pistol brace "banning" question

[Racer X]

kinda talking out loud if you will.

Since the ATF isn't empowered to rewrite a deffinition of a SBR, only congress can, and since there atre between 10-40 million in use, WELL over the 200K threshold established in the Caetano case, they can't be banned, nor currently can they be set up needing a tax stamp, since Congress never redefined a SBR, correct?

Wow, that was a long sentence. Does this track? They are obviously in common use, for lawfull purposes, so they can't be banned, nor are they a SBR, as Congress never changed the deffinition of a SBR.

FYI, 2 different circuit courts of appeal have ruled the brace debacle is unconstitutional, 3 out of 3 judges in a panel, and in the other circuit, 13 out of 16 in an en banc panel, so that is 16 judges out of 19. Seems pretty clear, and the Supreme Court can only hear arguements on evidence already presented, so I doubt the decision will change.

There is an emergency injunction request pending, and the Government only has 24 hours to reply. Not sure when that clock starts ticking.

Once I get a handle on the bump stock ban situation, I'll give you my current understanding on it.

my info comes from the Armed Scholar (a Second Ammendment Foundation lawyer) and the 4 Boxes Diner, a 2nd A gun rights lawyer who is a Supreme Court Bar lawyer as well. boith on youtube

 

[Rodan]

FYI, 2 different circuit courts of appeal have ruled the brace debacle is unconstitutional, 3 out of 3 judges in a panel, and in the other circuit, 13 out of 16 in an en banc panel, so that is 16 judges out of 19. Seems pretty clear, and the Supreme Court can only hear arguements on evidence already presented, so I doubt the decision will change.

Which courts/cases are you referring to? AFAIK, there are several cases moving forward regarding the brace rule, but none have reached rulings, and in those cases where injuctions were requested, they have not been granted.

There is one case that was appealed to the 5th (?) Circuit Court of Appeals for an injuction based on an error by the lower court that denied one, and that has a deadline of 5/24, IIRC.

By any rational analysis, the brace rule doesn't pass muster for a variety of reasons, and with recent SCOTUS rulings, the entire NFA of 1933 could be overturned. Whether the various courts actually honor the SCOTUS rulings has yet to be seen. Certain states have been blatantly ignoring several recent rulings and passing legislation that flies directly in the face of what SCOTUS has said.

 

[Racer X]

I'm dissabled Spad XII. damage to neck and right shoulder, with some nerve involvement requiring radio frequency ablation.

and there is a request for an emergency SCOTUS injunction before the end of the month, which is when, technically, the ATF can start arresting people for what they deem an NFA SBR violation, which is I believe a felony. The 2 circuit courts of appeals records I believe, are taken into consideration. So 16 to 3 is very relevant I would Imagine.

 

[Rodan]

Did you purchase the pistol brace as a means to CIRCUMVENT the Short barrel Rifle registration rules with the ATF

A purchaser's intent doesn't matter at all. The ATF officially declared braces were perfectly legal, even if you shouldered them. Now they're trying to put the horse back in the barn by changing laws they don't have the authority to change.

Regardless, under SCOTUS' definition of "common use", braced pistols, SBRs and suppressors are all in common use and the NFA restrictions on them are unconstitutional in the first place.

 

[Racer X]

A purchaser's intent doesn't matter at all. The ATF officially declared braces were perfectly legal, even if you shouldered them. Now they're trying to put the horse back in the barn by changing laws they don't have the authority to change.

Regardless, under SCOTUS' definition of "common use", braced pistols, SBRs and suppressors are all in common use and the NFA restrictions on them are unconstitutional in the first place.

I have one of the Sig braces with the appropriate letter. So, where they wrong twice before, but suddenly right now? Highly skeptical.

And to prove common use, the ATF knows how many registered suppressors there are, as well as SBSs and SBRs. Just supoena the records. 200K each is the threshold.

 

[Racer X]

A purchaser's intent doesn't matter at all. The ATF officially declared braces were perfectly legal, even if you shouldered them. Now they're trying to put the horse back in the barn by changing laws they don't have the authority to change.

Regardless, under SCOTUS' definition of "common use", braced pistols, SBRs and suppressors are all in common use and the NFA restrictions on them are unconstitutional in the first place.

The technical determination letter that the ATF sent out that plainly spelled out merely shouldering the brace did not result in redesigning the brace (into a shoulder stock) is the biggest smoking gun there is if you ask me. That alone means the ATF's stance a braced pistol is a SBR is questionable at best.

 

[gdogs]

I look at the issue this way. The ATF is wrong and doesn't have the authority. BUT if you are waiting on the courts to resolve this issue, you'll be waiting a long time (if ever). Fact is the ATF was 100% completely wrong about bumpstocks, and it has taken the courts years to get to the point where one appeals court has sided against them (and even that still isn't over). I wouldn't hold my breath on the SCOTUS overturning the brace ban based on the common usage argument. So you can either take the ATF up on the free registration, you can take the brace off, or you can take your chances with a felony and the loss of your 2A rights. Your choice.

 

[ladder13]

Alot of wrongs never get righted.

 

[Hawg Rider]

I was waiting to see some positive results from the numerous lawsuits that are requesting injunctions or revocation of the ATF's pistol arm brace ruling- but there are none to date. As stated above, some lower Courts have already refused to place an injunction on the ruling so the battle will continue past the May 31 "grace period" for registering SBRs with PABs. I made the tough decision to file an ATF Form 1 last week for my SIG MPX (with brace) so that it's registered as a SBR. Theoretically, I did save the $200 fee by filing directly with the ATF before May 31, but that's a moot point. My son's gun stores typically use Silencer Store for quickly filing Form 1s (suppressors, SBRs, etc.) for customers, but SS shut down filing for PAB Form 1s on May 18. Not sure if it was due to an overload of applications or what? I still believe that the ATF's PAB/SBR ruling will be overturned later this year, but just in case things go south, I didn't want to take the chance of becoming an instant felon.

 

[Rodan]

I still believe that the ATF's PAB/SBR ruling will be overturned later this year, but just in case things go south, I didn't want to take the chance of becoming an instant felon.

The head of the ATF is on record in sworn testimony before Congress that removing the brace from the pistol is sufficient to comply with the 'rule'.

 

[Grayfox]

You can make all the sensible arguments you want, but the simple fact is that after May 31 any firearm with a brace becomes illegal.
I own exactly one firearm with a brace and it was originally made that way from the factory. Its highly improbable that ATF will ever come knocking on my door, but if I ever want to shoot this thing at a public range again... well.
I don't like it any more than y'all do, but I took my brace off.
Maybe some day I can put it back on. But I ain't counting on it.

 

[LPD256]

I have an SBR that was created when I took my Sig MPX pistol and added an extendable stock and a forward grip. I soon found out that as a "manufacturer" I needed to engrave my gun with the name of my trust in a certain fashion which I did. This was after I waited thirteen months for my tax stamp. After further checking I realized that if I wanted to take this one to my son's house a few states away, I needed to notify each state with my dates of travel. And other rules. So I bought another pistol with a brace when the ATF said they could be occasionally shouldered without being a felon for shouldering a pistol. Problem solved! So I thought.

So in between times, the market for SBR's collapsed. Why go through the hassle? One could buy a gun with a brace that functionally was an SBR. In short, with this ruling, if one files for the free tax stamp and later the ruling is reversed most likely you have an SBR for life that can only be sold to someone willing to get a tax stamp or a dealer. My opinion is that there are a lot of moving parts to the decision of filing a form one or waiting to see if the ruling is reversed. I'm not an attorney, I'm not trying to tell anyone what they should do. In essence, I'm of the opinion that the ATF didn't understand the consequences of previous rulings. Pistols with braces should have been SBR's on day one. If not, the cat is out of the bag and existing guns should be grandfathered.

 

[Racer X]

The head of the ATF is on record in sworn testimony before Congress that removing the brace from the pistol is sufficient to comply with the 'rule'.

And I have a letter from the ATF saying my brace is legal. I don't trust the ATF to keep their word.

[ame]https://www.youtube.com/watch?v=28rvoQjczOY[/ame]

latest 4 boxes diner video specifically on brace regulation

 

[ISCS Yoda]

The bump stock "win" in the courts is on appeal. Whatever happens to bump stocks will happen to the braces.

The final Court decisions will not be based on the Second Amendment but on a principle of Federal common law called "Chevron deference". It is described as a doctrine that requires courts to defer to reasonable agency interpretations of ambiguous statutes that an agency administers. The win in the bump stock case is based thereon AFAIK.

Chevron deference | Wex | US Law | LII / Legal Information Institute

(c) LII / Legal Information Institute

It's all still being litigated or appealed or both.

 

[Rodan]

Chevron Deference does not apply when criminal liability is the result of the administrative change. The controlling principle is the 'Rule of Lenity', which requires the court to apply the law in the way most favorable to the (potential) defendant.

 

[Hawg Rider]

Unfortunately for me, this is one of those "darned if you do, darned if you don't" situations. I decided to bite the bullet and register my SIG MPX and PAB with the ATF. Once my application is approved (hopefully!), I will be able to configure my SBR however I like...so the MPX will probably get a folding telescoping stock. I shoot the MPX "pistol" much better with a stock.

 

[GaryS]

Firearms Policy Coalition has posted a Tweet that the 5CA has issued an injunction blocking the rule until the case is decided.

As of this time the order is unpublished, so it's not clear exactly what is stayed.

I don't know how well this link will work, but this is two page order.

https://assets.nationbuilder.com/fi..._for_Injunction_Pending_Appeal.pdf?1684857978

 

[wood714]

I have an SBR that was created when I took my Sig MPX pistol and added an extendable stock and a forward grip. I soon found out that as a "manufacturer" I needed to engrave my gun with the name of my trust in a certain fashion which I did. This was after I waited thirteen months for my tax stamp. After further checking I realized that if I wanted to take this one to my son's house a few states away, I needed to notify each state with my dates of travel. And other rules. So I bought another pistol with a brace when the ATF said they could be occasionally shouldered without being a felon for shouldering a pistol. Problem solved! So I thought.

So in between times, the market for SBR's collapsed. Why go through the hassle? One could buy a gun with a brace that functionally was an SBR. In short, with this ruling, if one files for the free tax stamp and later the ruling is reversed most likely you have an SBR for life that can only be sold to someone willing to get a tax stamp or a dealer. My opinion is that there are a lot of moving parts to the decision of filing a form one or waiting to see if the ruling is reversed. I'm not an attorney, I'm not trying to tell anyone what they should do. In essence, I'm of the opinion that the ATF didn't understand the consequences of previous rulings. Pistols with braces should have been SBR's on day one. If not, the cat is out of the bag and existing guns should be grandfathered.

To take a SBR, SBS, or machinegun on a road trip all you have to do is submit a ATF Form 5320.20. I've done it a couple times. Most easy and they will mail your approved form in a week to 10 days. You don't have to notify each state.


I have 7 SBR's at anytime I can have them removed from the NFA Registry and put 16" barrels on them, or remove the stocks from my HK's I bought as pistols. They don't have to stay SBR's for life.

 

[Racer X]

The Firearm Policy Coalition sent out an e-mail that they secured an injunction. I'll post more later today whenever I get full info.

"Per the the Fifth Circuit's Order, "IT IS ORDERED that the appeal is EXPEDITED to the next available Oral Argument Calendar. IT IS FURTHER ORDERED that Appellants' Opposed Motion For a Preliminary Injunction Pending Appeal is GRANTED as to the Plaintiffs in this case."

FPC intends to seek clarification as to who is covered under the scope of the injunction."

here is the order https://assets.nationbuilder.com/fi..._for_Injunction_Pending_Appeal.pdf?1684857978

 

[LPD256]

To take a SBR, SBS, or machinegun on a road trip all you have to do is submit a ATF Form 5320.20. I've done it a couple times. Most easy and they will mail your approved form in a week to 10 days. You don't have to notify each state.


I have 7 SBR's at anytime I can have them removed from the NFA Registry and put 16" barrels on them, or remove the stocks from my HK's I bought as pistols. They don't have to stay SBR's for life.

I've been given slightly different info. Regardless I'm not giving legal advice. You can do whatever. Enjoy.