Question for the attorneys or otherwise knowledgeable…

[The Annoyed Man]

Over on Twitter, I’ve gotten myself into a discussion about pistol braces, short barreled uppers, and both registered and unregistered lowers. Here’s my scenario based on both my personal situation, as well as my understanding of the concept of constructive possession as I learned it from prior discussions on this forum:

1. I do own a registered lower. I have owned two SBR uppers for it almost since the get-go—one a 10.5" in .300 Blackout, and the other a 11.5" in 5.56 NATO.

2. Two or three years ago, I bought a completed lower with a carbine receiver extension but no buttstock. Shortly afterwards, I bought a SB Tactical brace, mounted it on the lower, and mated the 10.5" .300 Blk upper to it.

3. That gave me one registered 11.5" SBR, and one 10.5" pistol…all perfectly legal at the time, and done with full faith compliance with both NFA law and ATF's consistent and repeated rulings on pistol braces.

4. Now ATF has started up its tomfoolery about pistol braces, so I took the following actions: (A) I removed the brace and tossed it in a parts bin against the day that SCOTUS spanks ATF; and (B) I put the now-stockless lower back into my safe, and will (for now) consider the .300 Blk upper as part of my old 2-upper SBR setup.

5. It’s worth mentioning that I currently also have a complete 18" heavy barreled match grade upper in my safe that is not currently mated to a lower. That upper is already set aside for use with a matching lower that currently sports a recce rifle upper. Now according to the ATF, I could keep the brace and mate that braced lower to that 18" upper, and I’d be compliant. But why would I do that? For a precision rifle, it would make much more sense to use a rifle/carbine buttstock, and my (possible incorrect) understanding of the new ruling is that I don’t have to destroy the brace…I just can’t have it mounted to anything. But I don’t trust that understanding.

Now, here are my questions…

1. Can somebody give me some links to actual case law/court rulings having to do with constructive possession by a prohibited person, or as in my case, not a prohibited person but someone who may not be compliant with the law? I’m thinking for instance of the example of a woman who lawfully owns a firearm and is married to a felon, and her legal obligation is to either have the gun either on her person or locked in a safe at all times to avoid her husband being in constructive possession of a firearm.

2. As it relates to me specifically, and presumably to anyone else in my shoes, am I in constructive possession of an unregistered SBR, because I have an unused pistol brace in a parts bin, an unused finished lower in my safe capable of accepting that brace, and a spare short barreled upper that is not currently mated to a registered lower?

I would very much appreciate links that would answer questions about constructive possession, because I’d like to share them with the person who, in good faith, asked if I could provide such.

Thanks for reading through another of my interminable posts.

[eyedoc]

I am not a lawyer, but I will give my 2 cents.

ATF goes by their own rules. You might have to fight in court and prove them wrong.

here is one applicable supreme court case.
https://stephenhalbrook.com/thompson/

[eyedoc]

https://www.lexisnexis.com/community/ca ... er-arms-co

[Beiruty]

The rule says, the owner can remove the Brace. It does not say the user has to destroy the brace.

[eyedoc]

The rule says, the owner can remove the Brace. It does not say the user has to destroy the brace.

I remember seeing that it must be rendered incapable of being used after it is removed.

[Grayling813]

The rule says, the owner can remove the Brace. It does not say the user has to destroy the brace.

I remember seeing that it must be rendered incapable of being used after it is removed.

I also saw that the ATF said having an unattached brace could be construed as having the parts to build an unregistered SBR. That's the crux of the ATF randomly making rules and then changing them whenever the winds blow in a certain direction, especially in a gun control direction. Whether the POTUS is a guy named Trump blathering ignorantly about bump stocks or a guy named Biden blathering ignorantly about pistol braces.

[The Annoyed Man]

The rule says, the owner can remove the Brace. It does not say the user has to destroy the brace.

I remember seeing that it must be rendered incapable of being used after it is removed.

I also saw that the ATF said having an unattached brace could be construed as having the parts to build an unregistered SBR. That's the crux of the ATF randomly making rules and then changing them whenever the winds blow in a certain direction, especially in a gun control direction. Whether the POTUS is a guy named Trump blathering ignorantly about bump stocks or a guy named Biden blathering ignorantly about pistol braces.

This is the crux of my question…because as long as I own a brace, even if it’s been tossed into a parts bin, I could theoretically build an unregistered SBR from all of the various parts we have. But the thing is, why would I? We’ve already got two registered SBRs on our trust (mine and my son's), with four dedicated short barreled uppers in tree different calibers. I literally don’t need another SBR lower. And we have more completed uppers in 10.5" (x2), 11.5" (2), 16" (5 or 6? Not even sure), 18" (1), and 20" (1) lengths than I have completed lowers. We also have spare barrels in 7", 16", 18", and 24" lengths.

According to the ATF, I can keep that brace if I put it on a lower that’s mated to a 16" or longer barreled upper. But that’s just dumb. Whatever the ATF thinks, a pistol brace does not make as good of a buttstock as as an actual buttstock makes. If I had to, I could just lose the brace overboard in the nearest lake, and put a regular buttstock on that spare lower…but largely as a matter of principle, I don’t want the option to keep it taken away from me by an unconstitutional ATF fiat.

[Beiruty]

All that "new rules" are dump and unconstitutional.
If all those contraptions, we call pistol braces, if the ATF said they are legal, then of a sudden became illegal.
That means:
1) ATF passed a law to outlaw the ownership of said contraptions.
Or,
2) The ATF was committing "something" and deceiving the people of the USA that said contraptions were legal.

Both cases should not fly in a court of law.

On the other hand, if an "accessory" for a firearm was being introduced to the market and the Co. behind the device requested a classification for the new the accessory, the initial classification might be considered to be under the jurisdiction of BATFE.

[Rafe]

According to the ATF, I can keep that brace if I put it on a lower that’s mated to a 16" or longer barreled upper. But that’s just dumb. Whatever the ATF thinks, a pistol brace does not make as good of a buttstock as as an actual buttstock makes. If I had to, I could just lose the brace overboard in the nearest lake, and put a regular buttstock on that spare lower…but largely as a matter of principle, I don’t want the option to keep it taken away from me by an unconstitutional ATF fiat.

I'm far from an informed commenter, but in that 293-page "final" edict, I read it as you can (discounting the route to register it as a new NFA SBR, turning the firearm in to your local ATF office, or destroying the entire firearm) either attach the brace to a 16" or longer barreled upper OR "permanently remove and dispose of, or alter, the 'stabilizing brace' such that it cannot be reattached..." (Page 272, section V. item B.3.) They go on in the same paragraph to tell us of their altruistic magnanimity: "However, the Department in its enforcement discretion will allow persons to reconfigure the firearm to a pistol by [INSERT DATE 120 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER] and will not require the registration of these firearms as a 'weapon made from a rifle'."

So you can keep the upper, but I gather at most all it can have is the buffer tube hanging off it. My bet is that even a nicely padded insert over the tube can be construed as turning it into something that can potentially be "shoulder mounted." But the existing brace itself has to be destroyed...well, at least rendered incapable of mounting onto a firearm, which would make it destroyed, anyway.

Note that that applies only to us lowly average citizens. The rules are a bit different for FFLs and Class 1 importers and Class 2 manufacturers.

I am not a lawyer, legislator, or peace officer, and represent myself only as an authority on napping in a recliner.

[cmgee67]

Watch this

[parabelum]

Illegal. Congress passes a law, not the unelected ay tee eff.
This is a dumpster dive, a gutter ball of a “rule” that [can be suspected] was released to actually help [in the long run] law abiding pro 2A citizens.

Either that or an utterly incompetent person(s) wrote it.

[Grayling813]

Watch this

Hope everyone took the time to watch this.

[Rafe]

Hope everyone took the time to watch this.

I sure did, and I think the phrase "fatal flaw" on the title slide is misleading and should be "hidden entrapment."

The whole ATF 88-day automatic denial thing was news to me, as was the fact that the ATF stopped using the FBI background check system recently over some sort of interagency squabble. I have to agree that it looks like a recipe to entrap millions of law-abiding citizens into a form of illegal, federal firearm registration. After all, Joe Biden learned all he knows about firearms from Alec Baldwin, and this administration is trying to do everything it can to bypass legislation and the courts in its effort to undermine the 2nd Amendment. Throwing this in the face of up to 40 million law-abiding firearm owners would sure be a big step in accomplishing that mission.

If the median time to get an NFA stamp currently sits at around 8 months, what will happen to that investigation/approval system if just 10% of pistol brace owners decide to file? I know the 88-day thing only starts the timer once a background check is initiated (the same 88 days as for an NICS check, I believe), which check should take about one minute of computer processing time. But given a massive influx of new forms being submitted, it seems reasonable that the queue would grow much longer than the current 8 months. And I gather you'd never be notified proactively as to what stage of the lengthy process you're in. Meaning you're technically a felon in possession of an illegal firearm for maybe a year before even finding out the result of your application.

Has the NRA issued any actual, recommended actions we should take about this? The video, natch (and I assume the GOA), just says write and call everyone you can think of. I've written Whoopi Goldberg a letter but I don't think that will do much good.

Joking aside, with that video in mind I plan to reread all (well, most) 293 pages of "ATF factoring criteria for firearms with attached stabilizing braces" and highlight the gotcha! portions that strike me as solid rationale to delay this thing. Who has the ability to remove it from the federal register? Only the ATF or higher-ups in the Department of Justice?

My friend gave a half-hearted initial effort at twisting his brace on the buffer tube. He bought his from an FFL as a new, complete firearm, and evidently the manufacturer used Locktite to secure the brace. On the plus side, the brace is perfectly aligned vertically with the sight alignment and ain't gonna move accidentally. On the minus side, it's going to be a real bear to get it off without at least marring the firearm. The otherwise super-handy AR15 multi-tool has got nuthin' to help with that process. Looks like it's going to take a padded vice and brute force.

[Mike S]

Here's a good, even handed explanation. It also includes case law examples as you asked for:

[The Annoyed Man]

Watch this

A SECOND fatal flaw discovered: