More AR Pistol Stuff...

I got this comment on my last post, and my answer was too long to fit in the Comments, so I decided just to post it:

"Correct me if I am wrong - but it is not just the buttstock on a pistol length barrel that is illegal. Just putting on a buffer tube that can accept a buttstock will get you the same punishment."

DISCLAIMER...everything that follows is my understanding of the byzantine rules and regulations. I could be wrong. This stuff is based on my discussions with Class III dealers and attorneys to handle NFA issues. You MUST do your own research. I have provided ATF links where I can. Remember, the rules on building NFA weapons are the La Brea Tarpits of the gun world. Do not take chances!

I have heard that myself and seen huge discussions on NFA/AR forums. The answer SEEMS to be that a carbine buffer is fine for an AR pistol build with a giant caveat…from the NFA rules:

" ...an NFA firearm is made if aggregated parts are in close proximity such that they: (a) serve no useful purpose other than to make an NFA firearm (e.g., a receiver, an attachable shoulder stock, and a short barrel); or (b) convert a - 3 - complete weapon into an NFA firearm (e.g., a pistol and attachable shoulder stock, or a long-barreled rifle and attachable short barrel)."

For an example, in my own case, I did NOT purchases a short-barreled AR upper until I had an AR pistol lower. Based on the T/C Supreme Court precedent (http://stephenhalbrook.com/tc.html), if the components you have in your possession CAN be assembled in a legal (eg, non-NFA) configuration, possession of those parts at the same time is not illegal.

In my case, I had only AR carbines. Had I purchased a short-barreled upper — say, I got a great deal I couldn't pass up — I would now have a part, the short barreled upper, that with my existing guns could not be configured in any way other than an NFA firearm, e.g. an SBR. Remember, an AR built as a rifle is always a rifle. Period. I couldn't, for example, take a carbine, remove the carbine upper and replace the buffer tube with one that would not even accept a stock, put my short-barreled upper on it and call it a "pistol." It is not. It is an SBR, because a lower originally built as a rifle is always a rifle, and shortening the barrel to less than 16 inches places it in the controlled category. To do so legally would require me to conform to all rules on building an NFA item. Because I had no way to build a legal configuration, my understanding is that possession of a short-barreled upper in that case was defacto possession of an NFA weapon.

I could solve that problem a couple of ways: 1) buy a complete AR pistol; since the lower is already a pistol, I can put my other or any upper on it that I want, or, 2) buy a stripped lower that has never been built into a rifle; in that case I would now have the parts necessary to build a legal weapon and therefore no longer in defacto possession of an NFA firearm. I got a great deal on an AR pistol, thus resolving the conflict.

Where this can really bite you in the butt is say you don't own an AR at all, but you decide (quite reasonably) that you should build an AR pistol, because that will give you the greatest versatility. A pistol can be turned into a rifle, then back into a pistol. Here's the 2011 ATF letter, same as referenced from above:

Held further, a firearm, as defined by 26 U.S.C. 5845(a)(3) and (a)(4), is not made when parts in a kit that were originally designed to be configured as both a pistol and a rifle are assembled or re-assembled in a configuration not regulated under the NFA (e.g., as a pistol, or a rifle with a barrel of 16 inches or more in length).

Held further, a firearm, as defined by 26 U.S.C. 5845(a)(3) and (a)(4), is not made when a pistol is attached to a part or parts designed to convert the pistol into a rifle with a barrel of 16 inches or more in length, and the parts are later unassembled in a configuration not regulated under the NFA (e.g., as a pistol). 

So you buy a stripped lower to be built as a pistol and a short barreled upper. You make the decision to use a standard carbine buffer tube, because you plan to go back and forth between pistol and carbine. You build your pistol. So far, so good.

Now you want to add components to allow you to rebuild the pistol into a carbine configuration. A friend says, "Hey, I've got an extra carbine stock I can sell you for kibbles and bits!" You jump at it.

WHOOPS!

Think about it. So far you have a complete AR pistol AND a carbine stock. There is only ONE WAY those 2 parts can be assembled, and that is as an SBR, an NFA weapon that you can't build without the paperwork and the tax stamp. Even if you have no intention of putting the stock on the pistol, because there is no way the parts can be assembled into a non-NFA weapon,  you are still in possession of an NFA weapon, a federal felony. 

Instead, you next purchase should be the carbine upper, because there is no law against building a long-barreled pistol. You can put the carbine upper on your pistol lower, no problemo. Once you have the upper, only THEN can you acquire the stock, because you now have enough parts that can be assembled into a legal, non-NFA configuration. And when you decide to reassemble your pistol into a carbine, it must be done in a specific order…the long barreled upper MUST go on first before you add the stock. If you put the stock on first, you have created an SBR (even if it's only for a minute).

I will grant you this makes no sense whatsoever (and if you're doing a build like the pistol one I described above, once again a disclaimer, I suggest you do your own research, up to and including seeking legal advice…I am not a lawyer, nor do I offer legal advice. I do, however, live with a lawyer, and she says always seek legal advice if you have a serious question on the legality of a build).

There's other stuff I didn't even touch on, such as an AR that does not have a stock but is longer than 26 inches, which is apparently neither a pistol or a rifle, but rather a "firearm" and outside the purview of the NFA. Since it is neither a rifle nor a pistol, apparently barrel length isn't an issue, only overall length. So ostensibly you could have a stockless AR (is not a pistol), with a 14-inch barrel (is not an SBR) and a vertical foregrip (is not an AOW), as long as the overall "firearm" length exceeds 26-inches. Here is a copy of the 2011 NFA letter to Franklin Armory that much of this thinking is built on. From my own standpoint, I wouldn't touch this with a 10-foot pole without an expert NFA lawyer sitting on my shoulder.

Heres a handy list of BATFE definitions of different types of firearms.

Remember, the ATF doesn't write these rules/opinions on marble tablets for the ages. They change, and often change very quickly. The whole pistol arm brace issue is a great example of that. First, ATF issued Sig an opinion letter that the arm brace was legal no matter how it was used, since, in the past "use" didn't change the fundamental definition of the firearm. Think of it this way, if I used a knife to lift green peas into my mouth, the knife has not become a fork, even though I used it for an activity usually relegated to forks. Contrary from the zillions of TRANSFORMER movies, machines tend to stay what they are (Sorry, Optimus Prime!).

After apparently tens of thousands of people who should know better flooded the ATF with questions of whether the brace was legal if it was shouldered, ATF changed its mind. There's a great history of the whole imbroglio on Grand View Outdoors:

Finally, as the nation’s top firearms manufacturers readied themselves for the largest gun show in the world — many of them set to debut brace-equipped pistols — the bottom dropped out. 

Just days before the opening of the 2015 SHOT Show, the ATF released an “open letter” to the firearms industry and shooters reversing its March 2014 opinion on the misuse of the Sig Brace, saying shouldering the device constituted a “redesign” of a pistol into an SBR. 

“The pistol stabilizing brace was neither ‘designed’ nor approved to be used as a shoulder stock, and therefore use as a shoulder stock constitutes a ‘redesign’ of the device because a possessor has changed the very function of the item,” the ATF wrote in its January 16 letter. “Any individual letters stating otherwise are contrary to the plain language of the NFA, misapply Federal law, and are hereby revoked.”

Read the whole thing...it's an absolutely fascinating story. And as I noted in my previous post, the buffer tube itself makes for a perfectly serviceable "brace," if you will. I do want to add yet another caveat. In political language, this is a "restatement." In my previous post I said:

I can shoulder or cheek the pistol on the buffer tube for a longer shot, which is why my buffer tubes have soft foam on them... It has been my experience that shouldering or placing the buffer against your cheek to site the gun works just fine.

Given the controversy over the "braces," I would caution against shouldering the gun using the buffer tube. Although the ATF has said nothing about utilizing the buffer tube (or receiver extension, if you prefer), which is a necessary part of the gun, as a stock, I would say the situation is still up in the air and err on the side of caution. There are a number of other buffer tube add-ons designed to make it easier to "cheek" the pistol, that is, you have a cheek weld, but not with any part of the gun resting on the shoulder. The most popular is Thordsen Custom. Those items have been ruled legal when installed to be used as intended, Here's a piece of an article from the Prince Law Firm, who specializes in NFA issues, that sums it up:

So what’s going on? Well, it seems that ATF didn’t appreciate people purchasing various stabilization products/cheek weld enhancements for the purpose of avoiding the payment of the NFA tax (which could constitute tax evasion). This is why the intent aspect, as stated in the definition, is important. If an individual purchases one of these products intending to use it in the manner for which it was made and then misuses it, as ATF previously held in the Bradley letter, he/she has done nothing illegal. There is no law dictating the end use of a product. However, if an individual purchases one of these products to install on their pistol and intends to use it as a faux stock, he/she has very clearly created an illegal SBR.

Obviously, nobody purchases a buffer tube with the intent of using it as a shoulder stock, because the buffer tube is an integral part of the gun. You purchase a buffer tube with the intent of completing the gun. The specific reference in the Bradley letter referred to is this:

“[The] FTB has previously determined that the firing of a weapon from a particular position, such as placing the receiver extension of an AR-15-type pistol on the user’s shoulder, does not change the classification of a weapon..."

Confused yet? I apologize for mentioned the idea of shouldering the buffer tube, which appears to be completely legal and not even an item of contention, but I thought I should bring it up. So get a cheek weld or use the Rob Pincus sling method, especially if you're at the range the same time BATFE is requalifying their agents!