It figures that I’d be sitting at my computer browsing Facebook on New Years Eve and stumble across a post from Thordsen Customs, which stated that they received a determination letter from ATF regarding their custom buffer tube covers and CAA Saddles, which was posted 4 hours before midnight…Happy New Years Eve!
It seems that Thordsen requested some clarification to its design as it had been recently redesigned. The letter was submitted back at the beginning of October and the reply was from the 18th of December, which Thordsen states they received on the 23rd. In fact, Thordsen has published their thoughts on the letter along with the original response from ATF on their website after having taken the time to review it. You can view their thoughts here.
In the determination request letter, Thordsen asked ATF to examine three different samples. They asked if their buffer tube covers with the saddles allowed the AR pistol to retain its classification as a “pistol”, when utilizing their spacers to accommodate people of varying statures and whether the use of a receiver extension (buffer tube) with their cover and a side saddle, for the purpose of providing a stable cheek weld and safer handling, was permissible on a pistol variant that does not require a receiver extension to function.
Letter to ATF from Thordsen Customs
ATF’s Response to Thordsen Customs
Firearms Technology Industry Services Branch (FTISB) begins its response by defining the terms “handgun”, “pistol”, “rifle” and “firearm”. FTISB notes that their focus is to determine whether the items constitute a “firearm” as defined in the Gun Control Act of 1968 (GCA) or the National Firearms Act of 1934 (NFA).
The response notates that a shoulder stock provides a means to support a firearm and easily aim it.
Finding that the submitted samples were designed to enhance a “cheek weld” of an AR type shoulder stock or pistol buffer tube, FTISB correctly determines that none of the items submitted were “firearms” as defined by the GCA.
The letter continues on to state that “FTISB finds that the submitted saddle devices are not designed to support the AR-type pistol in the shoulder of the shooter during firing but, rather, to rest against the shooter’s cheek.” As such, FTISB correctly finds that the attachment of the saddle to an AR type pistol does not change the classification of a pistol to a SBR. FTISB notes “…as long as the saddle device as evaluated and installed to an AR-type pistol, is not designed or redesigned and intended to contact the shoulder and is not used as a shoulder stock, it’s possession and use would not be prohibited.” (Emphasis added).
Photo Credit: Haus of Guns
FTISB then explains that [t]he receiver extension/buffer tube on an AR-type pistol serves a legitimate, vital function in the operation of the weapon system; and if utilized as originally designed is not considered to be a shoulder stock. Further, a pistol that has an AR-type buffer tube or similar component assembled to it, which consequently allows for the installation of a saddle/cheek enhancement accessory, is not classified as a SBR; nor unlawful to possess.”
Here is the paragraph everyone is going to want to take a long hard look at. “However, if a pistol assembled with an AR-type buffer tube or similar component; which in turn, redesigns the subject AR-type pistol to be designed or redesigned and consequently intended to be fired from the shoulder; an NFA weapon as defined in 26 U.S.C. § 5845(a)(3); has been made.”
FTISB concludes that the information in the letter is only intended for use by the addressed individual or company with regard to a specific scenario described within the correspondence, which is newly included language not previous found in any FTISB/FTB determination response.
So what happened? Well, it appears very clear that FTISB and ATF as a whole are paying very close attention to what people are doing and how they are utilizing products, including reviewing internet postings, pictures and videos. All of the stabilization/cheek enhancement products on the market have a legitimate purpose and have assumedly been approved by FTISB at some point. But, it appears that some individuals are not looking to purchase these products for their legitimate purpose and use and instead intentionally intend to misuse them from the moment they are purchased.
As was noticeably absent in the letter discussed in my blog post Cinderella and ATF’s Determination: The Fairy Tale of an AR Pistol to SBR through Magic, this letter does mention intent, in fact several times. Let’s revisit the definition of rifle under the GCA and NFA.
A rifle as defined under the GCA is “…a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder…” A rifle as defined by NFA is “…a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder…” So we see that a rifle is the same in the pertinent part under the GCA and NFA.
But what about the term “firearm”? Under NFA a firearm is defined in the pertinent part as “…(3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length…”
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.
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Did you notice that FTB actually calls it a “stock” saddle on page 3 in the letter…I wonder if that was overlooked or done on purpose.
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They do so in the first paragraph under Sample 3 on page 2.
“With respect to a saddle/cheek piece, the submitted devices is an accessory attachment desigred to enhance the “cheek weld” of an AR-type rifle shoulder stock or AR-type pistol buffer tube by widening the profile of its outer dimensions.”
It would seem that they acknowledge it’s dual use earlier in the letter.
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Since the object they are referring is called a “stock saddle” by it’s manufacturer, I’m not sure why you would think ATF is being mysterious by calling it one.
http://store.commandarms.com/products/saddle-fits-collapsible-stocks/
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Nothing mysterious at all…except that a stock on a pistol makes it an sbr. But hey, we’re splitting hairs all over the place here. Putting it on your cheek is ok…but 3 inches back and it’s now on your shoulder…and it’s only not ok if you intended to shoot it from the shoulder? At least the Sig brace allows you to use the “pistol” as designed. Getting a cheek weld on a pistol seems to fall well outside of the definition of how a pistol is intended to be fired…but hey, if FTB is ok with it, who am I to complain!!!
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If the issue here is “intent of use”, how exactly would this be enforced? It’s like saying that purchasing a knife with the intent to harm/kill is illegal–again, how would one enforce that?
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That’s a good question. One of the ways that I could foresee enforcement potentially occurring (and please note this isn’t intended to cover all the possible ways) is that an individual posts that they are looking to purchase one of these products and that they intend to shoulder it/get around NFA under the guise of an AR Pistol. Not to mention all of the people who have posted pictures and videos of themselves shouldering these various products. It is possible for ATF to bring charges and still not prevail in the end.
While I’m not aware of anyone being prosecuted for this, it doesn’t mean it doesn’t or couldn’t happen.
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I am personally curious about the exact meaning of the statement: “…a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder…”
Specifically, what if the item were not “made or remade” at all? IE, a factory-built pistol.
Let’s say, a Sig P516 Pistol (because it can be purchased with the SB-15 already installed). This item could be purchased complete, and not modified in any manner. Since it’s not being designed, redesigned, made, or remade by the end-user; would intentional misuse still affect the NFA status?
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Another good question.
Let’s revisit ATF’s Bradley letter. ATF stated “For the following reasons, we have determined that firing a pistol from the shoulder would NOT cause the pistol to be reclassified as an SBR:
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.”
Since the P516 was a pistol when it left the factory and was a pistol when it was transferred and STILL was a pistol when an individual hypothetically intentionally misused it, per ATF’s previous letter it would seem that it would not affect the NFA status.
That being said, there are rumors that ATF may have changed its position on the matter and that they may be releasing some information regarding that position change.
Either way, the government could still prosecute an individual and force them to defend the action which could result in expensive legal bills and a headache that no one really wants.
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Adam,
Thank you for your thoughtful reply. You (and your firm) are an asset to the community.
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Thanks. Comments like that are greatly appreciated. Glad people are able to get something out of these posts!
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Adam, what rumors allude to the ATF changing their position on the brace?
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John, there was a post on the Facebook group AR Pistol Shooters that alluded to information coming out of ATF unofficially that their position had changed. I have no way of substantiating that and am waiting just like everyone else to find out if that is the case or not.
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Adam,
Has your firm considered offering something akin to the “Armed Citizens’ Legal Defense Network”? They operate as more of an insurer. I’m suggesting that you offer the legal equivalent of concierge medicine.
I don’t have any current needs for your services (such as a trust, or specific legal advice). However, I would like to support the firm (and make sure you are in my corner should the need ever arise).
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We are listed with them for the capacity in which you suggest.
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I apologize if I wasn’t clear in my original comment… I am suggesting that you offer such a service directly. I would be interested in such a product offered first-party by Prince Law.
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If you are a PA resident give us a call! 1-888-313-0416
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Appreciate the insight and helping keep law abiding citizens informed of a fluid situation. Keep up the good work!
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Our customer is asking…
So if you have a short barrel AR, built as a pistol from ground up, with no stock, just brace or Thordsen adaptor kit, but now it is over 26 inches, is it still a pistol, or is it a “firearm” per USC921 (not NFA)? And can you shoulder such “firearm”?
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Well…first of all you wouldn’t have a Short Barrel AR, you would have a pistol. If the overall length of the pistol exceeded 26 inches it would indeed be considered a Firearm. See Franklin Armory XO-26.
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One of customer is asking..
If you build a short barrel AR from ground up as pistol, with a SIG Brace or Thordsen buffer tube kit, but now its OAL has grown over to longer than 26″. So it is now a “firearm” per USC921, but not an NFA “firearm”. Can the user shoulder such weapon?
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Thats a fantastic question!
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The problem is HOW DO YOU PROVE INTENT? Saying a person is shouldering a pistol with the brace or Thordsen kit or even photo evidence isn’t enough to prove intent.
And remember, the ATF’s letter of opinion is just that, a LETTER of OPINION! It is NOT law and cannot be used against a person exercising his right to do whatever he wants with his property.
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I am confused……if I have an AR pistol with a barrel length of 10.5 inches, but the length of the pistol from the end of the sig brace (fixed not adjustable) to the tip of the threaded end of the barrel (before the sound director) is 27.1 inches what does the NFA classify what I own???
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You would have something called a Firearm…if you look up Franklin Armory XO-26 you should get all the info you need.
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Let’s revisit this now that the head of the art was forced out over their crap.
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