Tuesday, January 27, 2015

BATF Pistol Brace Letter and Irrational Law

Properly installed arm brace at Sig Sauer booth at the Shot show.

On 16 January, just before the Shot Show, the BATF published an open letter on the subject of "The Redesign of "Stabilizing Braces". The letter was supposed to "clarify" the increasingly muddy, irrational, and stupid law. A combination of the thwarted original intent of the legislation, combined with continued bureaucratic desires to "grow the rice bowl*" and the irrational belief of disarmists that any additional regulation is good, not matter what, has resulted in our arrival at this point.

The National Firearms act regulation of short barreled rifles and shotguns from 1934 should be eliminated.   It made little sense when the primary purpose for the regulation was thwarted when it passed, it has become increasingly irrelevant, and it makes no sense at all after the Heller and McDonald decisions.

The reason for the ban on short barreled rifles and shotguns had very little to do with the criminal use of such items.   After all, criminals use handguns many, many, times more often.    Short barreled rifles and shotguns are, in fact, as modified and used by criminals, expediently manufactured pistols.

The National firearms act of 1934 originally lumped in handguns with full auto firearms.  It is clear that the Roosevelt administration wanted to subject pistols and revolvers to the same draconian regulations and taxes that machine guns were finally subjected to.   Congress simply would not go along.  It was a step too far for even the heavily Democrat Congress of 1934.

Once you understand that licensing of handguns to the point of prohibition was the major target of the legislation, the reason for including short barreled rifles and shotguns becomes clear.    What is the point of banning handguns if any person can buy a rifle or shotgun, a hacksaw, and make a functional pistol in fifteen minutes from that rifle or shotgun?

Michigan had served as a blueprint for this action.  First they had required licensing of handguns; then they made the possession of short barreled rifles or shotguns illegal.

The prohibition on short barreled rifles and shotguns was passed in the hope of making handguns so heavily regulated as to be impossible for an ordinary person to obtain.   Without that regulation, the restrictions on short barreled rifles and shotguns become non-nonsensical.

The BATF then did what bureaucrats do.   They worked hard to keep and enlarge their reason for existence, their "rice bowl"; and short barreled rifles and shotguns were one of the primary reasons.   The definition of a "rifle" and "shotgun" were based on the idea of them being "fired from the shoulder" so putting a shoulder stock on a pistol, even though it made the pistol harder to conceal, was ruled to be illegal, because the pistol then became a "short barreled rifle".   As a child, I struggled to understand what was so evil about shoulder stocks on pistols.  The logic escaped me, as it has, apparently all criminals.   I have yet to read of a crime committed by someone using a pistol with a shoulder stock attached.

Hope sprang eternal to the disarmists' heart.  They still hoped to make the citizen ownership of handguns rare, and eventually, banned.  As Pete Shields of Handgun Control stated:
The first problem is to slow down the number of handguns being produced and sold in this country.  The second problem is to get handguns registered.  The final problem is to make possession of all handguns and all handgun ammunition-except for the military, police, licensed security guards, licensed sporting clubs, and licensed gun collectors-totally illegal.
              Richard Harris, A Reporter at Large: Handguns,  New Yorker, July 26, 1976, at 53, 58 (quoting Pete Shields, founder of Handgun Control, Inc.) (boldface added, italics in original).

But that did not happen.  Handgun possession, in the face of an increasing crime rate, design innovation, movies glorifying handgun use, and increased prosperity, soared.   The revolution in concealed carry licenses happened.  All 50 states now have them.  More people have more handguns than ever before in the United States, and carry them more, and crime rates have been consistently dropping for 20 years.

The desire to reduce the number of handguns has been a complete and utter failure.  Even the agitprop to make handguns socially unacceptable has completely failed.  The idea of banning handguns, which was widely accepted in 1960, now appeals to only one quarter of the total population.

The utter destruction of the hope of substantially reducing the number of handguns in American hands occurred in 2005 with the Heller decision in the Supreme Court, which held that the second amendment of the Constitution included, as a fundamental, enumerated right, the right to possess a loaded handgun in the home for the purpose of self defense.

With the right to possess handguns for self defense enshrined in a recent Supreme Court decision, the last shred of a reason for the ban on short barreled shotguns and rifles died a death without even a whimper.  Few even noticed.   If people have a right to possess handguns, and rifles, and shotguns, what is the rational to ban intermediate arms: short barreled rifles and shotguns?   There isn't any.   At the very worst, the same restrictions that exist on the possession of handguns should apply to short barreled rifles and shotguns, as they do in many other countries of the world.

But, the primary purpose of a bureaucrat is to ensure that his job is kept safe.  Either he does this out of pure self interest, his vision of the public good, or a combination of the two.  In any case, the results are the same.  Bureaucrats will fight to keep their rice bowl, tooth and nail.   The disarmists fight to keep their dream of citizen disarmament alive, even when it no longer makes any sense, if it ever did.

Now we have reached the insanity of the current BATF letters.  First, they ruled that it was legal to have a forearm brace on a pistol, if the intent was to fire the pistol one handed.   This is technically correct, but what has it to do with crime?  Absolutely nothing.  It is just rice bowl rhetoric.  Then, they published a letter saying, that if you used one of these pistols with the forearm brace installed, as a short barreled rifle with a short stock, it was legal, because what made the brace legal was the intent with which it was made, not how it was used. Again, relationship to use in crime? Zero, Zilch, Nada.

Finally, we have the latest installment, which does a reasonable job of muddying the regulatory waters still further.  The new letter states that if you use the arm brace as a stock, you have "redesigned the firearm", it is now a short barreled rifle, and you are now in violation of the law if you do not have the tax stamp.  Here are a couple of paragraphs from the BATFE  OPEN LETTER ON THE REDESIGN OF “STABILIZING BRACES”(PDF)
The pistol stabilizing brace was neither “designed” nor approved to be used as a shoulder stock, and therefore use as a shoulder stock constitutes a “redesign” of the device because a possessor has changed the very function of the item. Any individual letters stating otherwise are contrary to the plain language of the NFA, misapply Federal law, and are hereby revoked.

Any person who intends to use a handgun stabilizing brace as a shoulder stock on a pistol (having a rifled barrel under 16 inches in length or a smooth bore firearm with a barrel under 18 inches in length) must first file an ATF Form 1 and pay the applicable tax because the resulting firearm will be subject to all provisions of the NFA.

To be fair, at least some in the firearms community are saying that the letter is simply badly written, and what it "really means" is that if your intent was to use the brace as a stock when the firearm was built, then it is a violation.  But, if you use the brace as a stock only because it is there, and you did not intend to build it that way, it is legal.  From Nick Leghorn in TTAG:

The following is a paraphrased version of the letter that might make a little more sense to the lay person, and including the previous letters’ rulings:
You asked if building an AR pistol with a SB-15 brace required a Form 1 as a Short Barreled Rifle. If you build the pistol as described and intend to use it as a pistol, then it does not require a From 1 and is just a pistol. If you intend to build a pistol and it is improperly used from time to time, that’s OK. If you intend to build the firearm to be a Short Barreled Rifle and use the pistol brace as a stock, then you intend to build an SBR and that requires a Form 1 and a tax stamp. If you intend to build a small gun designed to be fired from the shoulder, that is an SBR no matter what parts you use.
So, there we have it.   A obsolete law that was meant to make control of handguns plausible, left in place by legislative oversight, coasting on legal momentum from a dying dream of disarmament, barely kept alive by desperate bureaucratic support to maintain their rice bowl.  This sort of stupidity should not last.   It should be confronted and eliminated.    I hope it will be, but as a famous person said of human stupidity, it is the only thing that is in truly infinite supply.

Some credit must be given to Sig Sauer here.   They are not taking the vague and poorly written letter as definitive. As quoted in americanrifleman.org:
“We question ATF’s reversal in position that the classification of the brace may be altered by its use.  We are reviewing the legal precedents and justification for this position, and will address our concerns with ATF in the near future.

“We will vigorously defend the classification of all of our products and our consumers' right to use them in accordance with the law. If we find that the open letter opinion is outside the scope of the law, we will seek further review.”
The saga of this law is a clear and utter failure of the legislative process.  It should have been repealed at least a decade ago, when the Heller decision came down from the Supreme Court.   But powerful special interests in the BATF bureaucracy and those who wish to disarm the citizenry, have been able to block needed reforms.

Fantasies about crime and guns cannot stop reform forever.   The people and legislators are becoming educated about the particular idiocy of this law.  With hard work, it will eventually be eliminated.   It made little sense when passed,  80 years ago.   It makes no sense whatsoever, now.

*rice bowl: Military slang introduced from Southeast Asia.  It is loosely translated as "the means to feed yourself at the public's expense".

Definition of  disarmist 

 ©2015 by Dean Weingarten: Permission to share is granted when this notice is included.
Link to Gun Watch

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