Saturday, January 17, 2015

Some Random Thoughts on the ATF "Open Letter"

My friend Kevin Creighton says in an email that this is a high-risk move for ATF…this will eventually go to court (hopefully sooner than later), and its going to be hard to explain to a judge and jury how an individual can "redesign" a firearm by raising it roughly 12 inches and letting it touch a body part. This is a little bit like a dog and baby analogy…you can dress a dog in swaddling clothes and put him in a crib, but hey, he's still a pooch. And if ATF fails to make the argument stick, SBRs and SBSs are pretty much out the door.

A bigger up front question is if the ATF "Open Letter" stands, it grants the agency sweeping powers to "ban by redefinition." For example, AR pistols with buffer tubes have certainly be legally defined as "handguns' for decades. A pistol with a buffer tube — a necessary part of the firearm — can be shouldered, exactly the same as a pistol fitted with a stabilizing brace. The same "logic," and I use the word in its loosest possible connotation, can be applied to the buffer tube itself, which was neither "designed nor approved" for use as a shoulder stock. The classic Mare's Leg lever action rifle can be shouldered, albeit awkwardly (which is the case with most of these options).

The point is that the whole concept of short-barreled rifles and short-barreled shotguns no longer make sense — if they ever did. I think we as an industry, and as a culture, need to call on the lawmakers who support us to address yet another lame situation where legal gun owners can get caught up on a technicality and face federal felony charges.


This from my friend Iain Harrison at RECOIL MAGAZINE:
"...the missive sent to FFL holders from Max Kingery at ATF Tech Branch was an opinion, and you know what they say about opinions and assholes. If the ATF were confident that what they were peddling would hold up in a court of law, they would have issued a ruling, rather than opinion. Then they would have published it on their website for all to see. As yet, they haven’t."
This from Prince Law Offices, which has been on top of the stabilizing brace issue from the beginning:
"ATF claims that it applies common meaning when using the term “redesign”. I don’t know of a single person who would think that “redesign” entails the misuse of an object. If anything, I would venture to say it would require the individual to modify an existing object. If I were to use a screw driver to pry open an object did I just redesign it? Is using a pencil to drum on the table redesigning it into a drum stick?"
By all means, read the whole articles!


Scott said...

Spot on Michael. We need to stop blaming ourselves and start changing the law and the ATF.

Overload in Colorado said...

I know this are questions I should know the answers to, but what is the legality of these Letters? Are they a Law? A Regulation? What's needed to change them? How permanent are they? Can they violate Ex Post Facto? Can states override them?

It seems like regulations are a way to pass laws without going through the legislature or the voters. I know that laws have been passed creating these departments whose purpose is to do this, but shouldn't there be a limit to their powers?

KevinC said...

I'm also not sure that issuing such a ruling right before everyone affected gets together in one place and can plan a strategy to counteract and negate such a dumb ruling was all a good idea. But hey, the ATF's mistake is our gain!

George said...

With respect to your question about the force of law behind these letters, please consider the part where they note the GCA of 1968 does not offer a definition of redesign. So the ATF in its power given to it by the Congress, defined what redesign means. So yes, it has the weight of law whether we like it or not.

This is why we MUST do something on the legislative side to get these nonsense laws and regs repealed.

Anonymous said...

I say let the lawsuits and legislative inquiries start flying.

It just may be the cracks needed in the foundation of the absurd designation of short barrels and suppressors as NFA items crumbling away and reign in the BATFE in the process.

Again, the bullet points(pun intended) for a successful challenge, imho:

Shouldering an ATF approved pistol stabilizing has become a common use(due primarily to the ATF's previous determination allowing the shouldering of pistol stabilizing braces) and is not subject to the NFA under the common use clause set forth in the Heller case.

United States v. Miller, 307 U. S. 174, does not
limit the right to keep and bear arms to militia purposes, but rather
limits the type of weapon to which the right applies to those used by
the militia, i.e., those in common use for lawful purposes.

The BATFE FTAD's open letter ruling of January 16, 2015 is arbitrary and capricious, conflicts and contradicts with previous BATFE's FTB rulings, and (by the BATFE's FTB's own admission) constitutes a complete reversal from the BATFE FTB's own standard operating procedures providing a precedent for an expansion of enforcement authority heretofore not granted nor practiced in the classification of a weapon, newly determined by how an individual uses a weapon, instead of a weapon's physical design characteristics.

"FTB classifies weapons based on their physical design characteristics. While usage/functionality of
the weapon does influence the intended design, it is not the sole criterion for determining the
classification of a weapon. Generally speaking, we do not classify weapons based on how an
individual uses a weapon. FTB has previously determined (see FTB # 99146) thaI the firing of a weapon from a particular
position, such as placing the receiver extension of an AR-I5 type pistol on the user's shoulder, does
not change the classification of a weapon. Further, certain firearm accessories such as the SIG
Stability Brace have not been classified by FTB as shoulder stocks and, therefore, using the brace
improperly does not constitute a design change. Using such an accessory improperly would not
change the classification of the weapon per Federal law.

Both Houses of Congress must immediately hold Congressional hearings to investigate the disarray of conflicting BAFTE intra-agency (FTAD/FTB) determination letters and examine if closer Congressional scrutiny and approval over the excessive extent of executive discretion the BATFE engages in is warranted to provide the checks and balances necessary to restrict the BATFE to act in accordance and within it's Congressional and Constitutional authority.

Anonymous said...

So if the ATF "defines " shooting weapon as holding in "hands " etc what in gods name do they have to say about this unbelievable guy without arms shooting his 45? Is he a felon or someone to admire?

DamDoc said...

Off topic, but I was looking at the new 10/22 trigger at ruger (checking on my backorder).. and saw they now have the 452MSR trigger for ARs.. any comments on that from the shot show?

Michael Bane said...

Lemme try one at SHOT... Like the gripframe for dry firing...


Anonymous said...

As I recall, awhile back you posted that you had put in place a Trust for your NFA and non NFA firearms. Since it has been some time, can you reflect on folks doing so and the benefits in these times when laws are changing (Colo laws and ATF interpretations like this brace stuff).

David said...

So if I use a two-handed grip to fire a handgun, which by ATF definition is "a weapon originally designed, made, and intended to fire a projectile (bullet) from one or more barrels when held in one hand"...have I "re-designed" it and made it an AOW?

Anonymous said...

And in the mean-time:

I never heard anyone accuse Bryant Gumbel of being a genius. Here's a very good reason why:

The inculcation continues......

This is also another good reason why I tune-out HBO and my cable provider can't understand why.

Life Member

Tim F said...

I always thought legislators wrote the law and judges fine tune them. How can a civil servant create a law that could have me jailed?

Sheepdog1968 said...

Just watched the big bore challenge. Very cool. One gentleman had a 1895 Marlin sine the 1980s that he had 22,000 rounds of 45-70 through. Very cool. By any chance can you provide a bit more info about that Marlin. Mostly I'm curious what has worn out and what maintenance he has done. For example, is he still on the original barrel? Has the wood held up to the recoil? Thanks. I have an 16.5" barreled 1895 SBL that has been to both Lew Bonitz and WIld West Gun that may very well become my all time favorite. Sure is fun to take hunting.

Anonymous said...

ATF letters are not the law and carry no legal weight. They are opinions of law and a glimpse into the reasoning of the ATF. Consider them a brief look into the thought process they'll try to use in court.

But make no mistake, the ATF does have to prove it to a judge just like any other LE agency. They are not making law. They are opining one it. That's all.

Stop giving these clowns more power over you than they have.