Author Archives: Adam Kraut, Esq.

About Adam Kraut, Esq.

Adam Kraut was born and raised in Chester County, PA. Active in scouting since kindergarten, Adam achieved the rank of Eagle Scout in 2004. After graduating high school, Adam attended SUNY Binghamton where he graduated in 2009 with a major in Political Science concentrating in politics and law. After taking a year away from academics, Adam attended Widener Law School at night while maintaining a day job and graduated in 2014. Adam is an avid firearms enthusiast, whose love for firearms began in Boy Scouts at Camp Horseshoe. Adam’s experience in the firearms industry as the general manager of a Federal Firearms Licensee, who is a Class 3 dealer, gives him a working knowledge of the challenges the industry, licensees and individuals face on a daily basis. Having worked with industry leaders, individual licensees and individuals both from behind the counter and in a legal context, Adam is in a unique position to give advice with insight others may not have. In addition to being active in the courtroom, Adam is politically active to ensure that the Second Amendment rights of future generations continue to be protected. He is the host of The Gun Collective‘s show, The Legal Brief, where he dispels the various legal myths and misinformation in the gun world. Adam is also a frequent guest on The Firearms Radio Network‘s This Week in Guns podcast. In his free time, Adam volunteers with his old Boy Scout troop, cranks out ammunition behind the reloading press, can be found at the range training, enjoys hiking through the woods and cares for his small pack of dogs. Adam lives in Chester County, PA with his girlfriend and three rescue dogs.

OIG Documents Reveal Issues with the ATF’s National Firearms Registration and Transfer Record

Leave it to the Government to require individuals to register National Firearms Act firearms and screw up the registry leaving a number of individuals with firearms that were possibly registered with no proof or obtaining criminal convictions against those who had firearms that were possibly registered in accordance with the law.

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Of Arms and the Law editor David Hardy has a pending Freedom of Information Act Request against the United States. Yesterday, his attorney Stephen Stambouleih won a partial motion for summary judgment which resulted in the Department of Justice’s Office of the Inspector General having to turn over documents (note the documents themselves are from 2007).

While the revelation of the inaccuracies of the National Firearms Registration and Transfer Record (“NFRTR”) are nothing new, the documents reveal a very different perspective on the issue. OIG had taken a survey of ATF Industry Operations Inspectors (“IOIs”) on the NFRTR. Prior to IOIs conducting a compliance inspection of a FFL who has an SOT, they print off a list of the firearms the NFRTR says the dealer should have and compare it to the physical inventory.

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49.2% of the IOIs said that they requested an inventory report from the NFA branch one to two weeks prior to conducting an inspection. When asked how often there was a discrepancy between the report and the inventory 16.4% of the IOIs responded that it was all of the time, 30.1% said most of the time and 39.5% said some of the time.

When asked how often the discrepancy was due to the NFRTR, 10% of the IOIs responded that it was always the NFRTR, 34.4% said most of the time and 33.1% said some of the time.

While the multiple choice questions certainly draw into question the NFRTR’s validity, the open ended responses are even better.

Q12 – How do errors and discrepancies in NFRTR inventory reports affect your ability to carry out compliance inspections?

“This calls into question the accuracy of the information from the NFRTR, reflects poorly on ATF, and makes it difficult to hold FFLs accountable for correct records when the NFRTR is not held to the same standards. Often, follow-up work is required, but the records are not updated in the NFRTR.”

Interesting how the Government can maintain shoddy records and that is perfectly fine, but if a licensee makes a mistake in their record keeping, it is suddenly a “willful” violation of the Gun Control Act and puts their license at risk. Out of the 297 responses, 75 called into question the accuracy of the NFRTR.

Some other noteworthy quotes from the IOIs include:

“When I conduct an NFA inventory reconciliation, I start knowing that the NFA register will be incomplete or inaccurate.”

“Going into an inspection knowing that almost certainly there will be discrepancies, affects your confidence level initially.”

“It create a problem in that the FFL becomes frustrated that our records are incorrect, thus making ATF look bad from the onset. Yet ATF expects perfection from FFLs.”

“The FFL records appear to be more accurate than the information contained within ATF’s records.”

“In one instance, I received an NFRTR inventory report with more than 60 errors on behalf of the NFA branch.”

“I basically have to depend more on the FFL’s inventory records than on the NFA Branch.”

The NFRTR’s inaccuracies place a number of individuals at risk in varying capacities. For some it may result in the seizure of a firearm, loss of license or at worst, a felony conviction. Hopefully Mr. Hardy’s FOIA request will continue to shed light on the inaccuracies of the NFRTR.

 

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Don’t forget, petitions for the 2018 NRA Board of Directors are being circulated. If you would like to learn more about me and sign a petition to place me on the ballot for this year’s election visit my website: adamkraut.com.

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Brace for Impact…ATF Clarifies Its Illogical Position on Users Shouldering Brace Equipped Pistols.

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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).

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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.

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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.

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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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Attending the NRA Annual Meeting in Atlanta? Be sure to stop by Room B403 on Thursday from 2 PM to 6 PM, Friday 8 AM to 6 PM or Saturday 8 AM to 4 PM to cast YOUR ballot for me (Adam Kraut) for the 76th seat of the NRA Board of Directors. All NRA Members (regardless of membership level) who have been members prior to March 9, 2017 can vote.

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Filed under ATF, Firearms Law, Uncategorized

Results of a Right to Know Law Request to the PA Game Commission Regarding Their Survey of Hunters and Semi-automatics for Big Game Hunting

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Recently, after I blogged about the list of approved animals to hunt with a semi-automatic in PA, I submitted a Right to Know Law request to the PA Game Commission.

I sought records which included the survey itself, any and all responses, and documents relating to the selection of those who would receive the survey, information (age, county) of the individual completing the survey.

The cost to produce the records I requested would be almost $400, as there were an estimated 1,473 pages of records that were responsive to my request. I was informed that approximately 75% of the respondents returned the survey via the USPS, which accounted for the cost associated with the production of the records.

The Commission did furnish me with the responses that were returned electronically (523 responses). Please note, this only accounts for 1/4 of the total responses received.

I sent the responses I received to a fellow member on AR15.com who is more well versed in decoding the information provided. He responded that “the sample, at least the observable portion, is rather skewed geographically and by age.”

He found that within the partial dataset there was a high degree of correlation between the ownership of a semi-automatic firearm and support and a high degree of non-ownership and strong opposition. Out of the 523 respondents that I received results for, less than 40% owned a semi-automatic rifle. It was further explained that opposition increased with age as well as counties that had the highest opposition rates also had the highest rate of response.

He also noted concerns relating to the sample population. In order to determine whether a representative sample of PA hunters were surveyed, we would need more information such as a summary detail on the CID pool from which the sample was drawn and populations by county with counts by age.

As for the methodology, I was told that the survey recipients were chosen via a SQL Server Reporting Services (SSRS) report that utilizes a data source based around a T-SQL query that makes use of the built-in NEWID function. Since, that stuff is a bit beyond my knowledge scope as to technology and databases, the response may have well have been in french.

The was it was explained to me was that, the “function assigns each distinct Customer ID (CID) number within the given parameters a randomly generated globally unique ID number.  An example of this ID looks like  6F9619FF-8B86-D011-B42D-00C04FC964FF.  These Customer ID numbers are sorted by the generated ID. The desired number of CID’s are taken from the top of the sorted list.  These randomly select CID’s are then joined with the associated demographic information.” 

As my technical resource notes

The sampling method used, (randomly assigning a Global ID and sorting in alphanumeric order)  is inherently flawed, as there is no way to ensure that the resulting sample is representative of the hunter population as a whole. The preferred method used throughout market research would be a “stratified random sample.”
By using county and age as strata, the PGC would have ensured, with 99% confidence, that the sample group was completely representative of the 900,000+ PA hunter population.
Choosing not to use this method, in conjunction with the vague statement “within given parameters,” indicates incompetence at best, or intent at worst.

I’d like to remind readers that I am only working with a portion of the data that the Commission received. Without the rest of the information, we are only looking at a small portion of the picture. But it does seem to raise questions as to the validity in which the survey was conducted.

 

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Does Delta Airlines New Policy to Zip Tie Luggage Containing Firearms Violate Federal Law?

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Guns.com is reporting that Delta Airlines has quietly changed its policy related to passengers who are flying with guns. According to the NBC Affiliate in Fort Lauderdale

The airline will now have special tags to alert ground handlers to not put bags carrying weapons on the general carousel.

The baggage will go directly to a baggage service agent who is required to perform an ID check on the passenger who picks up the luggage, sources told NBC 6. The agent must then use zip ties to secure the bag.

This policy was apparently implemented after the shooting that occurred in the Fort Lauderdale airport, after the criminal retrieved his luggage, went to the bathroom to load his firearm and then proceeded to murder five people and injure six others.

Interestingly enough, it appears that Delta may be in violation of federal law by implementing such a policy.

18 U.S.C. § 922(e) provides:

It shall be unlawful for any person knowingly to deliver or cause to be delivered to any common or contract carrier for transportation or shipment in interstate or foreign commerce, to persons other than licensed importers, licensed manufacturers, licensed dealers, or licensed collectors, any package or other container in which there is any firearm or ammunition without written notice to the carrier that such firearm or ammunition is being transported or shipped; except that any passenger who owns or legally possesses a firearm or ammunition being transported aboard any common or contract carrier for movement with the passenger in interstate or foreign commerce may deliver said firearm or ammunition into the custody of the pilot, captain, conductor or operator of such common or contract carrier for the duration of the trip without violating any of the provisions of this chapter. No common or contract carrier shall require or cause any label, tag, or other written notice to be placed on the outside of any package, luggage, or other container that such package, luggage, or other container contains a firearm.

(emphasis added).

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Tags that are usually put INSIDE the luggage to indicate the firearm is unloaded.

It would seem, at least based upon what NBC is reporting, that Delta’s policy is potentially in direct contravention with what is prohibited by federal law. Perhaps Delta was unaware of the prohibitions against marking luggage containing firearms before it implemented its policy.

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Hunting with a Semiautomatic Firearm in PA? List of approved animals.

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As many of you know, the PA Game Commission voted on the regulations for hunting with semiautomatic rifles. As Attorney Prince previously reported, the Pennsylvania Game Commission voted against semi-automatic hunting for big game.

Which means the list of animals that people are able to hunt is not as large as it was previously thought to be. The Game Commission cited a survey that it randomly sent to 4,000 hunters in which they received over 2,000 responses.

According to this article, there were 2,002 individuals who responded.

The findings of the survey show clear support for hunting furbearers (55 percent support or strongly support), woodchucks (51 percent support or strongly support) and small game (42 percent support or strongly support, and 12 percent neither support nor oppose) with semiautomatic rifles.

For big game, while 28 percent of survey respondents expressed support or strong support for semiautomatic rifles, 64 percent of respondents said they opposed or strongly opposed semiautomatic rifles for big-game hunting, with 52 percent saying they were strongly opposed.

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“Small game is defined as: game birds (brant, bobwhite quail, coot, gallinule, geese, grouse, Hungarian partridge, merganser, mourning and Eurasian collared doves, pheasant, rail, snipe, swan, wild ducks and woodcock) and game animals (cottontail rabbit, squirrels, snowshoe hare and woodchuck).

The term furbearer applies to the badger, beaver, bobcat, coyote, fisher, mink, muskrat, opossum, otter, pine martin, raccoon, red or gray fox, striped skunk and weasel.”

Big game includes: Deer, Elk, Black Bear and Turkey.

If you have not already, be sure to contact the Game Commission to express your disappointment in their decision to not allow for semiautomatic rifles to hunt for big game. The Commission stated that if growing support for hunting big game with semiautomatic rifles emerges at some point in the future, they will give consideration to further regulatory changes.

Featured image photo credit: Gunsamerica.com

 

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Trump Signs Bill Reversing Obama Rule to Report Certain Social Security Recipients to NICS

Late last year, I blogged that the Social Security Administration published a final rule relating to the NICS Improvement Act of 2007.

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The final rule provided that:

An individual will have been “adjudicated as a mental defective” if during SSA’s claim development and adjudication process, or when SSA takes certain post-entitlement or post-eligibility actions, SSA will identify any individual who:

  1. Has filed a claim based on disability;
  2. Has been determined to be disabled based on a finding that the individual’s impairment(s) meets or medically equals the requirements of one of the Mental Disorders Listing of Impairments (section 12.00 of appendix 1 to subpart P of part 404 of this chapter) under the rules in part 404, subpart P, of this chapter, or under the rules in part 416, subpart I, of this chapter;
  3. Has a primary diagnosis code in our records based on a mental impairment;

    Primary diagnosis code
     means the code we use to identify an individual’s primary medical diagnosis in our records. The primary diagnosis refers to the basic condition that renders an individual disabled under the rules in part 404, subpart P, of this chapter, or under the rules in part 416, subpart I, of this chapter.
  4. Has attained age 18, but has not attained full retirement age; and
  5. Requires that his or her benefit payments be made through a representative payee because we have determined, under the rules in part 404, subpart U, of this chapter, or the rules in part 416, subpart F, of this chapter, that he or she is mentally incapable of managing benefit payments.

While the rule would not have affected anyone until December of this year, it will now no longer affect anyone.

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On February 28, 2017, President Trump quietly signed a bill that was passed in both chambers of Congress which reversed the implementation of this rule. As a result, the Social Security Administration’s regulation is now no longer a threat to about 75,000 Americans.

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Of course, those who oppose individuals owning firearms, are attempting to sway public opinion by using a narrative that President Trump signed a bill which reversed Obama’s rule to ban gun purchases by the mentally ill. Given that many individuals did not know or understand what the rule actually did, it is not surprising this narrative is being utilized to delegitimize what is a good decision for Americans.

 

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ak4nra_logo-01smallIf you are an NRA Life, Endowment, Patron or Benefactor member or an annual member of the past 5 consecutive years I ask that you please consider me in the election for the Board of Directors. Ballots arrived in the February issue of the NRA magazine to which you are subscribed. For more information, please visit www.adamkraut.com.

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4th Circuit Issues Devastating Opinion Regarding “Assault Rifles”

Today the Fourth Circuit Court of Appeals sitting En Banc issued a devastating opinion regarding “assault rifles” in Kolbe v. Hogan. The Fourth Circuit covers Maryland, West Virginia, Virginia, North Carolina and South Carolina.

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Kolbe challenged Maryland’s Firearm Safety Act of 2013 (“FSA”), which bans AR-15s and other military-style rifles and shotguns as well as detachable large capacity magazines, by contesting the constitutionality of the law under the Second Amendment, as well as bringing a Fourteenth Amendment Due Process and Equal Protection claim. (Quick note to the readers, the use of the terms “assault rifles”, “military-style rifles and shotguns” and “large capacity magazines” are being used in reference to the Court opinion and not the author’s belief that these firearms and magazines should be referred to as such).

At the District Court level, the judge ruled that the FSA was constitutional. While analyzing the Second Amendment claims, the Court expressed doubt that “assault weapons” and “large capacity magazines” were protected by the Second Amendment. As a result the Court employed an intermediate scrutiny analysis.

As the case trickled up the Court system, the 4th Circuit issued an opinion from a divided three judge panel which found “that the banned assault weapons and large-capacity magazines are indeed protected by the Second Amendment, and that the FSA substantially burdens the core Second Amendment right to use arms for self-defense in the home.” More importantly, the Court became the first Court in the country to require a strict scrutiny analysis in regard to the Second Amendment claims.

Unfortunately, the Court sitting En Banc had a different idea. It was happy to affirm the District Court’s opinion, “in a large part adopting the Opinion’s cogent reasoning as to why the FSA contravenes neither the Second Amendment nor the Fourteenth.” However, the Court did make an explicit statement that the District Court did not. The Court stated

[w]e conclude — contrary to the now-vacated decision of our prior panel — that the banned assault weapons and large-capacity magazines are not protected by the Second Amendment. That is, we are convinced that the banned assault weapons and large-capacity magazines are among those arms that are “like” “M-16 rifles” — “weapons that are most useful in military service” — which the Heller Court singled out as being beyond the Second Amendment’s reach…Put simply, we have no power to extend Second Amendment protection to the weapons of war that the Heller decision explicitly excluded from such coverage.

The Court explicitly adopted that intermediate scrutiny was the correct analysis to utilize. “[I]ntermediate scrutiny is the appropriate standard because the FSA does not severely burden the core protection of the Second Amendment, i.e., the right of law-abiding, responsible citizens to use arms for self-defense in the home.”

In its analysis the Court found that “[t]he FSA bans only certain military-style weapons and detachable magazines, leaving citizens free to protect themselves with a plethora of other firearms and ammunition. Those include magazines holding ten or fewer rounds, nonautomatic and some semiautomatic long guns, and — most importantly — handguns.”

Applying the intermediate scrutiny standard the Court found “the FSA survives such review because its prohibitions against assault weapons and large-capacity magazines are — as they must be — ‘reasonably adapted to a substantial governmental interest.’” The Court stated that “Maryland’s interest in the protection of its citizenry and the public safety is not only substantial, but compelling.”

Unfortunately, this means that yet another Court has refused to require a strict scrutiny analysis to a fundamental constitutional right. Perhaps the most troubling aspect is the Fourth Circuit believes that firearms like the AR-15 are not protected by the Second Amendment, opening the door for more restrictive legislation to be put in place and making it more difficult to challenge.

 

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