave them no choice but to rescind the approval. I think they're trying hard to be more "liberal" than that, more generous.

This is an end around, they cannot write a law saying "If you shoulder a Sig Brace you are not in compliance." They do not have the authority to do so.
It is simply wrong and I am sure will be proven wrong in court.

I'm not sure why you feel that a regulatory agency given authority to write regulations based on the text of the law doesn't have the authority to say that how you do something might change the nature of it.

And there is (recent, at least) precedent for that, with their letter about the PGO shotguns. To wit: it is a concealable AOW if it is under 26" long -- or you CONCEAL it. Which makes perfect sense. The act of concealing it proves it is concealable, and rebuts the presumption they make that anything over 26" long isn't.

Again, I don't know the Court would ever agree with my perspective here wholly, but I'm not going to put money on them throwing this ruling out.

 

[Sam1911]

It would never make it into court. No assistant USDA would risk it. This is all tin foil hattery.

So you're saying it will never be enforced? No one will be prosecuted for this?

Might be. Guess we'll find out.

 

[ngnrd]

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...!

Perhaps 'leading' isn't as accurate as 'moderating'. In any case, thank you for indulging me.

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."

I have to wonder... Just how incontrovertible is such precedent if it has never been challenged on the basis of the legal definitions of the firearms in question?*

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.

Well, I'll grant you that according to the legal definition of a rifle, it is apparent that something can be remade to be a rifle. But, according to the legal definition of a pistol, that something isn't a pistol. By definition, a weapon is defined as a pistol based on it's original design. A rifle is defined as such based on its current design. It may seem to be a subtle difference, but it would seem to me that such a difference would be legally significant.

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.

The definition of a handgun as given in the GCA of 68 does not redefine a pistol. The NFA does not provide law regarding handguns, but rather, pistols and revolvers. So, again, one would have to fall back to the definition of a pistol, as stated in the NFA. That is, a weapon is a pistol based on its original design. And the original design always remains the original design, even if subsequent modifications alter its current design. Thus, a pistol is always a pistol.

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?)

Except, I would argue that a pistol, even if reconfigured to the legal description and specifications of a rifle, can never actually BE a rifle. Rather it is, by definition, still a pistol. Isn't that the only way such a weapon could then be re-configured to the specifications of a pistol and not be classified as a AOW? That is to say, although a rifle can be configured to the specifications of a pistol, it can never BE a pistol. It would be (properly) reclassified an an AOW, and would - by law - be subject to the tax stamp requirement. Thus, if a pistol could be legally redefined as a rifle, it could never subsequently be legally redefined as 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.

That's exactly what I've been saying. It's the language in the NFA that governs the definitions of the various configurations of firearms. And those very definitions are what preclude pistols from ever being remade into anything other than reconfigured pistols.

*However, my train of thought here is based on the law as written, and not any court decisions on the matter. If anybody knows of any relevant case law where the legal definition of a pistol has been used as a defense to a charge of possession of a non-taxed SBR that was 'made' from a pistol, I'd certainly like to see it.

 

[Sam1911]

Isn't that the only way such a weapon could then be re-configured to the specifications of a pistol and not be classified as a AOW?

Not sure how AOW got into this. The problem would be that such a weapon would become a "Firearm made from a rifle," because the (lowercase "f") firearm had once been a rifle.

AOWs are a whole different set of categories.

 

[Sam1911]

Well, I'll grant you that according to the legal definition of a rifle, it is apparent that something can be remade to be a rifle. But, according to the legal definition of a pistol, that something isn't a pistol. By definition, a weapon is defined as a pistol based on it's original design.

Ok...but this seems a thin straw to clutch. If you rebuild a toaster into an object that expels a bullet from fixed-cartridge ammo through a rifled barrel and it has a stock on it, you've made a rifle. If you torch-cut a pistol into bits, it isn't still a pistol. Things CAN change forms. I don't see anything anywhere in the case law I know about that says the BATFE and Courts have ever even entertained a question of "once a pistol, always a pistol." I mean, it literally runs counter to EVERY OTHER decision on the subject that's ever been made, or that's ever been upheld in court.

A rifle is defined as such based on its current design. It may seem to be a subtle difference, but it would seem to me that such a difference would be legally significant.

If so, I think yours would be the first case in which it ever was.

That is, a weapon is a pistol based on its original design. And the original design always remains the original design, even if subsequent modifications alter its current design. Thus, a pistol is always a pistol.

I cannot imagine either a logical or legal challenge ever being sustained that said a pistol cannot ever be considered any other kind of firearm, considering that we have so much precedent that says it can become a rifle or an AOW, or a machinegun (all different "Firearms" under the NFA). Not trying to insult your reasoning, but this seems completely fanciful, pie-in-the-sky reasoning.

Especially considering that the last Court case which seems to have touched anywhere close to this refuted the idea that a pistol, when made into a rifle, was then forever a rifle and could not be a pistol again. (Thompson) There the Court refuted your position in TWO ways. One by completely accepting prima facie that a pistol could become a rifle, and then by nixing the ATF's opinion that, when converted back into pistol form, its nature as a rifle didn't change.

Then there's the fact that handguns may not be transferred to a person under 18, or a person under 21 if by a dealer. But a pistol AR that's been converted into a rifle CAN be. If it was still a pistol, that would not be true.

Except, I would argue that a pistol, even if reconfigured to the legal description and specifications of a rifle, can never actually BE a rifle. Rather it is, by definition, still a pistol. Isn't that the only way such a weapon could then be re-configured to the specifications of a pistol and not be classified as a Firearm made from a Rifle? That is to say, although a rifle can be configured to the specifications of a pistol, it can never BE a pistol. It would be (properly) reclassified an an Firearm made from a Rifle, and would - by law - be subject to the tax stamp requirement. Thus, if a pistol could be legally redefined as a rifle, it could never subsequently be legally redefined as a pistol.

I see your logic there, but I don't agree that the Court or the BATFE would view it that way. In fact, in the 2011 BATFE letter which clarified that it IS lawful to convert a pistol to a rifle and back again, they used that language: "Held further, a firearm, as defined by 26 U.S.C. 5845(a)(3) and (a)(4), is not made when a pistol is attached to a part or parts designed to convert the pistol into a rifle with a barrel of 16 inches or more in length, and the parts are later unassembled in a configuration not regulated under the NFA (e.g., as a pistol)."

Doesn't answer our questions here absolutely, but I think it's pretty instructive.

 

[ngnrd]

Given the nature of the language in your citations, those are certainly fair criticisms of my logic. I'll have to ponder this for a while...

Although, citing the ATF letter that 'clarifies' the issue is a little like saying you believe that the chickens are safe because the fox guarding the hen house told you it was so.

I do agree that this is a thin straw to clutch. But, if we cannot rely on the clear definitions as given in the law, how can we rely on the law at all for guidance? It's simply not appropriate for a regulatory agency to ignore the given definitions of the words used in the body of the law that they are tasked to regulate. If there were no such definition included in the text of the law, they could certainly use a more common meaning, and my position would be entirely invalid. But a definition IS provided in the text of the law. Should they simply ignore that definition because it does not suit their purposes, or because it makes regulating something else a bit harder?

 

[danez71]

...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".

Oh my.

Ok. How about:

Cough syrup
Sudafed
Whiteout
Canned Air
Household cleaning products
Spraypaint
Fertilizer
Vehicles
Knives
Your own personal real-property

And the list goes on and on and on...


What does .gov think of those are used as not intended or designed; particularly when they already have laws against what you're trying get around?

It seems that many here blinded by the trees that they cant see the forest.

The concept of regulating how a legal product is allowed to be used is nothing new.

 

[Sam1911]

Although, citing the ATF letter that 'clarifies' the issue is a little like saying you believe that the chickens are safe because the fox guarding the hen house told you it was so.

Ehhyeah, that's probably true. Does the ATF really have secret desires to restrict everything they can get away with? I try not to see them as the enemy arbitrarily and make myself (against my gut reaction, usually) try to figure out the law they're supposed to be enforcing as though I wasn't a gun nut, but a federal bureaucrat who landed a job in (just say) the Federal Washing Machine Bureau and was handed a book and told to enforce those laws concerning a product I really couldn't care less about.

That's why I was so surprised about the US vs. Thompson Center decision and the (decade later) interpretation adjustment that abandoned the "once a rifle" distinction. As much as I HATED it, the law did say if X is a rifle, you can't make a short-barreled firearm out of it, even if it comes out looking like a pistol. If they're just flat out enforcing the law, that's "friggin'" what it says. Dang it. Can't argue that a TC Contender that you stuck a long barrel and a stock on ISN'T a rifle. It is. And the law says... SO, I was very pleasantly surprised that the Court disagreed with me. Because it let me stop secretly suspecting that the BATF was RIGHT!

I do agree that this is a thin straw to clutch. But, if we cannot rely on the clear definitions as given in the law, how can we rely on the law at all for guidance? It's simply not appropriate for a regulatory agency to ignore the given definitions of the words used in the body of the law that they are tasked to regulate. If there were no such definition included in the text of the law, they could certainly use a more common meaning, and my position would be entirely invalid. But a definition IS provided in the text of the law. Should they simply ignore that definition because it does not suit their purposes, or because it makes regulating something else a bit harder?

But we all know the definitions are contradictory and self-conflicting. They have to figure out someway to enforce this law and their duty is to figure out what way makes the most sense and seems to conflict least.

If you have one law that says, "X is a pistol," and you have another law that says "any rifled gun you add a device for shouldering to is a rifle" then which rules? Does "X is a pistol" remain inviolate if you then do what the second clause says and add a stock to it? Somebody's got to decide and if we the people think they've decided wrong about that, we'll have to fight it. But the Court always has the option of simply saying, "nope, not a big enough fish to fry" and not bothering to hear the case. They do that 100:1 anyway with cases they could hear, so it's safe to assume that it will be a LONG time...if ever ... before anyone will get their word on this. And until then, the ATF gets the run of the field.

 

[Ohio Gun Guy]

Weather or not they are tasked with it... It sure does seem like they are acting so as to limit or undermine firearms ownership; and encroaching on their otherwise legal use.







See definition of Infringed.

 

[barnbwt]

Maybe this is a quantum problem, like electron spin. A firearm (lower case) can be a pistol, a rifle, or both at the same time --a pistol configured legally as a rifle (as decided by the T/C court case). It is the transition from rifle to 'other' that the non-consistent language of the NFA treats differently. Which makes sense in that 'standard' rifles and shotguns were originally to be the only non-taxed arms left standing in the country.

I seriously doubt this was a "conspiracy" one hundred years in the making; I think it's pretty obvious that the law was 'intended' to enforce the various configurations in parallel, since that is how a regulation would logically be constructed. But, most likely due to the late-game finagling of the pistol tax's removal from the statute, the oddball language was left behind.

It makes a bit more sense for pistols to always remain pistols if you consider they were supposed to be treated like the same kind of contraband as SBRs and machine guns

That's the only rational explanation for the way the law is written that makes any sense to me. And it isn't a very satisfying one, either.

"Does the ATF really have secret desires to restrict everything they can get away with?"
Doesn't matter, the result is the same. Executive overreach and bureaucratic abuse are both lazy, stupid solutions to the difficult problems faced by the relevant humans, and Hanlon's Razor then comes into full effect. At least if it were a vast conspiracy, I'd feel better knowing I was being lorded over by people competent enough to pull one off (heck, I might even agree they deserve to be in charge if they can run that tight a ship ).

I have to wonder if the "proper solution" to this whole was would have been for the ATF to grow a pair and tell congress their law-making skills suck, and that the statute can't be enforced as written. But they don't dare let go of that bit of power they were promised in those incoherent crayon-scribblings of 1934...

TCB

 

[1911 guy]

It doesn't matter what the average ATF agent thinks about guns or restricting them. What matters is how the administration in power at that time tells them to enforce. Same with any other government agency. Someone gets put in charge as a favor, that someone directs the rank and file. The rank and file just carry out duties as directed. Of course they are directed by someone who is paying back a favor.

 

[Sam1911]

I get that, about how the top brass knows what its administration likes in terms of gun laws in general. I'm not willing just yet to say there's a conspiracy, or really any wrong-doing at all, in interpreting the NFA they way they have. I REALLY don't LIKE it. But their reading of it seems grounded in logic just as valid as "ours."

 

[CoalTrain49]

Having worked for the gov't I can tell you this. I worked in a small group that had very little contact with managers and supervisors. Our jobs were 100% field assignments. Most of the time we operated on our best judgement and were given "operational discretion" because a call to a supervisor wasn't possible. I thought I was on solid ground a few times but ended up being reprimanded. Some policy doesn't even make it all the way down the chain and some of it is just ignored. Just because it is written doesn't make it 100% enforced or even enforceable.

A lot of scenarios here but most of them are not realistic given what I know about how things work inside a gov't agency. Most people would be shocked.

 

[hso]

There are numerous examples in court cases where knives were treated as weapons where the real design as opposed to the use (folder carried open) made the difference between the case being won for the defendant or even thrown out. The "redesign" argument would be subject to those sorts of challenges where the court ruled that the fact that a knife was used in a particular way did not make it a dirk or dagger.

We may see these arguments used in a challenge to this sort of interpretation of design that this open letter uses.

 

[armoredman]

danez71, just to answer your question very quickly, let me say I've SEEN inmates on "bath salts" and "spice", both synthetic products, and very deadly junk. Yes, there are hundreds of household items that can be misused in a way that can cause death or serious bodily injury, and when they are misused deliberately, the person misusing them can be prosecuted for the action, such as huffing spray paint, throwing bleach in someones' eyes, feeding kids rat poison, etc., but it really doesn't fall under the same purview as the ATFE with NFA, since NFA '34 is very specifically designed to keep certain firearms with certain characteristics out of the hands of the common man. Be VERY thankful that the COST of the tax stamp was clearly defined, and not increased with inflation - according to one calculator, that would make a tax stamp just over $3,500 today.

 

[Swing]

There is an interesting case that is tangentially related: Controversial Gun Industry Brace Results in Short Barreled Rifle Charges

Cliff Notes version: Couple a punks did a home invasion, were busted, and were caught with a Sig Brace equipped AR. Now they are going to going to try to tack an SBR charge on top of the other. However, this is California's SBR law, not the Federal statutes. Still, it does involve the Brace, so I thought I'd pass it along.

 

[armoredman]

duded, the original NFA also had ALL handguns included in the law....now wouldn't that make life interesting...

 

[USAF_Vet]

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

Because there is precedent set and a course of action to un-SBR a firearm. And it seems to be as simple as reconfiguring the gun to either a pistol or a rifle, and notifying ATF that the gun is no longer a title II weapon. That's the permanent course. I'm sure it's probably a little more involved than that, but the basic premise is sound.

The temporary way to un-SBR your SBR is to install a 16"+ barrel. It's still got a tax stamp, but it's a lawful title I weapon in that configuration, able to transport over state lines and into NFA restrictive states.


To make the decision of 'once an SBR, always an SBR' would go against long standing policy.

 

[Sam1911]

And it seems to be as simple as reconfiguring the gun to either a pistol or a rifle, and notifying ATF that the gun is no longer a title II weapon. That's the permanent course. I'm sure it's probably a little more involved than that, but the basic premise is sound.

Not even that. No notification to the BATFE is required. Just change it and you're good.

 

[HankB]

Because there is precedent set and a course of action to un-SBR a firearm. And it seems to be as simple as reconfiguring the gun to either a pistol or a rifle, and notifying ATF that the gun is no longer a title II weapon. That's the permanent course. I'm sure it's probably a little more involved than that, but the basic premise is sound.

Not even that. No notification to the BATFE is required. Just change it and you're good.

Are you asserting that this also applies to an unregistered, contraband SBR, as in a SIG-braced pistol that is not registered as an SBR, that someone holds the wrong way?

 

[armoredman]

There's a thought...make and unmake, in a second. So can you now be held liable for creating an NFA weapon that no longer exists?

 

[HankB]

There's a thought...make and unmake, in a second. So can you now be held liable for creating an NFA weapon that no longer exists?

Well, if you made the unregistered, contraband NFA weapon by holding it the wrong way, and if lowering it from your shoulder unmakes the unregistered, contraband NFA weapon you made earlier . . . did you just destroy evidence?

You know, all this sounds downright Kafkaesque - and it's driven by the Feds' contention that holding a legal firearm the wrong way is felonious.

If the BATmen ever bring a case to trial based on this, the courtroom arguments should be very entertaining. (And no, I'm not volunteering to be a test case.)

 

[Sam1911]

Yup. It sure gets to be convoluted. So many corners of debate in this question that have to be worked out before a decision can be comprehensively reached. Just sorting out definitions of all the various terms that will be controlling is going to take many pages, I'm sure. (As it literally gets all the way down to Clinton-esque questions of defining what "IS" is.)

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.