A few days ago, Robert and the rest of the internet was all up in a tizzy about the possibility that the ATF has “reversed” its decision on the SB-15 pistol arm brace. In reality they simply had read the letter wrong, and I think I did a good job putting them to rights. Now a new ATF letter has come out regarding a different pistol brace accessory, and the language of that letter is consistent with the previous letters and confirms that what really matters is the intent of the person manufacturing the firearm. But while that’s all good, there might be some storm clouds on the horizon if I’m reading this right . . .
Before we begin, let me just re-iterate that I am not a lawyer. The following does not constitute legal advice. ATF FTB letters are not binding legal documents, and the views expressed within them are valid for the recipient of that letter only. Any conclusions drawn from these letters are pure conjecture and may not be accurate. However, after consulting with experts in the field and actual lawyers, I think I have enough information to shed some light on what is going on.
PrinceLaw has the letters and was the first to publish them, and it appears that Thordsen Defense is the manufacturer in question. They have designed a buffer tube cover intended to provide a cheek weld for people firing an AR-15 pistol, and with the recent confusion about the SB-15 brace and its legality they wanted the ATF to give their blessing. In essence, Thordsen’s device is pretty much identical to the SB-15 in terms of the legal facts — it was designed to let people fire AR-15 pistols more comfortably, but not to make a stock. The reply from the ATF is exactly in-line with every other letter we have seen to date. From the ATF’s letter:
The receiver extension/buffer tube on an AR-type pistol serves a legitimate, vital function in the operation of the weapon system; and if utilized as originally designed is not considered to be a shoulder stock. Further, a pistol that has an AR-t1pe buffer tube or similar component assembled to it, which consequently allows for the installation of a saddle/cheek enhancement accessory, is not classified as a SBR; nor unlawful to possess.
However, if a pistol assembled with an AR-type buffer tube or similar component; which in tum, redesigns the subject AR-type pistol to be designed or redesigned and consequently intended to be fired from the shoulder; an NFA weapon as defined in 26 U.S.C. $ 58a5(a)(3); has been made.
There are two very crucial facts that the ATF is pointing out here, and they do so in an extremely clear manner. I just want to make sure we are all on the same page, so let me expound on them a little bit.
First and foremost, the difference between a pistol and an SBR is all about intent. Let’s go back to the legal definition of a pistol real quick. Under the National Firearms Act (NFA), 27 C.F.R. § 479.11, “pistol” is defined as:
… a weapon originally designed, made, and intended to fire a projectile (bullet) from one or more barrels when held in one hand, and having (a) a chamber(s) as an integral part(s) of, or permanently aligned with, the bore(s); and (b) a short stock designed to be gripped by one hand and at an angle to and extending below the line of the bore(s).
Note the use of the words “designed, made, and intended.” In order for the definition to be met and the item to be a pistol, all three of those conditions must be met. It must be originally designed to be fired with one hand. It must be made according to that design. And finally, no matter what the design, it must be intended to be used as a pistol from day one.
In the case of the SB-15 (and whatever Thordsen Defense cooked up), the device satisfies the first two requirements in and of itself. The item is designed and made to allow someone to fire a pistol using one hand, and their intent is pretty clear thanks to the letters and statements they have made. Moving forward to the original manufacturers of AR pistols with the devices pre-installed, the three requirements are met on their end as well. SIG SAUER, for example, designed, manufactured, and intended their SB-15 equipped AR pistols to be fired with one hand and not from the shoulder. Because the three requirements are met from the factory, end users are welcome to do whatever they want with the finished product. The key is that in that case, the manufacturer’s intent is what matters when the firearm was originally created.
Some of you may have figured out the possible looming storm cloud already. For those of you who still don’t see it, let me ask you this: what about if you manufactured the firearm instead of SIG SAUER?
Let’s re-visit the land of legal mumbo-jumbo and look up the definition of “make” in terms of NFA devices.
The term “make”, and the various derivatives of such word, shall include manufacturing (other than by one qualified to engage in such business under this chapter), putting together, altering, any combination of these, or otherwise producing a firearm.
When normal people think about “manufacturing” a firearm, usually a CNC machine or at least a drill press is involved in the process. The common sense definition of “manufacturing” something means taking it from the raw materials and building it into the finished item. However, for the purposes of the National Firearms Act, the act of “manufacturing” a firearm can be as simple as swapping out an upper receiver on an AR-15. If you put together or alter a firearm in any way from the original design specs, you are now the “manufacturer.”
This is where it gets sticky, and where the ATF might be trying to weasel its way towards prosecuting someone for improperly using an SB-15.
If someone manufactures an AR pistol using an SB-15 or some other stock-esque device (remember, the definition of “manufacture” is incredibly broad in this sense) AND the ATF can prove that their intent was to fire the firearm from the shoulder like a rifle, then the firearm is no longer a “pistol” because it no longer meets the definition. That point is illustrated in the ATF letter in that second paragraph above:
However, if a pistol assembled with an AR-type buffer tube or similar component; which in tum, redesigns the subject AR-type pistol to be designed or redesigned and consequently intended to be fired from the shoulder; an NFA weapon as defined in 26 U.S.C. $ 58a5(a)(3); has been made. [emphasis added]
Confused? I thought so. Let me illustrate it a little better.
Say we have two budding firearms enthusiasts, Johnny and Jamie. They both think the idea of a pistol AR with an SB-15 brace is a great idea, so they each buy all the necessary parts and build two identical SB-15 equipped AR pistols. Because they assembled the firearms, under the NFA they are now the “manufacturer.” Johnny posts some pictures of his new pistol on Reddit, with the title “Look at my cool new pistol!” Jamie posts a YouTube rant about how he out-smarted the ATF and got an SBR without the paperwork.
Johnny and Jamie are out at the range firing their new AR pistols from their shoulder (like a rifle) when the ATF rolls up and arrests them both.
In Johnny’s case, the ATF doesn’t really have anything. Johnny was the manufacturer of the firearm, but even though he was firing it from the shoulder there’s no proof that he intended to use it in that manner when he designed and made the firearm. In the United States, the Rule of Lenity comes into play at this point and requires that any ambiguity in the law (such as the intent of the manufacturer, that being Johnny) be resolved in the favor of the defendant. So even though the ATF can prove that Johnny was mis-using the SB-15 and that he was the manufacturer, they cannot prove that he intended to fire the firearm from his shoulder when he manufactured it and must assume that he intended to use it as a pistol. Therefore Johnny satisfies all three definitions of a pistol in his firearm and is good to go.
Jamie, on the other hand, is screwed. Because he posted a rant about how using the SB-15 was out-smarting the ATF, he has given the ATF proof that it was his intent to manufacture a short barreled rifle and not a pistol. Just like the previous ATF letter recipient who wrote a love note to the FTB saying that he wanted to build an SBR using the SB-15 brace, without that ambiguity there’s nothing for Jamie to argue and he gets thrown in the slammer.
My personal gut feeling is that this is the way the ATF is trying to move. They know that the barn door is wide open when it comes to the SB-15 brace, so they are looking for a poster child to prosecute and convict for building an illegal SBR with the brace. The problem is that this approach is extremely risky for all involved. To my mind there has only been one case where someone was put on trial for a technical violation of the National Firearms Act (some idiot put a vertical foregrip on a pistol) and the judge threw out the charge and called it ridiculous. If the same happens with the SB-15 and calling it an SBR, then those barn doors are edged just a little bit wider. On the other hand, if the ATF wins then it could kill the entire pistol brace market and send the AR-15 pistol back into the depths of uselessness from whence it came.