ATF Released New Proposed Pistol Brace Rules

[K.Mooneyham]

Mr. Rothstein, I agree with the first part of what you wrote, 100%, and I won't argue against the second part, either. However, I'm sure you know that no law is any better than its enforcement. So what I am curious about is this: how many braced-type AR pistols do you think are out there right now? It has to be a pretty big number, six figures perhaps. Additionally, are law enforcement agencies in the State of Texas going to aid the BATFE in any significant manner to locate and arrest people who own AR pistols which might run afoul of those proposed rules? I understand the scenarios of "you get pulled over for a traffic stop on the way to the range and your now-illegal AR pistol gets you arrested", etc. But still, how practical is it for the BATFE to rely on such a strategy? And, if the number of AR pistols is a six-figure number, can they really jail even a significant proportion of those? All that said, what I'm getting at is that over-reach by a Federal agency might have more than one meaning, in this case, biting off more than they can chew. (Disclaimer, I don't own one of those, never could afford it compared to other things I wanted to purchase.)

Mr. Mooneyham, I believe you are correct that this law is effectively unenforceable on the vast number of braced AR pistols that exist right now. The ATF can only enforce that on people idiotic enough (I tried to think of a polite way to say that but I think that about describes it) to send their pistol to the ATF or local police for an evaluation. There is simply no way to enforce this against existing firearms now. The real question is if there is any way to enforce it against future firearms. I think ATF will be monitoring the market place and will go after the manufacturers of braces they feel violate their rules. Then they will get the list of the customers and will send them letters demanding they turn in the weapon (much like they just did with one company and its "autosear". I think the average gun owner is fairly safe from the ATF on this and it will primarily hurt manufacturers and some of them will end up in jail. But that will dry up the supply for future gun owners who want a braced pistol.

I think this proposal almost makes our legislature seem prescient. They did pass the bill, and I believe the governor will sign it, that stops state licensed peace officers from enforcing these laws or helping federal agents do so. I had not expected to see a benefit from it that quickly.

Now that you say it, I can easily see the law being used against future manufacture of AR pistols, I wasn't thinking of that avenue. And yes, I sure hope to see Governor Abbott sign that law, as well.

[Soccerdad1995]

Mr. Rothstein, I agree with the first part of what you wrote, 100%, and I won't argue against the second part, either. However, I'm sure you know that no law is any better than its enforcement. So what I am curious about is this: how many braced-type AR pistols do you think are out there right now? It has to be a pretty big number, six figures perhaps. Additionally, are law enforcement agencies in the State of Texas going to aid the BATFE in any significant manner to locate and arrest people who own AR pistols which might run afoul of those proposed rules? I understand the scenarios of "you get pulled over for a traffic stop on the way to the range and your now-illegal AR pistol gets you arrested", etc. But still, how practical is it for the BATFE to rely on such a strategy? And, if the number of AR pistols is a six-figure number, can they really jail even a significant proportion of those? All that said, what I'm getting at is that over-reach by a Federal agency might have more than one meaning, in this case, biting off more than they can chew. (Disclaimer, I don't own one of those, never could afford it compared to other things I wanted to purchase.)

Mr. Mooneyham, I believe you are correct that this law is effectively unenforceable on the vast number of braced AR pistols that exist right now. The ATF can only enforce that on people idiotic enough (I tried to think of a polite way to say that but I think that about describes it) to send their pistol to the ATF or local police for an evaluation. There is simply no way to enforce this against existing firearms now. The real question is if there is any way to enforce it against future firearms. I think ATF will be monitoring the market place and will go after the manufacturers of braces they feel violate their rules. Then they will get the list of the customers and will send them letters demanding they turn in the weapon (much like they just did with one company and its "autosear". I think the average gun owner is fairly safe from the ATF on this and it will primarily hurt manufacturers and some of them will end up in jail. But that will dry up the supply for future gun owners who want a braced pistol.

I think this proposal almost makes our legislature seem prescient. They did pass the bill, and I believe the governor will sign it, that stops state licensed peace officers from enforcing these laws or helping federal agents do so. I had not expected to see a benefit from it that quickly.

I'm confused as to how there could be any enforcement against manufacturers of pistol braces. A pistol brace, by itself, does not pass the prerequisites listed above ITT so you wouldn't even get to the scoring part of the test at all. As I read the proposed rule, the ATF is not claiming that this accessory by itself is a firearm, much less an SBR (this is different from their opinion that a "bumpstock" by itself is in fact a machine gun).

My understanding of the rule is that one only runs afoul of the tests here once the brace is attached to a firearm of some sort. As long as manufacturers are not selling a firearm that has a brace installed on it, they can't be selling an NFA item. But it is entirely possible that I do not fully understand the rule.

Also, as far as agency rules "clarifying" laws, I agree that executive agencies have zero authority to make laws. But I don't think that is what they are doing, either here or with the "bumpstock" rule. Instead, the agency is just saying "this is how we interpret the law", and in both cases ("bumpstocks" and braces) they are also saying "...and we think our previous interpretations of the law were incorrect". That is interesting, but it doesn't change the law at all. The law can only be interpreted and applied to a specific case by the judiciary, and until a judge and/or jury makes a ruling on what is or isn't a machine gun (in the case of "bumpstocks") or an SBR (in the case of braces), the ATF's interpretation of the law is just as valid as my interpretation of the law. The exception being that in both cases, the ATF is fully admitting that they have incorrectly interpreted these exact same laws before, which I would argue is pretty good evidence that they are incorrect now as well. Kind of like when a witness is caught in a lie and the opposing attorney argues that since they are an admitted liar, they are more likely to also be lying about XYZ now.

Again, I fully allow for the possibility that I am completely off base on this as well.

[srothstein]

I'm confused as to how there could be any enforcement against manufacturers of pistol braces. A pistol brace, by itself, does not pass the prerequisites listed above ITT so you wouldn't even get to the scoring part of the test at all. As I read the proposed rule, the ATF is not claiming that this accessory by itself is a firearm, much less an SBR (this is different from their opinion that a "bumpstock" by itself is in fact a machine gun).

My understanding of the rule is that one only runs afoul of the tests here once the brace is attached to a firearm of some sort. As long as manufacturers are not selling a firearm that has a brace installed on it, they can't be selling an NFA item. But it is entirely possible that I do not fully understand the rule.

Also, as far as agency rules "clarifying" laws, I agree that executive agencies have zero authority to make laws. But I don't think that is what they are doing, either here or with the "bumpstock" rule. Instead, the agency is just saying "this is how we interpret the law", and in both cases ("bumpstocks" and braces) they are also saying "...and we think our previous interpretations of the law were incorrect". That is interesting, but it doesn't change the law at all. The law can only be interpreted and applied to a specific case by the judiciary, and until a judge and/or jury makes a ruling on what is or isn't a machine gun (in the case of "bumpstocks") or an SBR (in the case of braces), the ATF's interpretation of the law is just as valid as my interpretation of the law. The exception being that in both cases, the ATF is fully admitting that they have incorrectly interpreted these exact same laws before, which I would argue is pretty good evidence that they are incorrect now as well. Kind of like when a witness is caught in a lie and the opposing attorney argues that since they are an admitted liar, they are more likely to also be lying about XYZ now.

Again, I fully allow for the possibility that I am completely off base on this as well.

I believe that the ruling must be intended to be used against manufacturers. As you point out, it will be tricky for brace manufacturers since it is nothing until it is added to a firearm, but the makers of the pistols themselves can be prosecuted. The ATF also has a long history of prosecuting people for making things "intended" to produce illegal weapons. If I understood the case correctly, the maker I referred to was selling a "coat hook", that is he sold a piece of metal he claimed was a small coat hook for hanging things on the wall. The ATF claimed that was a subterfuge and it was really intended to produce a fully automatic weapon. They raided the maker and took his files and did raid some of his customers homes to find the parts. I could be wrong on what he was selling and how because I generally do not follow that market area (I want a fully automatic rifle or three but not so badly that I would try to make it, even with a bump stock).

If you agree that there are too many AR pistols with braces for the ATF to try to arrest the owners now, then you have to ask yourself why they would make the rule. One of the basic principles of legislation is (or should be) never pass a law (or rule) that you do not intend to enforce or cannot enforce. It breeds contempt for the law in general and creates more problems than it is worth. Then you have to ask yourself who they intend to enforce this ruling on. Manufacturers is all I can come up with.

My problem with your feeling that it is okay to interpret the law is that it belongs to the courts to make that interpretation. That was the decision in Marbury v. Madison and I believe it is correct. But the courts have also adopted a policy of deference to agency interpretations, which makes the interpretations law making. Laws should be written clearly enough that the citizen can understand it without needing an agency to interpret it. Do you understand what a handgun is, as defined by the law? A Short-barrelled rifle? A machine gun? I understand the definition in the law very well and see no possible need for an interpretation by ATF. This is how you get stupid definitions like a bump stock is a machine gun. The law defines a machine gun as a weapon capable of firing twice with one pull of the trigger. How can a bumpstock fire at all to be classified as a weapon?

I said that the entire CFR is unconstitutional and that may be an overstatement. Agencies can and should adopt some rules, such as how to apply for a license for something. Procedural rules on how to work with the agency are fine as long as there is no penalty attached to a mistake. If I do not fill out the forms correctly and in the right order, my license gets denied but I cannot be fined or jailed. When a rule is adopted where you can be arrested for violating it, the agency is making law and not rules, in my opinion.

[The Annoyed Man]

I believe that the ruling must be intended to be used against manufacturers. As you point out, it will be tricky for brace manufacturers since it is nothing until it is added to a firearm, but the makers of the pistols themselves can be prosecuted. The ATF also has a long history of prosecuting people for making things "intended" to produce illegal weapons. If I understood the case correctly, the maker I referred to was selling a "coat hook", that is he sold a piece of metal he claimed was a small coat hook for hanging things on the wall. The ATF claimed that was a subterfuge and it was really intended to produce a fully automatic weapon. They raided the maker and took his files and did raid some of his customers homes to find the parts. I could be wrong on what he was selling and how because I generally do not follow that market area (I want a fully automatic rifle or three but not so badly that I would try to make it, even with a bump stock).

If you agree that there are too many AR pistols with braces for the ATF to try to arrest the owners now, then you have to ask yourself why they would make the rule. One of the basic principles of legislation is (or should be) never pass a law (or rule) that you do not intend to enforce or cannot enforce. It breeds contempt for the law in general and creates more problems than it is worth. Then you have to ask yourself who they intend to enforce this ruling on. Manufacturers is all I can come up with.

My problem with your feeling that it is okay to interpret the law is that it belongs to the courts to make that interpretation. That was the decision in Marbury v. Madison and I believe it is correct. But the courts have also adopted a policy of deference to agency interpretations, which makes the interpretations law making. Laws should be written clearly enough that the citizen can understand it without needing an agency to interpret it. Do you understand what a handgun is, as defined by the law? A Short-barrelled rifle? A machine gun? I understand the definition in the law very well and see no possible need for an interpretation by ATF. This is how you get stupid definitions like a bump stock is a machine gun. The law defines a machine gun as a weapon capable of firing twice with one pull of the trigger. How can a bumpstock fire at all to be classified as a weapon?

I said that the entire CFR is unconstitutional and that may be an overstatement. Agencies can and should adopt some rules, such as how to apply for a license for something. Procedural rules on how to work with the agency are fine as long as there is no penalty attached to a mistake. If I do not fill out the forms correctly and in the right order, my license gets denied but I cannot be fined or jailed. When a rule is adopted where you can be arrested for violating it, the agency is making law and not rules, in my opinion.

The problem with this new rule interpretation AND the worksheets it includes is that it can be used to prosecute BOTH manufacturers and private citizens. Corporations have deep pockets….deeper than mine, anyway……and since a corporation is an "individual", it will merely pay a fine if it persists, but it’s unlikely that any corporate officers would go to jail because they manufactured braced AR pistols deemed by ATF to be rifles.

On the other hand, a private individual might face up to 10 yrs in prison and a $250,000 fine on each count (if I correctly remember the penalties called for in the law), and that’s a big club to hold over anybody's head. Personally, I have a registered lower with two uppers for it in different calibers; so I’m in no immediate danger of having to get rid of a sub-16” barreled upper. BUT…… I also have a braced pistol lower which I built for the specific purpose of being able to transport a short upper across state lines, specifically into states contiguous to Texas. I have no intention of transporting one any further than that.

I built that braced pistol lower IN. GOOD. FAITH that I was compliant with the law as it was being interpreted by ATF. Now ATF wants to change its mind and turn me into an instant felon……me, a nonviolent person who has never committed any previous crimes. With the combined weight of 10 yrs and $250K for every infraction, they are now able to prosecute anyone with a "non compliant" braced pistol the same way they’d treat someone who built a backyard suppressor without filing a Form 1. And that is nothing short of despicable. These people are out of control, and the only way to defeat them is by MASSIVE civil disobedience.

After having read through their PDF and used their worksheet to analyze my own pistol braced lower with the two uppers I have—both of which would end up defining that lower as an SBR—and having thoroughly examined the three examples they provide in their PDF (https://www.atf.gov/file/154871/download), it is painfully obvious that ATF specifically targeted SB Tactical for elimination. The ONE example they opined would still qualify as a pistol used the SB-Mini brace which—coincidentally conveniently for ATF—is out of production and no longer available. I don’t believe in coincidences of that type.

ATF has gone rogue. We need to repeal the NFA, and strip them of any authority or the power to exercise that authority.

[crazy2medic]

ATF has gone rogue. We need to repeal the NFA, and strip them of any authority or the power to exercise that authority

The BATFE needs to be the BATE, time to fix it!

[The Annoyed Man]

ATF has gone rogue. We need to repeal the NFA, and strip them of any authority or the power to exercise that authority

The BATFE needs to be the BATE, time to fix it!

Not really. Why control alcohol? Why control tobacco? MAYBE you can make an argument for controlling explosives, but you have to be specific instead of a general prohibition. I drink very little, and I don’t smoke. But none of the controls in the world over alcohol and tobacco have ever kept people from drinking and smoking. It’s nothing more than a revenue stream for an already bloated gov’t that spends 99% of its time on unconstitutional mandates, and little or no time defending out rights.

[K.Mooneyham]

I believe that the ruling must be intended to be used against manufacturers. As you point out, it will be tricky for brace manufacturers since it is nothing until it is added to a firearm, but the makers of the pistols themselves can be prosecuted. The ATF also has a long history of prosecuting people for making things "intended" to produce illegal weapons. If I understood the case correctly, the maker I referred to was selling a "coat hook", that is he sold a piece of metal he claimed was a small coat hook for hanging things on the wall. The ATF claimed that was a subterfuge and it was really intended to produce a fully automatic weapon. They raided the maker and took his files and did raid some of his customers homes to find the parts. I could be wrong on what he was selling and how because I generally do not follow that market area (I want a fully automatic rifle or three but not so badly that I would try to make it, even with a bump stock).

If you agree that there are too many AR pistols with braces for the ATF to try to arrest the owners now, then you have to ask yourself why they would make the rule. One of the basic principles of legislation is (or should be) never pass a law (or rule) that you do not intend to enforce or cannot enforce. It breeds contempt for the law in general and creates more problems than it is worth. Then you have to ask yourself who they intend to enforce this ruling on. Manufacturers is all I can come up with.

My problem with your feeling that it is okay to interpret the law is that it belongs to the courts to make that interpretation. That was the decision in Marbury v. Madison and I believe it is correct. But the courts have also adopted a policy of deference to agency interpretations, which makes the interpretations law making. Laws should be written clearly enough that the citizen can understand it without needing an agency to interpret it. Do you understand what a handgun is, as defined by the law? A Short-barrelled rifle? A machine gun? I understand the definition in the law very well and see no possible need for an interpretation by ATF. This is how you get stupid definitions like a bump stock is a machine gun. The law defines a machine gun as a weapon capable of firing twice with one pull of the trigger. How can a bumpstock fire at all to be classified as a weapon?

I said that the entire CFR is unconstitutional and that may be an overstatement. Agencies can and should adopt some rules, such as how to apply for a license for something. Procedural rules on how to work with the agency are fine as long as there is no penalty attached to a mistake. If I do not fill out the forms correctly and in the right order, my license gets denied but I cannot be fined or jailed. When a rule is adopted where you can be arrested for violating it, the agency is making law and not rules, in my opinion.

The problem with this new rule interpretation AND the worksheets it includes is that it can be used to prosecute BOTH manufacturers and private citizens. Corporations have deep pockets….deeper than mine, anyway……and since a corporation is an "individual", it will merely pay a fine if it persists, but it’s unlikely that any corporate officers would go to jail because they manufactured braced AR pistols deemed by ATF to be rifles.

On the other hand, a private individual might face up to 10 yrs in prison and a $250,000 fine on each count (if I correctly remember the penalties called for in the law), and that’s a big club to hold over anybody's head. Personally, I have a registered lower with two uppers for it in different calibers; so I’m in no immediate danger of having to get rid of a sub-16” barreled upper. BUT…… I also have a braced pistol lower which I built for the specific purpose of being able to transport a short upper across state lines, specifically into states contiguous to Texas. I have no intention of transporting one any further than that.

I built that braced pistol lower IN. GOOD. FAITH that I was compliant with the law as it was being interpreted by ATF. Now ATF wants to change its mind and turn me into an instant felon……me, a nonviolent person who has never committed any previous crimes. With the combined weight of 10 yrs and $250K for every infraction, they are now able to prosecute anyone with a "non compliant" braced pistol the same way they’d treat someone who built a backyard suppressor without filing a Form 1. And that is nothing short of despicable. These people are out of control, and the only way to defeat them is by MASSIVE civil disobedience.

After having read through their PDF and used their worksheet to analyze my own pistol braced lower with the two uppers I have—both of which would end up defining that lower as an SBR—and having thoroughly examined the three examples they provide in their PDF (https://www.atf.gov/file/154871/download), it is painfully obvious that ATF specifically targeted SB Tactical for elimination. The ONE example they opined would still qualify as a pistol used the SB-Mini brace which—coincidentally conveniently for ATF—is out of production and no longer available. I don’t believe in coincidences of that type.

ATF has gone rogue. We need to repeal the NFA, and strip them of any authority or the power to exercise that authority.

I 100% agree with you, TAM. I would like to add that we all have a pretty good idea of the heinous things that will happen to someone in a Federal prison. The BATFE agents obviously know that, as well. However, it would seem they would have little hesitation to arrest a non-violent person for a procedural violation with the intent that the person end up incarcerated. Therefore, I can only conclude that BATFE agents WANT those terrible things to befall people who haven't committed any violent crimes using firearms. And, in my book, that makes the BATFE agents of evil.

[Rafe]

How about we repurpose the BATFE in light of the new sociopolitical clime and in a way that means none of their badges, signs, or stationary has to be scrapped? The Bureau Advocating for Transgender Family Equality?

[carlson1]

A giant registry and tax scheme.

[srothstein]

ATF has gone rogue. We need to repeal the NFA, and strip them of any authority or the power to exercise that authority

The BATFE needs to be the BATE, time to fix it!

Actually, it needs to be BT, if it exists at all. The Alcohol part is unconstitutional under the 21st Amendment. When prohibition was repealed, the amendment specifically said things in violation of state laws were prohibited. The courts have interpreted this to mean states get exclusive control over alcohol, so what is the purpose and how can we have federal licensing of alcohol?

And the E is still covered by the Second Amendment, IMO. After all, explosives are arms also. Look at grenades, mines, missiles, torpedoes, etc.

That leaves tobacco as possibly being constitutional for the feds to regulate.

[srothstein]

The problem with this new rule interpretation AND the worksheets it includes is that it can be used to prosecute BOTH manufacturers and private citizens. Corporations have deep pockets….deeper than mine, anyway……and since a corporation is an "individual", it will merely pay a fine if it persists, but it’s unlikely that any corporate officers would go to jail because they manufactured braced AR pistols deemed by ATF to be rifles.

On the other hand, a private individual might face up to 10 yrs in prison and a $250,000 fine on each count (if I correctly remember the penalties called for in the law), and that’s a big club to hold over anybody's head. Personally, I have a registered lower with two uppers for it in different calibers; so I’m in no immediate danger of having to get rid of a sub-16” barreled upper. BUT…… I also have a braced pistol lower which I built for the specific purpose of being able to transport a short upper across state lines, specifically into states contiguous to Texas. I have no intention of transporting one any further than that.

I built that braced pistol lower IN. GOOD. FAITH that I was compliant with the law as it was being interpreted by ATF. Now ATF wants to change its mind and turn me into an instant felon……me, a nonviolent person who has never committed any previous crimes. With the combined weight of 10 yrs and $250K for every infraction, they are now able to prosecute anyone with a "non compliant" braced pistol the same way they’d treat someone who built a backyard suppressor without filing a Form 1. And that is nothing short of despicable. These people are out of control, and the only way to defeat them is by MASSIVE civil disobedience.

After having read through their PDF and used their worksheet to analyze my own pistol braced lower with the two uppers I have—both of which would end up defining that lower as an SBR—and having thoroughly examined the three examples they provide in their PDF (https://www.atf.gov/file/154871/download), it is painfully obvious that ATF specifically targeted SB Tactical for elimination. The ONE example they opined would still qualify as a pistol used the SB-Mini brace which—coincidentally conveniently for ATF—is out of production and no longer available. I don’t believe in coincidences of that type.

ATF has gone rogue. We need to repeal the NFA, and strip them of any authority or the power to exercise that authority.

I agree that the law could be used against individuals. I just think that is not the general intent of the ATF because it is logistically impossible or nearly so. There are too many in circulation and no one knows who has them or where they are. So it must be intended to be used against future manufacturers to dry up the market.

Even more, you have a very strong point that one of the problems with depending on any agency interpretation is that you simply cannot trust them to stand by that interpretation. The worst is the IRS but they at least have public notices to not rely on their interpretations or even the advice they give you. They will tell you what to do and then charge you for doing it.

And, as I have posted in this thread already, I strongly support getting rid of teh NFA, the GCA, and the FOPA as all are unconstitutional.

[gamboolman]

I need help please.

I am glad, and want to submit comments opposing the Proposed Legislation on Pistol Braces.

Having said that, I know that I am not knowledgeable enough to write a succinct and effective comment.

Any help or examples would be most appreciated.

Thanks, gamboolman.....

Here is the link to commenting in the Federal Register:

https://www.federalregister.gov/documen ... en-comment

[jason812]

I need help please.

I am glad, and want to submit comments opposing the Proposed Legislation on Pistol Braces.

Having said that, I know that I am not knowledgeable enough to write a succinct and effective comment.

Any help or examples would be most appreciated.

Thanks, gamboolman.....

Here is the link to commenting in the Federal Register:

https://www.federalregister.gov/documen ... en-comment

I usually just quote the 2nd Amendment because I'm not that eloquent.

[jason812]

Having said that, I think this action was brought on by people deliberately trying to get around the law on SBRs by claiming it is a pistol. This ruling is, IMO, trying to stop that and still allow real AR pistols with braces. The ATF is trying to appease the leftists while still allowing the legal pistols with braces.

I know you are not naive but I think you are too kind. There is no way they have any benevolent thought towards any firearms unless its the ones possessed by the government.

[The Annoyed Man]

I need help please.

I am glad, and want to submit comments opposing the Proposed Legislation on Pistol Braces.

Having said that, I know that I am not knowledgeable enough to write a succinct and effective comment.

Any help or examples would be most appreciated.

Thanks, gamboolman.....

Here is the link to commenting in the Federal Register:

https://www.federalregister.gov/documen ... en-comment

I usually just quote the 2nd Amendment because I'm not that eloquent.

That’s actually eloquent enough.