Return to “ATF Released New Proposed Pistol Brace Rules”
I think if the government is coming after our guns we should cooperate and give them the guns, well at least the bullets to start with.
What the poster described as judicial law is normally referred to (at least in police circles) as case law. This is not really law, but is the way the statutes are interpreted by the courts. There is a real question if this is law or not. The principle of stare decisis says they will decide the next case the same way so don't waste your time with it any other way. But if that were really true, we would not have just seen Roe v. Wade, or for that matter Dred Scott, overturned. Then there is the real question of how the court would rule on another law that was very similar but had some minor distinction and the circumstances that brought the case were slightly different. An example of this is the way the Texas law on sodomy was overturned. The officer went into the private apartment to catch two consenting adults and the privacy expected in the home came into play. But the law is still on the books in Texas and some ambitious DA (obviously not Soros funded) could decide to take a case that had the adults in some public or semi-public place (like a park restroom). I doubt it would happen normally, but NY is taking the exact wording of the Bruen decision (forbidding needing a good cause) and twisting it to requiring people to have good character in its place. Still leaves them may issue and will take another court case.Soccerdad1995 wrote: ↑Fri Sep 23, 2022 9:05 amI need to re-read my copy of the US Constitution. Because I could have sworn that the power to make law rested with the legislative branch. The judicial branch can not make law, it can only interpret laws as they apply to a given set of facts and also determine whether they conflict with other laws (most notably the US constitution as the supreme law of the land). The Executive branch, and its agencies, is empowered to execute and enforce the law. That necessarily requires them to apply judgment in determining how a law would apply to a particular set of circumstances - such as in the case of pistol braces. None of this changes the fact that the legislative is the only branch that can make law.der Teufel wrote: ↑Sun Sep 11, 2022 11:39 am
There are three ways laws come into being. The categories are:
1) Legislative Law - Enacted by congress
2) Executive Law - Executive Orders and rulings by executive branch departments (this is where the ATF comes in)
3) Judicial Law - Rulings handed down by the court system
All of these become law when they are executed. They are not just opinions. They are, of course, subject to review. The courts can nullify or modify legislative and executive rulings. The Legislature can enact laws that countermand executive or judicial findings.
I agree that the West Virginia v. EPA SCOTUS ruling is likely to rein in some of the bureaucratic excesses that have occurred in the past, but we'll have to wait and see to learn just what effect that will really have.
At least this is my understanding. I am pretty busy at work today, but will take another look this weekend.
You are correct that they have no benevolent thought towards any citizen owning any firearms. I certainly cannot argue that point. But they are very good strategists/tacticians and they know they could not get anything through the courts if they banned all braced pistols, so they are trying to straddle the line as well as they can. I should have worded my first statement on this a little better.jason812 wrote: ↑Fri Jun 11, 2021 2:15 pmI know you are not naive but I think you are too kind. There is no way they have any benevolent thought towards any firearms unless its the ones possessed by the government.srothstein wrote: ↑Tue Jun 08, 2021 10:21 pm
Having said that, I think this action was brought on by people deliberately trying to get around the law on SBRs by claiming it is a pistol. This ruling is, IMO, trying to stop that and still allow real AR pistols with braces. The ATF is trying to appease the leftists while still allowing the legal pistols with braces.
I agree that the law could be used against individuals. I just think that is not the general intent of the ATF because it is logistically impossible or nearly so. There are too many in circulation and no one knows who has them or where they are. So it must be intended to be used against future manufacturers to dry up the market.The Annoyed Man wrote: ↑Thu Jun 10, 2021 10:17 amThe problem with this new rule interpretation AND the worksheets it includes is that it can be used to prosecute BOTH manufacturers and private citizens. Corporations have deep pockets….deeper than mine, anyway……and since a corporation is an "individual", it will merely pay a fine if it persists, but it’s unlikely that any corporate officers would go to jail because they manufactured braced AR pistols deemed by ATF to be rifles.
On the other hand, a private individual might face up to 10 yrs in prison and a $250,000 fine on each count (if I correctly remember the penalties called for in the law), and that’s a big club to hold over anybody's head. Personally, I have a registered lower with two uppers for it in different calibers; so I’m in no immediate danger of having to get rid of a sub-16” barreled upper. BUT…… I also have a braced pistol lower which I built for the specific purpose of being able to transport a short upper across state lines, specifically into states contiguous to Texas. I have no intention of transporting one any further than that.
I built that braced pistol lower IN. GOOD. FAITH that I was compliant with the law as it was being interpreted by ATF. Now ATF wants to change its mind and turn me into an instant felon……me, a nonviolent person who has never committed any previous crimes. With the combined weight of 10 yrs and $250K for every infraction, they are now able to prosecute anyone with a "non compliant" braced pistol the same way they’d treat someone who built a backyard suppressor without filing a Form 1. And that is nothing short of despicable. These people are out of control, and the only way to defeat them is by MASSIVE civil disobedience.
After having read through their PDF and used their worksheet to analyze my own pistol braced lower with the two uppers I have—both of which would end up defining that lower as an SBR—and having thoroughly examined the three examples they provide in their PDF (https://www.atf.gov/file/154871/download), it is painfully obvious that ATF specifically targeted SB Tactical for elimination. The ONE example they opined would still qualify as a pistol used the SB-Mini brace which—coincidentally conveniently for ATF—is out of production and no longer available. I don’t believe in coincidences of that type.
ATF has gone rogue. We need to repeal the NFA, and strip them of any authority or the power to exercise that authority.
Actually, it needs to be BT, if it exists at all. The Alcohol part is unconstitutional under the 21st Amendment. When prohibition was repealed, the amendment specifically said things in violation of state laws were prohibited. The courts have interpreted this to mean states get exclusive control over alcohol, so what is the purpose and how can we have federal licensing of alcohol?crazy2medic wrote: ↑Thu Jun 10, 2021 10:51 am ATF has gone rogue. We need to repeal the NFA, and strip them of any authority or the power to exercise that authority
The BATFE needs to be the BATE, time to fix it!
I believe that the ruling must be intended to be used against manufacturers. As you point out, it will be tricky for brace manufacturers since it is nothing until it is added to a firearm, but the makers of the pistols themselves can be prosecuted. The ATF also has a long history of prosecuting people for making things "intended" to produce illegal weapons. If I understood the case correctly, the maker I referred to was selling a "coat hook", that is he sold a piece of metal he claimed was a small coat hook for hanging things on the wall. The ATF claimed that was a subterfuge and it was really intended to produce a fully automatic weapon. They raided the maker and took his files and did raid some of his customers homes to find the parts. I could be wrong on what he was selling and how because I generally do not follow that market area (I want a fully automatic rifle or three but not so badly that I would try to make it, even with a bump stock).Soccerdad1995 wrote: ↑Wed Jun 09, 2021 10:59 pmI'm confused as to how there could be any enforcement against manufacturers of pistol braces. A pistol brace, by itself, does not pass the prerequisites listed above ITT so you wouldn't even get to the scoring part of the test at all. As I read the proposed rule, the ATF is not claiming that this accessory by itself is a firearm, much less an SBR (this is different from their opinion that a "bumpstock" by itself is in fact a machine gun).
My understanding of the rule is that one only runs afoul of the tests here once the brace is attached to a firearm of some sort. As long as manufacturers are not selling a firearm that has a brace installed on it, they can't be selling an NFA item. But it is entirely possible that I do not fully understand the rule.
Also, as far as agency rules "clarifying" laws, I agree that executive agencies have zero authority to make laws. But I don't think that is what they are doing, either here or with the "bumpstock" rule. Instead, the agency is just saying "this is how we interpret the law", and in both cases ("bumpstocks" and braces) they are also saying "...and we think our previous interpretations of the law were incorrect". That is interesting, but it doesn't change the law at all. The law can only be interpreted and applied to a specific case by the judiciary, and until a judge and/or jury makes a ruling on what is or isn't a machine gun (in the case of "bumpstocks") or an SBR (in the case of braces), the ATF's interpretation of the law is just as valid as my interpretation of the law. The exception being that in both cases, the ATF is fully admitting that they have incorrectly interpreted these exact same laws before, which I would argue is pretty good evidence that they are incorrect now as well. Kind of like when a witness is caught in a lie and the opposing attorney argues that since they are an admitted liar, they are more likely to also be lying about XYZ now.
Again, I fully allow for the possibility that I am completely off base on this as well.
Mr. Mooneyham, I believe you are correct that this law is effectively unenforceable on the vast number of braced AR pistols that exist right now. The ATF can only enforce that on people idiotic enough (I tried to think of a polite way to say that but I think that about describes it) to send their pistol to the ATF or local police for an evaluation. There is simply no way to enforce this against existing firearms now. The real question is if there is any way to enforce it against future firearms. I think ATF will be monitoring the market place and will go after the manufacturers of braces they feel violate their rules. Then they will get the list of the customers and will send them letters demanding they turn in the weapon (much like they just did with one company and its "autosear". I think the average gun owner is fairly safe from the ATF on this and it will primarily hurt manufacturers and some of them will end up in jail. But that will dry up the supply for future gun owners who want a braced pistol.K.Mooneyham wrote: ↑Wed Jun 09, 2021 4:55 amMr. Rothstein, I agree with the first part of what you wrote, 100%, and I won't argue against the second part, either. However, I'm sure you know that no law is any better than its enforcement. So what I am curious about is this: how many braced-type AR pistols do you think are out there right now? It has to be a pretty big number, six figures perhaps. Additionally, are law enforcement agencies in the State of Texas going to aid the BATFE in any significant manner to locate and arrest people who own AR pistols which might run afoul of those proposed rules? I understand the scenarios of "you get pulled over for a traffic stop on the way to the range and your now-illegal AR pistol gets you arrested", etc. But still, how practical is it for the BATFE to rely on such a strategy? And, if the number of AR pistols is a six-figure number, can they really jail even a significant proportion of those? All that said, what I'm getting at is that over-reach by a Federal agency might have more than one meaning, in this case, biting off more than they can chew. (Disclaimer, I don't own one of those, never could afford it compared to other things I wanted to purchase.)