Redesign or Redefine: An Open Response to ATF’s Unstable Determinations

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.

sigbrace

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.

sigbracesbr

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.

sb15firearmblog

Photo Credit: The Firearm Blog

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.

dictionary

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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39 Comments

Filed under ATF, Firearms Law

39 responses to “Redesign or Redefine: An Open Response to ATF’s Unstable Determinations

  1. Grant

    This is the best analysys and dissection of the flawed logic employed by ATF in this letter. Looking forward to how this plays out. Thus serene like a total “teach” on the part of ATF. It’s specious and sloppy.

    Like

  2. Two things.

    1) It comes down to intent. By attaching the brace to an AR pistol buffer tube, that could be considered “redesigning” the firearm, and therefore anyone who attaches the brace with the intent of shouldering it would have created an SBR. But how does the ATF prove the intent? Possibly by witnessing you fire from the shoulder. On the other hand, if you purchased a pistol with the brace already attached, then you haven’t modified the firearm in any way, and so nothing was redesigned.

    2) Using the ATF’s definition of redesign, we must then look to the definition of function. Google’s definition is “an activity or purpose natural to or intended for a person or thing.” In other words, intent. A firearm’s function is not predicated on its use but on its natural, intended purpose.

    Like

    • ARluv

      So if a weapons natural intended purpose is to kill, and I don’t use it to kill, have I magically redesigned to a peace loving hunk of metal?

      Like

      • David E

        A firearms’ intended purpose is to expel a soft slug of metal out a narrow tube by the action of expanding gases – where that slug goes is completely up to the operator.

        Like

  3. Pingback: 1st Person charged for AR Pistol with Brace, not even shouldering it to shoot ! - Page 4

  4. So, by THEIR logic, shooting any rifle or shotgun with only one hand would result in a “weapon designed or redesigned, made or remade” to be used as a pistol…

    But in 18 U.S.C., § 921(A)(29) and 27 CFR § 478.11 we find that:

    “The term ‘Pistol’ means a weapon ORIGINALLY DESIGNED, made, and intended to fire a projectile (bullet) from one or more barrels when held in one hand”

    …with the key being the words “originally designed” which means ATF’s old letter to SIG was correct in stating that usage did not change the classification of the firearm, but the new ruling is in direct contention with the very definition of the term as written and voted into law by Congress. This position is also consistent with ATF’s long standing position that a receiver was defined by the form that it was originally built into regardless of any modification made thereafter.

    Like

    • Oh…and I forgot. According to ATF’s tortured logic, how does using two hands when shooting a handgun not turn it into an AOW since you are effectively “remaking” a firearm designed to be used with one hand into a firearm “remade” to be used with two hands?

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      • David E

        In the same vein, if I may follow Mr Markle, once I shoulder the SIG Brace, it becomes an SBR…when I take it down, did I “redesign” it again, and now it’s magically just a pistol, or will it always be an illegal SBR? With this logic, they can probably safely assume every single Brace equipped pistol has been shouldered since the thing went on sale, so will they go to every single Brace owner and charge them with owning an unregistered SBR? Will every single person who has pictures or video online now of them misusing now be subject to arrest and prosecution? Are they relying simply on fear to protect them, because the staggering amount of work they have raised for themselves, IF they are to actually FOLLOW this directive, will consume the resources of the entire Department for the next 50 years.

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  5. Tyler Durden

    Since the crux seems to be intent…

    Would firing an unbraced (naked buffer tube) AR pistol from the shoulder also transform it into an SBR? By my reading, it would be as much a “redesign” as misuse of a brace.

    Like

    • Good question. ATF does specifically note that any individual letter to the contrary has been revoked. What remains to be seen is whether other not that applies to previous determinations regarding other things people have been able to do to AR pistols. By my reading, it would appear that this letter was only in regard to the SB15 brace. But knowing ATF, it could have opened a whole can of worms that remains to be seen.

      ATF, to my knowledge, has said in a previous determination letter (which I’ve been unable to find a copy of) that shouldering a buffer tube is not illegal. There have also been determinations that placing a cane protector tip on the end of the buffer tube was not illegal (but I’m unsure as to the context as I don’t have that determination letter in front of me).

      Like

  6. Pingback: Sig Brace is now Illegal to use on Shoulder! - Page 6

  7. Joe

    You better also come up for a defense for the “use” of this as a ‘shoulder stock’. The ATF may lose a court battle over ‘redesign’, but that wont mean that they still wont view/rule the USE of these pistol as shouldered weapons as an illegal ACTION.

    There needs to be more of an offensive launched to go after shooting down the claim that the use of these pistols against your shoulder is not in anyway an illegal act. For this niche argument and others… If ATF wins this round they might reclassify a pistol grip on a rifle as illegal because it would allow the rifle to be ‘fired from the hip’, thus constituting some kind of wack-o ruling that the rifle is somehow redesigned for hip-fire, bump-fire, bullsh*t, etc.

    This is a pivitol moment not just for the SIG brace, but for many other things that might come down after it.

    Like

    • halfinn

      There’s no law against using a pistol in a manner consistent with a shouldered arm. What’s illegal is the affixing of a shoulder stock. If there’s a part of the pistol that can be rested against the shoulder but is something else, e.g. a buffer tube, this does not violate the letter of the law in any way.

      The problem is that the ATF wants to play “we know it when we see it” with the law, when that’s not how law works. It’s the same issue with the SIG MPX muzzle brake that they insist is illegal because it’s a silencer part. The law only outlaws three things: silencers, combinations of parts (plural) intended to build a silencer, or any single part whose only use is as a silencer part. MPX brake is not a silencer, not a combination of parts, nor is its only use as a silencer part, therefore it is legal. ATF thinks their OPINION trumps the letter of the law, which is frankly OUTRAGEOUS behavior by a government agency. They are legally required to enforce the law as written. If they think it should be written differently to include more things, they need to talk to congress, not just make stuff up.

      Like

  8. dennis barton

    By using the ATFs definition of redesigning the sb15 if you use it like a stock its nfa than wouldnt using a regular stock like a sb15 or a shockwave brace now redesign it ad make it non nfa and totally legal?

    Like

    • Dennis,
      I would highly doubt it. It would appear that if you attach a SB15 brace to an AR pistol and leave it laying there, it is in fact an AR pistol. If you pick it up and shoot it in the manner intended, it is still an AR pistol.

      It would seem that ATF is contending the moment you should it with a SB15 brace, you’ve now redesigned the product AND intended it to be fired from the shoulder fulfilling the statutory definition of a rifle. The barrel length being shorter than 16″ leads to it being classified as a firearm and thus we are left with a short barreled rifle.

      Following their logic, if you attached a stock to a firearm with a barrel length of less than 16″ you’ve created a short barreled rifle (and from what your suggesting, an illegal one, unless you have the applicable Form 1 or Form 4 for that firearm). I have a hard time believing that ATF would agree that utilizing a stock in the manner which you describe would be an act of redesign and thus transforms the firearm into a pistol.

      If you look at how they classified the SB15 brace, it was based upon the manner which it was designed (as a brace not a stock). A stock is a stock (at least according to ATF) and thus we are left with this conundrum that it’s possible for a brace to become a stock (again, according to ATF) but not for a stock to become a brace (which is what I would venture is a safe bet). My .02 is that ATF would say you’ve created an illegal SBR unless you had the applicable Form 1 or Form 4 for that firearm.

      Hope you found that helpful.

      Like

  9. What about us retailers who hand an AR pistol, with a brace, to a customer who proceeds to shoulder it? Does this now redesign it as an SBR?

    Like

    • Repubsareone

      Well, because the NFA or GCA doesn’t define the word “use” we see that according to the Webster Dictionary 2015 definition of the word “use” is, “the legal enjoyment of property that consists in its employment, occupation, exercise, or practice “. Because it is common knowledge and practice that the expelling of a bullet defines use in a weapon, the simple action of placing a pistol to the shoulder area of the body does not constitute a redesign of an SBR.

      Like

    • Another good question. No different than the hypothetical I posed in my post.

      It would seem according to this letter ATF would have considered it redesigned as a SBR. Only difference is that it is not their firearm. Whether that would make any difference or not remains to be seen.

      Like

      • Jaime

        If I purchase the arm brace with the intent to use it as designed, but inadvertently shoulder the firearm, have I committed a felony by their definition? I am inclined to think not because my intent was not to shoulder the firearm. They have made their definition ambiguous because they used the word intent. How can they quantify your intent?

        Use as defined by Merriam – Webster is the act of doing something. Intent is your aim or purpose. I purposed (my intent) to use the arm brace as designed (as an arm brace) when I purchased it. However, I inadvertently (inadvertent:not intended or planned) shouldered the firearm with the arm brace. Where does that leave me? By their definition, my intent was to use the arm brace as designed. They cannot determine my intent was otherwise. My use of it may not have been as it was designed, but my intent was… Only the thought police could make a case against my intent. They worded their determination extremely poorly. Please correct me where I’m wrong.

        Like

  10. With a red dot the ar pistol does not need to be shouldered at all. Many times I have positioned my brace more towards my chest than my shoulder for a positive lock against my body. At no time does the brace make contact with my shoulder. Therefore no shouldering as occurred.

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    • Jaime

      Yes, it looks like the Obama admin. MO – legislate as much gun control as they can. Don’t know if the previous chief who issued the ATF determination stating that the use of the arm brace on the shoulder, or however it may be used, did not re – make the pistol into an SBR was a previous administration holdover or not, but the acting chief who issued this determination is an Obama
      appointee – he invalidated any and all previous determinations as regards the arm brace. It’s shameful how rights are legislated away based on opinions, and they apparently get away with it.

      Like

  11. gB

    Since 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” wouldn’t its use by those without “limited strength or mobility due to a handicap” be redesigning it? Seems to me that anyone not falling into the protected category would be misusing it if ATF really wanted to be poopyheads about it. Also, firing the pistol without “sliding and securing the brace onto ones forearm and latching the Velcro straps” is not using as originally designed and so, by the logic indicated in the letter, “redesigning” it.

    Like

    • Jaime

      It appears to me that the key qualifier, as written by ATF, is the purchaser’s intent. Call it what you may (nitpicking, etc.), but as I read their determination, one of their flaws (not to mention the absurdity of their determination and total disconnect from reality) is using the word intent. By the letter of their determination, so long as my intent was to use the brace as designed (as an arm brace), should I use it in another manner I am not disallowed to do so because of my original intent, which led me to purchase it.

      Like

      • This new letter does two things. One, it scares the sheep to sell or never buy the brace in the first place. Second, it cuts off accessories being marketed to be inserted into the brace. If there was an obvious display of intent on not using the brace as a forearm brace it would be a med pack built to be stuffed into it. A little pre-emptive legislation to deflate the established brace market as well as a new market ready to expand its use.

        Like

  12. Pingback: SayUncle » Thoughts on ATF’s letter on the SB15

  13. Zundfolge

    18 U.S. Code § 921 defines a handgun as “A firearm which has a short stock and is designed to be held and fired by the use of a single hand”

    So if I shoot one of my handguns using a Weaver or Isosceles stance (and using TWO hands) have I just “Redesigned” my handgun into an AOW or SBR?

    Like

    • Zundfolge

      Furthermore, Wouldn’t putting the buffer tube of a non SIG brace equipped AR pistol to your shoulder also “redesign” your AR pistol into an SBR? Why does the presence of a brace matter if “intent” is all that matters? Before SIG invented this thing, most of the AR pistols I’ve seen had a foam rubber sleeve over the end of the buffer tube. Under this ruling wouldn’t that be just as evil as a SIG brace?

      Like

    • David

      I’d like to see a picture of BATF agents practicing at the range. Surely they all ONLY shoot single handed.

      Like

      • Zundfolge

        F-Troop is already exempt from NFA so it wouldn’t matter if they “redesigned” their handguns into AOWs since they can also carry sub guns.

        Like

  14. Mindset

    So, just being completely nit-picky myself, I ask this. If a Handgun is described as: 18 U.S. Code § 921 “A firearm which has a short stock and is designed to be held and fired by the use of a single hand” and Websters defines “Stock” as c (1) : the wooden part by which a shoulder arm is held during firing… then who clarifies why “stock” in that wording doesn’t mean “a handgun may have a “short stock”? I haven’t seen a definition describing a stock as a part of a firearm gripped with the hand, i.e. a “pistol grip” on a shotgun.

    Like

  15. some dude with a cold

    If only someone held the BATFE to the same standards every other agency has to live with.

    Cough…Appalachian Power v. EPA…cough. Ah, ah, ah, ah…legislative rulemaking….choo.

    Like

  16. David

    Great read, and I agree completely. So, as clearly there is a great injustice here, how about your firm takes on the ATF? We can all write about it, make comparisons, talk about how wishy washy they are, but unless it actually accomplishes something, it’s mostly hot air, isn’t it? Less talk, more action, please. I anxiously await to hear your firm has filed a case. It sounds like you are well armed to do so.

    Like

  17. gB

    By the way, I thought it was already illegal to add a vertical grip to a pistol, so, doesn’t the third picture depict an illegal configuration?

    Like

    • Tyler Durden

      Unless it’s an SBR, yes. The Magpul AFG is ruled as OK, but traditional vertical grips are not allowed on pistols.

      Like

    • dsd

      that picture was done to test the SB15 arm brace – if you read the original posting it was attached to a “real” SBR as they were afraid of crossing the law with shouldering the SB15 brace – this was early on in it’s release before the first letter. the original post is still on the firearmblog site

      Like

  18. Mike

    I have a question. What if you have a ar pistol registered as an ar pistol lower? It had an ar pistol buffer tube and a sig brace. Had a pinned and welded barrel to 16 inches would that still be a pistol? If it was fired from the shoulder would it still be an sbr?

    Like

    • Repubsareone

      The moment you place a barrel with a length of 16 inches or more the pistol becomes a Rifle and at that point it wouldn’t matter if you had the brace on the weapon or a stock. I still don’t get why AR manufacturers don’t simply make all of their lower receivers pistol receivers. The AR platform lends itself to swapping things out just like the contender pistols that go from pistol to rifle and then back to pistol again.

      Liked by 1 person

      • There is no rule about the length of a handgun’s barrel. Put a long barrel on a handgun, and it is still a handgun unless there is some other factor to reclassify it.
        Arguably, the moment you shoulder this hypothetical long-barreled handgun, then it becomes a non-NFA rifle.
        The real question is “How would ATF 2011-4 apply in that scenario?”

        Like

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