If there was any question about whether ATF was paying attention to what individuals were using their SigTac SB15 Braces for, it has just been answered. ATF released an open letter to the industry today which hit my mailbox at 4:36 PM. The letter in its entirety can be found here.
Since the SigTac SB15 hit the market it has caused quite the controversy. As I alluded to in a previous blog post there was a segment of the population which contended it was a “loophole” or way to “cheat” the system from having to complete a Form 1 or Form 4 to make or transfer a short barreled rifle. It seems that ATF has taken that exact stance.
Whether, it was the influx of requests for clarification about the use of the device sent to the Firearms Industry Technology Services Branch (FITSB) or the abundance of YouTube videos, Facebook postings and Instagram photos, ATF has once again created another “shoe-string machine gun” type ruling. Let’s examine this new literary masterpiece entitled “OPEN LETTER ON THE REDESIGN OF ‘STABILIZING BRACES’” together. It’s worth noting that this response comes from the Firearms and Ammunition Technology Branch (FATD) instead of FITSB.
FATD begins the letter by explaining that “stabilizing braces” are described as a “shooter’s aid that is designed to improve the single-handed shooting performance of buffer tube equipped pistols.” The letter continues that the items are intended to improve accuracy by using the operator’s forearm to provide a stable support for the AR-type pistol. Attachment of such a brace DOES NOT alter the classification of the firearm OR subject the firearm to the National Firearms Act of 1934 (NFA). However, according to ATF, that classification is predicated on whether a user is actually using the device as it was designed. FATD then notes that “When the device is redesigned for use as a shoulder stock on a handgun with a rifled barrel under 16 inches in length, the firearm is properly classified as a firearm under NFA.” (Emphasis added).
The letter continues with the, what should now be familiar, definition of “firearm” under NFA.
“…(2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length;
(3) a rifle having a barrel or barrels of less than 16 inches in length;”
And that a “rifle” and “shotgun” are defined as “a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder…” (Emphasis by ATF).
FATD continues, “pursuant to the plain language of the statute, ATF and its predecessor agency have long held that a pistol with a barrel less than 16 inches in length and an attached should stock is a NFA ‘firearm’.” (Emphasis added). As evidence of this, the letter cites to Revenue Ruling 61-45 which determined that Luger and Mauser pistols having a barrel length of less than 16 inches in length and attached shoulder stocks classified them as short barreled rifles.
The letter goes on to explain that when ATF classified the originally submitted design, ATF considered the objective design as well as the stated purpose. ATF includes a quote that was submitted with the sample for FTISB to consider when classifying the design.
The intent of the buffer tube forearm brace is to facilitate one handed firing of the AR15 pistol for those with limited strength or mobility due to a handicap. It also performs the function of sufficiently padding the buffer tube in order to reduce bruising to the forearm while firing with one hand. Sliding and securing the brace onto ones forearm and latching the Velcro straps, distributes the weight of the weapon evenly and assures a snug fit. Therefore, it is no longer necessary to dangerously “muscle” this large pistol during the one handed aiming process, and recoil is dispersed significantly, resulting in more accurate shooting without compromising safety or comfort.
ATF’s response to the request for classification noted that “a shooter would insert his or her forearm into the device…” which pursuant to the information provided would mean the device was “…not designed or intended to fire a weapon from the shoulder.” FATD clarifies that in making the initial classification ATF determined that the objective design characteristics of the stabilizing brace supported the stated intent.
FATD confirms that if the SigTac SB15 brace is used as designed (to assist shooters in stabilizing a handgun while shooting with a single hand) the device is not considered a shoulder stock. “ATF has received numerous inquiries regarding alternate uses for the device, including using it as a shoulder stock.” (Emphasis added). FATD then states that because NFA defines both rifle and shotgun to “include any ‘weapon designed or redesigned, made or remade, and intended to be fired from the shoulder,’ and person who redesigns a stabilizing brace for use as a shoulder stock makes a NFA firearm when attached to a pistol with a rifled barrel under 16 inches in length or a handgun with a smooth bore under 18 inches in length.”
The letter notes that the Gun Control Act of 1968 (GCA) does not define the term “redesign” and therefore ATF applies the common meaning. ATF utilizes Webster’s II New College Dictionary which defines “redesign” as “to alter the appearance or function of.” FATD continues that this is not a novel interpretation and gives some previous rulings related to destructive devices and any other weapons.
FATD explains that the brace was neither designed nor approved to be used as a shoulder stock and that the use of the brace as a shoulder stock constitutes a redesign of the device because a possessor has changed the very function of the item. The letter concludes that “Any individual letters stating otherwise are contrary to the plain language of the NFA, misapply Federal Law, and are hereby revoked.”
I wonder how many dictionaries ATF poured through to cherry pick that definition out of.
http://www.merriam-webster.com/ defines “redesign” as “to change the design of (something)”.
Even if we utilize the definition that ATF so generously provided, how does misusing the SigTac SB15 brace by shouldering it alter the function of the device? It still functions exactly as it were designed. An individual could use a spoon in order to cut their food but it still retains its true function as a spoon.
ATF claims that it applies common meaning when using the term “redesign”. I don’t know of a single person who would think that “redesign” entails the misuse of an object. If anything, I would venture to say it would require the individual to modify an existing object. If I were to use a screw driver to pry open an object did I just redesign it? Is using a pencil to drum on the table redesigning it into a drum stick?
It appears that I’m not the only one perplexed by this definition. Aaron Cowan, the lead instructor from Sage Dynamics, posed this question to ATF in a letter he penned to them after reading this determination.
“Will the ATF and/or FATD further define their definition of “designed” or “redesigned” as my understanding of both words means a physical alteration and/or creation of additional features that permanently change the physical nature, profile, weight or contour of a device. By placing a stabilizing brace against the shoulder portion of the body, no actual design or redesign has occurred, the brace simply is applied to a different part of the body.”
Not to mention, where does this “redesign” that FATD contends happens occur? The inanimate object didn’t magically shapeshift. Using ATF’s logic, if I were to grab hold of my magazine on an AR-15 and use it to stabilize my gun I’ve now created a vertical foregrip…
Going back to the hypothetical I posed previously, if an individual builds an AR-type pistol using a SigTac SB-15 brace, uses it in the manner for which it were designed and then hands it to a friend who shoulders it, did the friend just “redesign” the brace? According to this letter they just did. So is the firearm no longer a pistol and now a SBR?
Let’s take a quick trip down memory lane to NFA’s definition of “make”.
“Make.—The term “make”, and the various derivatives of such word, shall include manufacturing (other than by one qualified to engage in such a business under this chapter), putting together, altering, any combination of these, or otherwise producing a firearm.” 26 U.S.C. § 5845(i)
What isn’t defined is the term “design”. Since I don’t have a dictionary from 1934 handy to see what it might have meant then, I’ll refer to Merriam-Webster’s website again. They define the term “design” to mean “to plan and make (something) for a specific use or purpose. So if redesigning (using the definition from Merriam-Webster) means to change the design of something (which only logically would follow that it would require some alteration to the actual object), how does the misuse of an object constitute the redesign of it? It would only make sense that even though the object may be misused, it still retains all of the characteristics that made it suitable for it’s original specific use or purpose, at which point one can only conclude that nothing has changed.
In order for ATF’s skewed version of reality to work, it requires that the object being redesigned require no alteration whatsoever. It’s evident why ATF picked the definition of redesign it did. If altering the function of an object can be achieved by merely using it in a different manner then by that definition it was “redesigned”. Combined with the intent requirement from the definition of “rifle” the firearm has now become a rifle.
As with everything, the devil is in the details. Courts typically give great deference to administrative agencies but I’d be curious to see which dictionary a court would select if this were to be challenged in any capacity. What makes Webster’s II New College Dictionary the authority on the definition of “redesign”? As it turns out, probably nothing.
“I think that it’s probably wrong, in almost all situations, to use a dictionary in the courtroom,” said Jesse Sheidlower, the editor at large of the Oxford English Dictionary. “Dictionary definitions are written with a lot of things in mind, but rigorously circumscribing the exact meanings and connotations of terms is not usually one of them.”
Mr. Shieldlower continued “It’s easy to stack the deck by finding a definition that does or does not highlight a nuance that you’re interested in.” Even the Supreme Court Justices themselves have utilized over 120 different dictionaries in defining terms which would be suggestive of “cherry picking”. Not to mention, some of the Justices interested in the original meaning utilize dictionaries from the time period to obtain their definitions. There is no question in my mind that ATF didn’t grab the first dictionary available and use it.
If you or anyone you know has an encounter with law enforcement regarding the legality of the use of a SigTac SB15 brace or were arrested and want legal representation, don’t hesitate to contact us at 1-800-313-0416.
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