Readers may remember the blog article I wrote when ATF dropped a bombshell at SHOT Show 2015 where it released an open letter which stated 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 concluded that “[a]ny individual letters stating otherwise are contrary to the plain language of the NFA, misapply Federal Law, and are hereby revoked,” which sent part of the firearms community into a panic, with the remaining portion laughing at such a ridiculous interpretation of the term “redesign”. (I was in the group laughing).
However, today is the day where you can all rejoice as ATF, at the behest of SB Tactical, has reexamined its logic (or lack there of) utilized in the open letter. The new determination letter written by Marvin Richardson puts the unfounded fears of the past two years to rest.
The letter begins by describing the definition of a firearm under the National Firearms Act or NFA, the definition of a rifle or shotgun and that ATF has long held that a pistol with a barrel length of less than 16 inches and an attached shoulder stock is an NFA firearm pursuant to the plain language of the statute. ATF further states that “because the stabilizing brace was not designed as a shoulder stock, ‘use’ of the device as a shoulder stock would constitute a ‘redesign’ of the firearm to which it was attached, resulting in the classification of the firearm as a short-barrel rifle.
While I don’t have SB Tactical’s letter to ATF, it appears that they made some arguments that ATF’s definition of “use” was indefensible based on some arguments that appear eerily similar to ones I had advanced on this blog, such as misusing a common household item like a screwdriver as a pry bar. ATF responds that the result of accepting such an argument is that a device which was designed, marketed and intended for use only to shoot from the arm, could be attached to a firearm and shouldered without falling into the purview of the NFA. An argument that ATF was quick to expressly reject.
However, ATF continues on “[a]n accessory that can be attached to a firearm in any one of several configurations must be evaluated to determine whether attaching it in each of those configurations constitutes ‘making’ an NFA firearm…” ATF has previously concluded that attaching a handgun to a forearm brace does not “make” a short-barreled rifle because in the configuration that was approved by the Firearms and Ammunition Technology Division (“FATD”) it “is not intended to be and cannot comfortably be fired from the shoulder.”
Here is the part I really like (because ATF seems to adopt something I’ve been saying all along).
If, however, the shooter/possessor takes affirmative steps to configure the device for use as a shoulder-stock — for example, configuring the brace so as to permanently affix it to the end of a buffer tube…removing the arm-strap, or otherwise undermining its ability to be used as a brace — and then in fact shoots the firearm from the shoulder…that person has…”redesigned” the firearm for purposes of the NFA.
(emphasis added). It would now seem that ATF has changed the definition of “redesign” it is utilizing to the actual layman’s term which means that you actually did something to change the design, rather than just simply misuse.
The letter continues to explain
[t]o the extent the January 2015 Open Letter implied or has been construed to hold that incidental, sporadic, or situational “use” of an arm-brace (in its original approved configuration) equipped firearm from a firing position at or near the shoulder was sufficient to constitute a “redesign”, such interpretations are incorrect and not consistent with ATF’s interpretation of the statute or the manner in which is has been historically enforced.
In short, it seems that ATF has re-examined the perverted logic it used in the January 2015 Open Letter to come to a more rationale determination about the use of a product.
However, there is a note of caution with this happy tale. It is still possible to construct a short barreled rifle from a brace equipped pistol. The letter explains “…an item that functions as a stock if attached to a handgun in a manner that serves the objective purpose of allowing a firearm to be fired from the shoulder may result in ‘making’ a short-barreled rifle, even if the attachment is not permanent.”
As you may remember, I’ve contended that if you purchased a brace with the intent to build a gun that would be fired from the shoulder, if the barrel length is less than 16 inches or the overall length is less than 26 inches, you’ve just created a short barreled rifle. Why is that?
The NFA defines the term firearm to mean among other things “…(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;…”
The term rifle is defined as “a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed cartridge.”
Key point being that it is intended to be fired from the shoulder. As such, you would have a firearm (Short Barrel Rifle) under the NFA which would be subject to its controls.
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