this might be good news, ATF took it too far

[gunsmith]

    I think the  ATF has been banning frames and receivers and parts/kits  , I knew it was totally unconstitutional and have not followed it closely .
 Some cool company out there sued, won.
 IANAL but this looks like good news

WOW!!! Judge DESTROYS ATF Frame/Receiver Rule! Says It's Facially Unlawful!!

[/b]
https://www.youtube.com/watch?v=a8AMKi1Mo28

[230RN]

Yay!  Now let's get a GCA NFA* 34 case in front of that judge.

Dream on, Terry... dream on.

Terry, 230RN

* Oops, thanks bedlamite.  They all look the same to me.

[RoadKingLarry]

Judge O'Conner did not kill himself.

[bedlamite]

Yay!  Now let's get a GCA NFA34 case in front of that judge.

Dream on, Terry... dream on.

Terry, 230RN

FTFY, and I really hope Matt can take care of that:

https://www.youtube.com/watch?v=ltlS6zBZEuo

[dogmush]

This is a start, and good.  Not just the ATF (although that's where my interests lie) but the executive branch in general is a little to free with "rule making".  I blame Congress as much as the agencies.  They were all too happy to abdicate their power so as to never have to take a stand, but it's well out of hand.  West VA. v EPA is hopefully the start of that.


Sadly, I think the pistol brace rule is doomed, as the vast majority of users are in fact using the braced "pistol" as an SBR.  We just need to convince a court that an M4 is protected under the 2A as the obvious arm of the militia.

[Hawkmoon]

Link to the decision: https://assets.nationbuilder.com/firearmspolicycoalition/pages/6573/attachments/original/1662145028/VanDerStok_v_Garland_Order_on_MPI.pdf?1662145028

The  Final  Rule’s redefinition of “frame or receiver” conflicts with the statute’s plain meaning. The definition of “firearm” in the Gun Control Act does not cover all firearm parts. It covers specifically “the frame or receiver of any such weapon” that Congress defined as a firearm. 18  U.S.C. §921(a)(3)(B). That which may become a  receiver is not itself a receiver. Congress could have included firearm parts that “may readily be onverted” to frames or receivers, as it did with “weapons” that “may readily be converted” to fire a projectile. But it omitted that language when talking about frames and receivers. “[W]hen Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Collins  v. Yellen, 141 S. Ct. 1761, 1782 (2021) (citation  and internal quotation  marks  omitted). Likewise, when Congress uses a phrase in one part of a definition and excludes that phrase from another part of the very same definition, courts should give effect to Congress’s deliberate exclusion.

[Perd Hapley]

We just need to convince a court that an M4 is protected under the 2A as the obvious arm of the militia.

Very much so.

[Hawkmoon]

Don't celebrate yet. This isn't a decision -- it's only an injunction preventing the ATF from applying their new definitions in the territory encompassing the Fifth Circuit until the lawsuit can be heard.

That said, it's a well-reasoned order, and might even have provided the plaintiff's attorneys with some references for their use when it gets to trial.

[HankB]

As far as the ATF going too far, rumor has it the ATF is looking for additional funding to process a "registration amnesty" for braced pistols later this year - they're now going to be retroactively redefined as SBRs.  Estimates are that somewhere north of 4,000,000 firearms will be affected. If true, this retroactively invalidates all the previous ATF letters to both manufacturers and individuals stating that braced pistols were NOT SBRs.

https://www.ammoland.com/2022/09/atf-pistol-brace-amnesty-registration-program/

This could be a real problem for those living in states that allow pistols but not SBRs. No word on whether or not removing the brace will exempt the subject firearm from these new requirements.

I expect court fights - as does, no doubt, the ATF. But they have effectively unlimited funds to pay lawyers, so they don't care.

[230RN]

We just need to convince a court that an M4 is protected under the 2A as the obvious arm of the militia.

Indeed, very much so.

The  Final  Rule’s redefinition of “frame or receiver” conflicts with the statute’s plain meaning. The definition of “firearm” in the Gun Control Act does not cover all firearm parts. It covers specifically “the frame or receiver of any such weapon” that Congress defined as a firearm.

Which  is exactly why I've been bellyaching for years about "our" usage of the terms "upper receiver" and "lower receiver."  It lends credence to the notion that both parts are firearms and need serializing and  4473s.

We ourselves are stepping on our own feet on that one.

Terry, 230RN

[dogmush]

As far as the ATF going too far, rumor has it the ATF is looking for additional funding to process a "registration amnesty" for braced pistols later this year - they're now going to be retroactively redefined as SBRs.  Estimates are that somewhere north of 4,000,000 firearms will be affected. If true, this retroactively invalidates all the previous ATF letters to both manufacturers and individuals stating that braced pistols were NOT SBRs.

https://www.ammoland.com/2022/09/atf-pistol-brace-amnesty-registration-program/

This could be a real problem for those living in states that allow pistols but not SBRs. No word on whether or not removing the brace will exempt the subject firearm from these new requirements.

I expect court fights - as does, no doubt, the ATF. But they have effectively unlimited funds to pay lawyers, so they don't care.

Yes and no. That's not quite what the rule says.  You could have a firearm with a pistol brace on it that is still a pistol. The new rule doesn't invalidate the pistol brace letters. What the new rule does do is make clear that having an installed pistol brace in conjunction with some other things constitutes "redesigning " the pistol into a firearm intended to be shot from the shoulder.

As to the take it off question,  those answers already exist. If you take off the combination of parts that makes the gun an SBR prior to the rule taking effect, no harm no foul. If the reciever started life as a rifle, and you make it an SBR by adding parts after the rule is in effect,  it's always an SBR. If it started life as a pistol or other it can go back and forth between rifle and pistol, but you need to install a >16" barrel before you install the stock (or brace + other accessories)

The proposed rule has a checklist and point system to determine if your particular weapon configuration with a pistol brace is a pistol or SBR, but it's convoluted enough I'm not going to try and explain it.

[Pb]

Adding braces to the NFA is going to make the tax stamp wait even more obscene. 

[Pb]

The proposed rule has a checklist and point system to determine if your particular weapon configuration with a pistol brace is a pistol or SBR, but it's convoluted enough I'm not going to try and explain it.

Yeah... and if the brace complies with their stupid point system, the BAFE still reserves the right to declare your gun an illegal SBR anyway.

[HankB]

Yes and no. That's not quite what the rule says.  You could have a firearm with a pistol brace on it that is still a pistol. The new rule doesn't invalidate the pistol brace letters. What the new rule does do is make clear that having an installed pistol brace in conjunction with some other things constitutes "redesigning " the pistol into a firearm intended to be shot from the shoulder.

As to the take it off question,  those answers already exist. If you take off the combination of parts that makes the gun an SBR prior to the rule taking effect, no harm no foul. If the reciever started life as a rifle, and you make it an SBR by adding parts after the rule is in effect,  it's always an SBR. If it started life as a pistol or other it can go back and forth between rifle and pistol, but you need to install a >16" barrel before you install the stock (or brace + other accessories)

The proposed rule has a checklist and point system to determine if your particular weapon configuration with a pistol brace is a pistol or SBR, but it's convoluted enough I'm not going to try and explain it.

The ATF has already said that doing something like modifying an approved brace MAY effectively create an SBR. What's leaking out now suggests ATF may be getting ready to put forth something that goes well beyond that soon - December is the expected time frame. The checklist and point system seem to result in nearly all braced pistols being redefined to be SBRs. ATF has already indicated that should a braced pistol somehow "pass" their point system checklist, they may determine it's an SBR anyway. The future status of firearms originally sold as braced pistols (e.g., CMMG Banshee) as of right now is uncertain - ATF may creatively reinterpret them to be "unregistered SBRs" and following the "once an SBR, always an SBR" rule decide they need to be registered under an amnesty whether you take the brace off nor not.

Lots of speculation right now - we really don't KNOW for sure what they're going to do.

[dogmush]

Their status is not uncertain at all. If the proposed rule goes into effect, and the weapons have pistol braces installed on the effective date, they are SBRs.

The proposed rule pretty clearly attempts to make any pistol brace configuration that would be useful from the shoulder into an SBR while leaving the original "stated" use of strapping the gun to your forearm as legal.  That's why I said it doesn't revoke the letters that SB Tactical  et. al. recieved. Those letters were all predicated on the "strap pistol to your forearm" use case.

The ATF has already said that doing something like modifying an approved brace MAY effectively create an SBR. What's leaking out now suggests ATF may be getting ready to put forth something that goes well beyond that soon - December is the expected time frame.

Nothing is "leaking" out now. The notice of proposed rule change, and the text of that rule have been public for months. In fact, it was originally going to take effect last month and the ATF pushed the effective date to Dec to try and beef up the eforms site.  The only New info recently is that ATF is considering an amnesty on the Form 1s for a braced weapon so that it won't cost you $200 to register them.

Lots of speculation right now - we really don't KNOW for sure what they're going to do.

We know exactly what they are going to do.

Here: https://www.atf.gov/rules-and-regulations/factoring-criteria-firearms-attached-stabilizing-braces
Proposed Rule 2021R-08 in it's entirely is linked from that site. There's no leaks, and the ATF is crystal clear on what they are attempting to do:. If you have a praced pistol that is set up so that it can be effectively fired from the shoulder, that's an SBR.

[Ben]

Given that this is a rule rather than a law, what would it take for (e.g.) DeSantis to put the kibosh on it in 2024?

[RoadKingLarry]

Given that this is a rule rather than a law, what would it take for (e.g.) DeSantis to put the kibosh on it in 2024?

 
Be a neat trick indeed since the people that count the votes aren't going to let him win.

[WLJ]

Be a neat trick indeed since the people that count the votes aren't going to let him win.

It's not election fraud if they're changing the election outcome to what it should be.

[dogmush]

Given that this is a rule rather than a law, what would it take for (e.g.) DeSantis to put the kibosh on it in 2024?

I am not 100% sure of exactly the process once the rule is posted to the federal register. 
For it to be an executive function, I suppose the President could order the ATF to come up with a new rule undoing this. The new rule then it would have to go thorough the rule-making process (Notice of proposed change, public comment period, updated proposed rule, wait time, publish to register)

This should more correctly be a legislative function, but the legislature has had decision paralysis for years and seems unlikely to recover any time soon.

The rule could be challenged in court, but unlike the frame and receiver rule I suspect the ATF is correct in their analysis that most of the pistol braces sold "redesign" the pistol to be fired from the shoulder, and the SBR definition (unlike the frame and receiver definition) is spelled out in the relevant legislation.  I think we'd have better luck challenging SBR's inclusion in the NFA itself under Miller (weapons that have a reasonable relationship to the effectiveness of a well-regulated militia ... are free from government regulation.) and/or Heller (weapons in common use are protected) and that's probably a long shot.

[Pb]

Given that this is a rule rather than a law, what would it take for (e.g.) DeSantis to put the kibosh on it in 2024?

Of course he could.  Just order the BAFE to change their ruling.  Just like a President could order the BATFE to give us a rational interpretation of the "sporting purpose clause" and allow foreign evil black rifles to be imported.  Is there any reason to think a Republican President would do so?

No.

Trump was the most "pro-gun" (in that he did not support an AWB) president since JFK and he did nothing for gun owners using his executive power.  His only executive use of gun related power that I can recall was screwing over people that owned bump stocks.

Presidents could do quite a lot for gun owners using executive power, but none of them ever have done so.  Ever!

[kgbsquirrel]

I am not 100% sure of exactly the process once the rule is posted to the federal register. 
For it to be an executive function, I suppose the President could order the ATF to come up with a new rule undoing this. The new rule then it would have to go thorough the rule-making process (Notice of proposed change, public comment period, updated proposed rule, wait time, publish to register)

This should more correctly be a legislative function, but the legislature has had decision paralysis for years and seems unlikely to recover any time soon.

The rule could be challenged in court, but unlike the frame and receiver rule I suspect the ATF is correct in their analysis that most of the pistol braces sold "redesign" the pistol to be fired from the shoulder, and the SBR definition (unlike the frame and receiver definition) is spelled out in the relevant legislation.  I think we'd have better luck challenging SBR's inclusion in the NFA itself under Miller (weapons that have a reasonable relationship to the effectiveness of a well-regulated militia ... are free from government regulation.) and/or Heller (weapons in common use are protected) and that's probably a long shot.

How can the AFT be right about anything when their very existence is to violate an enumerated right?

[Perd Hapley]

Presidents could do quite a lot for gun owners using executive power, but none of them ever have done so.  Ever!

Trump rescinded Obama's rule about the VA reporting those with disabilities to the NICS. Would that count?

[dogmush]

How can the AFT be right about anything when their very existence is to violate an enumerated right?

Not sure if serious.

The ATF didn't write the NFA, and their interpretations of the various iundefined portions of it is usually a coin toss. But setting aside the "executive branch rule-making" farce that they love so much, in this case I think they are interpreting the language of the NFA how Congress meant it. As opposed to the forced reset trigger, where they are ignoring the plain text to do what they want.

[HankB]

. . . You could have a firearm with a pistol brace on it that is still a pistol. The new rule doesn't invalidate the pistol brace letters. What the new rule does do is make clear that having an installed pistol brace in conjunction with some other things constitutes "redesigning " the pistol into a firearm intended to be shot from the shoulder. . . .

IANAL so help me understand this . . . if the new rule does not invalidate the pistol brace letters, is it your contention that a braced pistol in exactly the configuration shipped from the manufacturer under the aegis of an ATF letter with no subsequent alterations will NOT be recategorized as an SBR?

[dogmush]

There are way too many variations to answer that. I would say read the rule, it lays out what is likely to be an SBR.

I would also add that as far as I know most all of the guns sold with factory braces don't themselves have a letter, but rather were sold under the letter that the brace alone recieved and was operating under. That is the letter i was commenting on that is not invalidated. A brace by itself, or installed on a pistol in a way that doesn't redesign the pistol to be fired from the shoulder isn't itself, nor does it make the pistol, an SBR.

I suspect that factory rifles like an MCX or a CMMG Banshee will indeed be squarely in the SBR territory,  although it might depend on your optics choice.

As someone that owns several braced pistols that are about to become SBRs I am concerned with this rule, and have spent quite some time figuring out what it does and does not say.