Popping the corn; melting the butter
AFT pistol stabilizing brace rule just came down.
- Thread starter AlwaysArmed
- Start date
Popping the corn; melting the butter
IIRC, weren't pistol arm braces originally developed to help disabled shooters (including wounded veterans) continue to enjoy hunting, competition, and other shooting sports? The ATF reviewed and approved the use of those PABs. At that time, many of us jumped onboard because we had "pistols" (5.56, .308, pistol caliber, etc.) that would accept PABs or stocks. The only PAB I have is installed on my SIG MPX Gen 2 (9mm). Why register my pistol as an SBR (with a stock) when it was completely legal to install a PAB without a Form 1 registration and fee? Anyway, although I've registered myself on ATF eForms, I am holding off on any further action until I see the results of the official rulings and legal challenges.
We have a subset of folks in this society who object to any regulation that isn't codified into law. (We saw that attitude on full display during the Covid pandemic.) I'm trying to point out that regulatory agencies have the authority to create and amend regulations...it happens all the time...and it isn't necessary for Congress to pass a law when regulations are amended.
For example, consider the Aviation and Transportation Security Act (ATSA), Public Law 107-71. This was the legislation that federalized airport security, and created the Transportation Security Administration. I've linked to it below.
The ATSA creates the position of TSA Administrator, and commands that person to:
"...develop standards for the hiring and retention of security screening personnel; train and test security screening personnel; and be responsible for hiring and training personnel to provide security screening at all airports in the United States where screening is required under section 44901, in consultation with the Secretary of Transportation and the heads of other appropriate Federal agencies and departments."
There's no language there about metal detectors, body scanners, pat downs, or the various other methods TSA uses to screen passengers. Those details are contained in Title 49 of the Code of Federal Regulations (CFR), which is linked below, and which is amended when needed.
One thing that was contained in the ATSA was a mandate that TSA employees be compensated according to a separate pay scale, not the General Schedule (GS) scale used by other federal agencies. Therefore, when the Administrator of TSA wanted to bring the pay of his workforce in line with the pay of other federal employees, he sought Congressional approval for that. (Link below.)
Regarding this whole situation with "stabilizing braces"...if the ATF truly lacks the authority to make this ruling, I'm sure somebody will challenge them on that point. But from what I know of federal regulations, it looks to me like they're within their rights to change the regulation. I could certainly be wrong, but I suspect that before they ever proposed this change, their attorneys reviewed it.
https://www.govinfo.gov/content/pkg/PLAW-107publ71/html/PLAW-107publ71.htm
eCFR :: 49 CFR Chapter XII -- Transportation Security Administration, Department of Homeland Security
Statement regarding pay parity for TSA employees | Transportation Security Administration.
One thing is for sure. i will maintain compliance one way or the other. As wise old redneck once said, "insisting on being right does not mean it will get done that way"
Speaking only for myself . . . I have always felt that arm braces were a workaround to create a "legal" SBR. I believe that braced pistols were always SBRs, but I chose to take advantage of the loophole to acquire a small quantity of these weapons. I cannot disagree with the ruling on principal although I do feel that the entire NFA and its addenda are unconstitutional. Until such time as that law is overturned in a court of law, though, it is the law of the land. As I cannot afford to be a "test case" costing hundreds of thousands to litigate, I will comply with the the law. I might also add that I do not wish to risk becoming a felon, losing my gun rights, and possibly spending my last years in a federal prison.
I have already sent in my efiles and fingerprints. Being one of the first in line may allow them to be approved faster (or not). Should the ruling be overturned in court (I think that unlikely) I'm really not out anything since the $200 tax is waived on these. Well, okay, I had to pay to be fingerprinted.
Am I worried about putting my fingerprints in the system? No, not really. I had to be fingerprinted for my Texas carry license years ago as well as for my drivers license when Texas converted to the "Real ID" standard. So they're already on file.
I'm not a conspiracy theorist, and I do not believe that "they" are out to get me. Surely I'm not that important.
I have already sent in my efiles and fingerprints. Being one of the first in line may allow them to be approved faster (or not). Should the ruling be overturned in court (I think that unlikely) I'm really not out anything since the $200 tax is waived on these. Well, okay, I had to pay to be fingerprinted.
Am I worried about putting my fingerprints in the system? No, not really. I had to be fingerprinted for my Texas carry license years ago as well as for my drivers license when Texas converted to the "Real ID" standard. So they're already on file.
I'm not a conspiracy theorist, and I do not believe that "they" are out to get me. Surely I'm not that important.
BATFE rewrote the definition of a rifle, which they don't have the authority to do. Congress would have to change a law for that to happen, which they didn't. Just like redefining a rifle stock as a trigger assembly ...........
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You might not have intended to make that point, but you did.
One of the key differences is that the the airbag requirement was a requirement moving forward. They did not ban cars that didn't have airbags nor did they require old cars to get airbags. It didn't affect existing cars at all as all of those existing care were legal under the regulations in effect when they were produced.
It put new requirements and costs on manufactures and customers going forward, but it gave fair warning it was happening.
None of that is true with pistols braces. The 20 million or so braces made were all ATF approved under ATFs regulations and interpretation of those regulations.
Yet ATF now wants to retroactively apply a new definition and impose additional requirements for registration, with criminal penalties for failure to comply.
For many owner it will force destruction of the braces as they don't live in states that allow SBRs. For all owners, registering them as an SBR imposes limitations on both use and transport to or through other states. Some of those restrictions are not immediately obvious. In NC for example, I can carry a loaded handgun in my vehicle and has such a pistol brace equipped MP5 handgun is still a handgun and still legal to carry loaded in a vehicle.
NC has also had 11 years to close what they could have perceived as a loop hole, but then chose not to. The intent of the law prohibiting loaded rifles in a motor vehicle is related to road hunting and not self defense, and NC has no issues with a concealed carry permit holder opting to carry a braced pistol in a vehicle.
Yet the ATF by changing the definition of a braced pistol to a rifle preempts that option in NC.
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Now…if the ATF had instead opted to just change the rule going forward and required subsequent pistol braces to be serial numbered and considered any firearm, they were attached to to be an SBR, that would have been within their authority and would not have created any harm to existing braced pistols or pistol brace owners.
The ATF claims it can't do that as it doesn't regulate firearms accessories. Yet it banned bump stocks as full auto weapons and it has long regarded a registered sear installed in a receiver to be the automatic weapon.
In short, the ATF could have clearly taken an approach to consider pistol braces to be NFA items going forward and grandfathering the rest of them. But it chose not to do that and as such exceeded its authority via a violation of its Chevron Deference authority by arbitrarily changing its mind, as well as creating Rule of Lenity issues by using an interpretation that results in potential criminal penalties.
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That's at the heart of the issue.
When an agency passes a rule like this, it takes either Congress stepping in to say explicitly "no, that's not what we meant" or it takes a court challenge.
For example, the Dept of Ed changed the financial aide rules about 20 years ago based on a newly passed law that required students attending college in or near their home town to live at a home. I had a deaf student at the time where learning to live and function independent was a huge part of her future success and we'd worked hard to get her out on her own. I wrote the Senator from our state who had sponsored the bill and advised him of the scope of the regulations proposed by Dept of Ed and the lack of any exceptions based on disability and or approval of a financial aide director. He agreed that was in excess of the intent of the law and agreed they needed exceptions under certain specific circumstances. It took about 2 weeks start to finish to get agreement from Dept of Ed that it would amend the proposed regs accordingly.
But that was a new law. With a regulatory change involving an old statute, it's almost impossible to get an agency to back off just because a Congressman or senator says "no that's not what we meant". Once a law has been a round awhile it's all about partisan politics. Thus it takes a court challenge. That challenge also cannot proceed until the final rule is actually published.
In this case with the rule taking effect 1-31-2023, I expect multiple challenges will be filed 2-1-2023.
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Similarly, when a state legislature passes a law that conflicts with one or more Supreme Court rulings (and we have several of those in effect right now) it also requires a court challenge, even when the states clearly knows it's law is unconstitutional and will be struck down.
That court challenge has to start at a district court, then advance to a court of appeals and then potentially to the Supreme Court, particularly when there are conflicting rulings in different districts. That can take years.
A district court can grant an injunction or stay preventing the law from being implemented but the rules around that are complex and are based on the likely hood the law will be over turned, and on the harm that could be caused.
In TX for example there was finally a stay against the bump stock ban, but it occurred well after the ban went in effect and any bump stocks out there should have already been destroyed, so it's value is questionable, other than as a legal precedent.
One reason the bump stock ban wasn't stayed sooner was the comparatively small number of bump stocks (since most shooters thought they were pretty useless anyway).
On one hand the pistol brace registration has a greater potential for a stay as it potentially affects 20 million braces and several million owners.
On the other hand it's not calling for destruction on the face of it, but rather registration so it's perceived as having a reversible impact when it is over turned. Now that's not entirely true as destruction is what's on the table for owners in states that ban SBRs, and once registered I suspect any path to have the, de registered as NFA items will require another legal challenge.
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In short, the fact that it can take years to over turn a law that was known to be unconstitutional the day it is passed is the purpose for such laws. In the interim they can force compliance with unconstitutional requirements that are often irreversible in the months or years between the law taking effect and being thrown out.
NY for example after its existing law was over turned by the Supreme Court the governor convened a special session of the legislation and within 8 pays of the old law being over turned, passed a very similar new law that will also ultimately be over turned. NY's argument against a stay? That the court was acting in haste and was not giving the, enough time to defend the new law. After passing that law in just 8 days before the ink was even dry on the order over turning the old law.
Our founding fathers assumed a level of ethics and honorable action and intent that is totally lacking in our current legal and political systems.
Absolutely. John Adams said
"Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."
scoobysnacker
Member
So, it's official now
Federal Register
::
Factoring Criteria for Firearms With Attached "Stabilizing Braces"
Clock starts today
Federal Register
::
Factoring Criteria for Firearms With Attached "Stabilizing Braces"
Clock starts today
Got notified by email today. One of my 3 efiles has already been approved. I suspect the others will follow shortly.
What was your submission date for the one that was approved today?
Oldengineer
Member
The Constitution in article 1, section 9 states that " no ex post facto law shall be passed". This means you can't make something illegal that was once legal. I'm not a lawyer (my wife is) but it seems to me that this is ex post facto law. At a minimum, all those braces attached to pistols currently out there should be exempt. Going forward is a different story. Any attorneys out there —- please weigh in. Tom H.
I'm not an attorney but would offer a correction to your definition of ex-post-facto.
It doesn't mean that something legal cannot be made illegal. It means that when something that WAS legal is made illegal, that people cannot be prosecuted for having done it BEFORE it became illegal.
For example: when the 1994 assault weapons ban made certain rifles illegal to sell, someone who bought one in 1993 couldn't be prosecuted for breaking the new law that was passed in 1994, because when the rifle was bought in 1993 it was still legal to buy and sell them.
This may seem like a minor distinction, but it is an important one, because that is EXACTLY what this new ATF "rule" is attempting to do. People who bought braces when they were still considered legal can now be prosecuted for owning them - because the ATF decided they were no longer legal.
If the ATF had just said "braces cannot be bought or sold or put on a pistol from this point forward" then there would really be no issue. People who bought them when they were still legal couldn't be prosecuted for having one and it would be just like any other change in the law. You could be prosecuted if you violated the rule AFTER it was put in place, but you couldn't be prosecuted for having one you bought back when they were still legal.
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crstrode
Member
What BC38 says is valid. However, it is not uncommon for elected government officials and their agents to turn a blind eye to the letter of the law and then do what ever benefits themselves.
Life is hard, then you are jailed illegally, then you die.
Life is hard, then you are jailed illegally, then you die.
1/21/23 . . . so, five weeks give or take.
Well, FWIW, that turnaround time is certainly better than what I would have ever expected from the BATFE or any other government agency...
Good to know.
This was an 'amnesty' braced pistol e-file?
If so, was there a tax stamp on the approval? It has been reported on other forums that amnesty form 1s that have been approved do not have tax stamps like a typical form 1 approval.
Not drawing conclusions to the ramifications at this point, just curious...
