When is a silencer a silencer?

[Elkins45]

Or, since the two are similar enough that they’d always be functionally interchangeable, is the real answer that the manufacturer’s intent doesn’t really mean as much as I think it should mean in a legal sense?

I think this is the understanding that ATF is operating under.

Regardless of the legal distinction that you correctly understand and have restated, the only way it will ever be tested is if someone abuses it, most likely by slapping the silencer onto a modern gun. Once that happens then good luck with proving it isn’t designed to be used on a firearm, given that it would work well in that role without any sort of repurposing modification other than making the mount fit.

 

[JohnKSa]

So what you’re saying is that if you could somehow prove that the device isn’t designed to be used on a firearm, then you’d have a strong argument that it isn’t legally a silencer?

If you could prove that the device isn't designed to be used on any sort of a "projectile dispenser" then you'd have a pretty strong argument. For example, if you could show that the device is a lawnmower muffler and can't be used as a silencer for a firearm without being adapted to work, or if you could show that the device is a commonly available oil filter for a car and there's no intent to adapt it to reducing the report of any sort of a projectile dispenser then it would probably be a non-issue from the BATF's perspective.

But the idea that a silencer made for a muzzle loader or airgun but that will still work on a firearm is going to be unregulated just because the person who possesses it SAYS it's for a muzzle loader or airgun isn't going to fly. Oddly enough, people caught with their hand in the cookie jar often claim that they're innocent and come up with creative explanations to support their claim. This means that the justice system tends to be very skeptical about such claims.

If the item is a silencer then it MUST be permanently attached to something other than a firearm to gain unregulated status.

And either I’m not doing a good job getting my current point across, or I’m being exceptionally obtuse.

Your point is abundantly obvious. It's not at all hard to understand what you are asking, and you've been given accurate and clear answers as well as lengthy explanations and good examples. As far as I can tell, the only problem you're having is that you're not getting anyone to agree with you.

What makes a silencer legally not a silencer? PERMANENT ATTACHMENT to something that is not a firearm.

What is an unregistered silencer that is made specifically for a muzzle loader but that is NOT PERMANENTLY ATTACHED to a muzzle loader? A federal felony.

If a part is removed from a silencer, what is it? It is legally a silencer. What if the silencer it came from is permanently attached to a non-firearm? It doesn't matter because silencer parts are regulated as silencers if they are not permanently attached to a non-firearm..

What is an oil filter? It is an oil filter unless it has been adapted, or there is clear intent to adapt it to be a silencer.

What is a lawnmower muffler? It is a lawnmower muffler unless it has been adapted, or there is clear intent to adapt it to be a silencer.

I don’t find this terribly complicated to understand.

Because it's not.

Then you should be able to answer the questions I posed in my previous post.

Go back to my 2 silencer example and study it. It will make this situation very easy to understand.

...let’s forget about the whole permanent attachment part...

It is not possible to discuss this intelligently or accurately without focusing on the "permanent attachment part". Like it or not, that is the crux of the matter.

Let’s pretend this item is made by a separate company whose only product is this moderator that’s specifically designed and intended solely for use on a muzzleloader.

Let's restate this.

Hey, BATF, this thing that looks like a silencer, works like a silencer, and is, in fact, a silencer, shouldn't be regulated as a silencer because I make and sell them and I say they're not silencers.

It doesn't take a lot of thought to understand why it would be totally untenable from the BATF's perspective to accept that kind of an assurance.

Basically it would mean that anyone could make and sell unregulated silencers as long as they claimed they were only for muzzle loaders or airguns AND that it would be legal for anyone to purchase and possess unregulated silencers as long as they claim that they are only going to be used for muzzle loaders or airguns, or aren't going to be used at all.

...the only way it will ever be tested is if someone abuses it, most likely by slapping the silencer onto a modern gun.

It is not necessary to attach a silencer to a firearm to be prosecuted for having an unregistered silencer.

Merely possessing an unregistered silencer is a federal felony--even if it is not attached to a firearm. Even if you have no firearm to attach it to. The ONLY thing that makes possession of an unregistered silencer legal is if the unregistered silencer is permanently attached to something that is not a firearm.

 

[Theohazard]

...let’s forget about the whole permanent attachment part...]

It is not possible to discuss this intelligently or accurately without focusing on the "permanent attachment part". Like it or not, that is the crux of the matter.

I disagree. It’s only the crux of the matter if we start our discussion by assuming that this is a silencer, as you have done. But my several recent posts were simply asking for the legal basis for calling this a silencer in the first place.

If we assume this is a silencer, then I completely understand the need for permanent attachment. But I’m asking for the legal basis for your claim that this is legally considered a silencer to begin with, I’m not asking for the legal basis of why a silencer needs to be permanently attached to a non-firearm in order to not be regulated. I’ve already said repeatedly that I completely understand the latter part.

I blame myself for being unclear at times and for often changing my rhetorical arguments, but as a result you and others have repeatedly misunderstood the point of my posts. I’m trying to understand the specific legal reasoning for this item being considered a silencer, since by the specific wording of federal law, it doesn’t meet the actual definition of a silencer.

Both your and Elkin’s last posts seem to indicate that it’s legally considered a silencer simply because it’s so close in resemblance and function to a real silencer. And your points seem to be that while an item not designed to muffle the report of a firearm theoretically wouldn’t be consider a silencer per strict reading of federal law, if that item had a similar enough design to an actual firearm silencer, then the intent part wouldn’t really matter; if it looks like a silencer and performs like a silencer, then it’s a silencer, even if its manufacturer claims otherwise. I suppose the legal principle I was missing here is that the law often comes down to a judgment call; the line between a silencer and a non-silencer is more of a spectrum than a clear line.

I can accept that. I was simply asking which it was I was misunderstanding: the wording of the federal law itself or the way that law is applied. It seems the latter is the case, and that makes sense since I have no legal training.

 

[Nuclear]

That's never been a "Ruling" by ATF.
The companies that ATF shut down were clearly selling parts intended to be used in homemade "solvent trap" type silencers. I believe one even called some parts replacement parts for your silencer.


Of course Home Depot isn't selling silencer parts. The fact that some items found on the shelf at Home Depot can be used to make a homemade silencer doesn't change what the original intended use is. Use that item to make something regulated by Federal law? Better pay the tax.

You are right, there was no ruling from the BATFE, they simply acted. I went to one of those websites before the BATFE shut the companies down (yeah, I am probably on a government watch list of some kind now, but I probably was before, and will be until I die, I suspect) to see how they were getting away with selling silencer kits, and found they were selling things (flashlight bodies, rear caps, freeze plugs, washers, etc.) that weren't silencers or even silencer parts until you did some metal work on the parts and put them all together.

But as you pointed out in:

"Title 18 Chapter 44 921 Definitions:
(24) The terms ‘‘firearm silencer’’ and ‘‘firearm
muffler’’ mean any device for silencing, muffling,
or diminishing the report of a portable
firearm, including any combination of parts, designed
or redesigned, and intended for use in assembling
or fabricating a firearm silencer or
firearm muffler, and any part intended only for
use in such assembly or fabrication."

intent apparently can get you put in federal prison for a collection of hardware / auto store parts and tools without even putting them together.

 

[JohnKSa]

But my several recent posts were simply asking for the legal basis for calling this a silencer in the first place.

Unless it is permanently attached to something that is not a firearm, the BATF will consider it a silencer by the legal definition. The idea that what you call something or a simple claim that it is not a silencer changes the facts is unrealistic in the extreme. The person caught holding an unregistered silencer does not get a vote as to whether or not what they have done is illegal, the evidence will be the determining factor.

And your points seem to be that while an item not designed to muffle the report of a firearm theoretically wouldn’t be consider a silencer per strict reading of federal law, if that item had a similar enough design to an actual firearm silencer, then the intent part wouldn’t really matter; if it looks like a silencer and performs like a silencer, then it’s a silencer, even if its manufacturer claims otherwise.

How could it possibly be otherwise? If the BATF shows up while someone is holding an unregistered silencer in their hand and the person tells them that it's not a silencer because it's for a muzzle loader they are not just going to walk away and leave that person alone. The law would be meaningless and enforcement would be impossible unless they actually caught someone shooting a firearm with a silencer attached. Even attaching it to a firearm wouldn't be sufficient for prosecution because the person could just say that they didn't intend to fire the gun while the silencer was attached.

Both your and Elkin’s last posts seem to indicate that it’s legally considered a silencer simply because it’s so close in resemblance and function to a real silencer.

If it will work on a muzzle loader then it will work on a firearm too--there's really no room for debate on that subject.

It's legally considered a real silencer because it IS a real silencer. It looks like a silencer, it works like a silencer, examination will reveal that it is designed and intended to silence the report of a firearm. It meets any realistic definition of a silencer including the legal one.

The only thing that will exempt it from regulation is permanent attachment to a non-firearm--that is the evidence that the BATF will accept as proof that it is not intended to be used on a firearm and therefore does not meet the legal definition. That is, in fact, the ONLY evidence that BATF will accept as proof that a silencer shouldn't be regulated.

I blame myself for being unclear at times...

It's not a matter of being unclear, it's a matter of rejecting the provided answers. What's really frustrating is that you demonstrated an accurate understanding of the permanent attachment issue in post #19 on the first page of this thread but then something apparently happened...

...I have no legal training.

Legal training is not required; it's simply a matter of thinking it through from the perspective of enforcement and common sense. There's no reasonable way to enforce a law if a person caught breaking it can free themselves by simply saying that they didn't mean to break the law.

Intent is not simply a matter of what someone says they meant to do--if it were it would create an untenable situation for law enforcement. Intent is demonstrated by facts and evidence. In this situation, there is one way, and one way only to adequately demonstrate intent--by permanently attaching the device to a non-firearm.

 

[Odd Job]

This might help. See what the ATF said about suppressors for airguns and paintball guns (emphasis added by me):

Numerous paintball and airgun silencers tested by ATF’s Firearms Technology Branch have been determined to be, by nature of their design and function, firearm silencers. Because silencers are NFA weapons, an individual wishing to manufacture or transfer such a silencer must receive prior approval from ATF and pay the required tax.

[26 U.S.C. 5845; 27 CFR 479.11]

https://www.atf.gov/firearms/qa/are-paintball-andor-airgun-sound-suppressers-nfa-firearms

 

[Theohazard]

It's not a matter of being unclear, it's a matter of rejecting the provided answers. What's really frustrating is that you demonstrated an accurate understanding of the permanent attachment issue in post #19 on the first page of this thread but then something apparently happened...

What happened was that I wasn’t satisfied with the answers provided. Again, permanent attachment wasn’t my issue. And the common-sense reasoning used to decide that this is a silencer wasn’t the issue: My issue was simply wanting to know the specific legal reasoning used to come up with the determination that this is a silencer. Every answer provided seem to be using a common-sense explanation rather than a legal one. My apparent mistake was not realizing until a few posts ago that they’re one and the same.

Legal training is not required; it's simply a matter of thinking it through from the perspective of enforcement and common sense. There's no reasonable way to enforce a law if a person caught breaking it can free themselves by simply saying that they didn't mean to break the law.

From the little I understand of how the law (and the ATF interpretation of the law) works, common sense doesn’t always come into play. For example, look at the arm brace. Everyone knows those are basically SBRs, and pretty much everyone uses them as such. But, due to the ATF’s interpretation of federal law, they’re still considered pistols. I know this example doesn’t specifically mirror the situation in this thread, but my point is that “common sense” interpretations don’t always mesh with how the law works in the real world. But I suppose that in this case it does: Regardless of the stated intent of the manufacturer, it’s close enough in design to a purpose-built firearm silencer that it’s indistinguishable from one in a legal sense.

 

[JohnKSa]

What happened was that I wasn’t satisfied with the answers provided.

Yes, I commented on that. The problem is that dissatisfaction is not based on problems with the answers--they are accurate and to the point.

My issue was simply wanting to know the specific legal reasoning used to come up with the determination that this is a silencer.

The legal definition is quite clear if one looks at it from a real-world perspective. The perspective that a person can, simply by saying some words, contravene the law against unregistered silencers isn't realistic at all and that's what is causing confusion.

Again, permanent attachment wasn’t my issue.

We don't get to decide what the issue is or isn't when it comes to determining the legality of an unregistered silencer. THE issue IS permanent attachment. Without permanent attachment, a silencer (as determined by its obvious design and function, not by the claims of the person possessing or manufacturing it) must be registered. That is the bottom line--rejection of that fact does not change reality, it only contributes to confusion.

From the little I understand of how the law (and the ATF interpretation of the law) works, common sense doesn’t always come into play.

Common sense is, in fact, the primary principle at work here. Common sense says that the BATF won't take the word of a person who possesses an unregistered silencer when it comes to determining intent. They will, as common sense suggests, require evidence of intent and the only evidence of intent that will be accepted is permanent attachment to a non-firearm.

Regardless of the stated intent of the manufacturer, it’s close enough in design to a purpose-built firearm silencer that it’s indistinguishable from one in a legal sense.

It IS a purpose-built firearm silencer, so of course it is indistinguishable from one, not just in a legal sense but in EVERY sense. That can be changed, but only by permanently attaching it to a non-firearm.

The belief that intent can be established merely by saying some words isn't how things work in the real world. Evidence establishes intent. A person who makes/sells/possesses an unregistered silencer has, based on the evidence, intent to break the law and what they claim when caught, or in a vain attempt to avoid attention from LE, will be disregarded unless there is acceptable evidence to support their claims/statements. In this case, the only acceptable evidence is permanent attachment of the unregistered silencer to a non-firearm, and that will be true even in the case of offenders who don't believe, or don't wish to believe that fact.

 

[hk940]

What is ATF's exact definition of a silencer? I though it was any device that reduces report of a fire arm. Was the SIG MPX muzzle brake removable? I understand that the design of it would make easy to make it a silencer. What about a muzzle device that is permanently attached to the bbl.if that device was cut off and the report increased would it be considered a silencer?

What I am getting to is the muzzle device on the XM177e was ruled by the ATF as a silencer even though it had no removable baffles. I doubt it reduced the report to the level of a true silencer. If that were welded to the barrel, how would the ATF be able to measure any sound reduction

 

[dogtown tom]

What is ATF's exact definition of a silencer?

For the third time in this thread:
Title 18 Chapter 44 921 Definitions:
(24) The terms ‘‘firearm silencer’’ and ‘‘firearm
muffler’’ mean any device for silencing, muffling,
or diminishing the report of a portable
firearm, including any combination of parts, designed
or redesigned, and intended for use in assembling
or fabricating a firearm silencer or
firearm muffler, and any part intended only for
use in such assembly or fabrication.

I though it was any device that reduces report of a fire arm.

Yup.

Was the SIG MPX muzzle brake removable?

Wouldn't matter.

I understand that the design of it would make easy to make it a silencer. What about a muzzle device that is permanently attached to the bbl.if that device was cut off and the report increased would it be considered a silencer?

Does your imaginary muzzle device meet the definition above?
Seriously, reread your question.

What I am getting to is the muzzle device on the XM177e was ruled by the ATF as a silencer even though it had no removable baffles. I doubt it reduced the report to the level of a true silencer.

Reread the definition of silencer. No where does it mention reducing the level of the report to that of a true silencer....."any device for silencing, muffling,
or diminishing the report" means exactly what it says. the muzzle device on the XM177 did exactly that.

If that were welded to the barrel, how would the ATF be able to measure any sound reduction

You don't think ATF possesses a hacksaw?
ATF doesn't have to measure sound reduction. All they need to do is have Technical Branch testify that the device meets the definition of "silencer" in Federal law.

 

[hk940]

Well if the ATF were to cut a 26" bbl. to 10" and the report got louder, would the part cut off be considered a silencer?

 

[dogtown tom]

Well if the ATF were to cut a 26" bbl. to 10" and the report got louder, would the part cut off be considered a silencer?

No.
You seem to believe the barrel may be a silencer. It isn't.

The muzzle device ADDED to the XM177 is.

 

[Nuclear]

To be fair, people and companies frequently permanently attach flash hiders and compensators to the end of barrels to make the barrels meet the 16" minimum.

 

[JohnKSa]

Well if the ATF were to cut a 26" bbl. to 10" and the report got louder, would the part cut off be considered a silencer?

Absolutely not. It is known and understood by all that long barrels are quieter than short barrels. However a long barrel or a barrel extension is not a silencer regardless of how long it is or how quiet it is.

To be fair, people and companies frequently permanently attach flash hiders and compensators to the end of barrels to make the barrels meet the 16" minimum.

True, but not relevant. Barrel extensions, flash hiders and compensators are not silencers.

Was the SIG MPX muzzle brake removable?

The removable/permanently attached issue is only relevant when discussing a silencer that is attached to a NON-firearm. So removability was not an issue with the device you're asking about since it was being used with firearms.

What I am getting to is the muzzle device on the XM177e was ruled by the ATF as a silencer even though it had no removable baffles.

1. "Removable" baffles is not mentioned anywhere in the legal definition. Therefore the fact that baffles are permanent/non-removable is not relevant.

2. The device in question had baffles, but more to the point it was acknowledged/demonstrated by SIG to be part of a silencer and therefore met the BATF definition which includes silencer parts as being regulated as silencers. The fact that it could be used in a non-silencing configuration is not relevant to the legal definition.

This concept can be seen in the "adapters" which allow an oil filter to be attached to a firearm and used as a silencer. The adapters, even though they have no baffles and, in fact, have no sound-reducing capability at all, are still legally silencers since they are part of a silencer and therefore meet the legal definition of silencer.

 

[WestKentucky]

Question...

If one were to go about the process of working over a muzzleloader barrel to be the integral baffle stack, and said person were also to thread the barrel to accept a sleeve to close up the sound reducing device to make it functional, would said sleeve still be an illegal “part” if removal of the device was accomplished by destructive measures, like slicing it open with a dremel and therefore making it inoperable? This would seemingly be acceptable based upon the acceptable nature of the torched machine gun recievers and such since they were destructively made inoperable. If so then a person could relatively easily mark the barrel with a “cut here and don’t screw up your work” indicator.

 

[JohnKSa]

If one were to go about the process of working over a muzzleloader barrel to be the integral baffle stack, and said person were also to thread the barrel to accept a sleeve to close up the sound reducing device to make it functional, would said sleeve still be an illegal “part” if removal of the device was accomplished by destructive measures, like slicing it open with a dremel and therefore making it inoperable? This would seemingly be acceptable based upon the acceptable nature of the torched machine gun recievers and such since they were destructively made inoperable. If so then a person could relatively easily mark the barrel with a “cut here and don’t screw up your work” indicator.

Most of the second and third pages of this thread is a discussion of this question with the answer stated, restated, and explained multiple times, with examples provided.

Here's the short version:

1. A silencer that is not permanently attached to a non-firearm is subject to NFA regulation.

2. The definition of 'silencer' includes silencer parts. Therefore silencer parts that are not permanently attached to a non-firearm are subject to NFA regulation.

The sleeve is a silencer part that is not permanently attached to a non-firearm, therefore the BATF will almost certainly take the position that it is subject to NFA regulation.