The National Firearms Act is one of the worst pieces of legislation in the history of the world ever. And I don’t just mean that in terms of infringing on our Second Amendment rights, I mean that grammatically as well. The law is as clear as mud, sometimes when it comes to relatively straightforward questions. Once again we seem to have run headlong into an issue that the NFA doesn’t clearly spell out. In this case, the ATF appears to have told someone that using the pistol brace “improperly” makes it an SBR. And while that is 100 percent true for that person, the ATF isn’t “reversing their decision.” The letter makes perfect sense, and it’s fully consistent with past communications. Here’s why . . .
I have had the benefit of spending some time with legal counsel, experts in this matter, as well as a Cuban Missile Crisis style conversation that…didn’t…happen with an ATF agent in the last few hours. As a result, things have been clearing up for me. The difference here, and why Alex Bosco’s letter doesn’t jibe with this latest one, is intent.
When Alex originally submitted his letter asking for approval of the pistol brace, he intended it to be used as just that: a brace for attaching AR-style pistols to an arm. The device is intended to allow someone to fire an AR pistol with one hand, a definition that is just peachy keen and in no way falls under the National Firearms Act. The important thing to remember here is that intent matters — Alex intended to make a brace specifically designed to allow people to fire a pistol with one hand.
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).
Intent plays a huge part in that definition, too, which is the problem — both for us and the ATF. The NFA talks about design details in this definition, but the biggest part of that statement is about intent. Since there is no way to factually determine intent in most cases, they default to a generally permissive status. If you say you intend to make a pistol, we believe you. Which is what they said in their next letter.
A little later, a letter came out from a police officer asking what they should do if they see someone using the pistol brace in a manner other than the way it was intended — if a firearm that is designed and intended to be used with one hand changes classification when used improperly. The answer was from the ATF was no, since the firearm was intended to be used as a pistol it is indeed a pistol no matter how the end user actually uses it. The same goes for individual manufacturers (those building an AR in their basement from parts). If they intend to build a pistol then a pistol they have built.
The issue apparently with this most recent letter is that the person writing it didn’t understand this nuanced point of law and basically outed himself to the ATF. It appears that he tipped his hand, telling them what he really wanted was a short barreled rifle, and was intending to build the firearm for that purpose.
Since he would be the manufacturer of that firearm, it would be what he intended it to be. In this case, a short barreled rifle. The issue is that the ATF’s tech branch aren’t exactly wordsmiths, and they produced a letter that contained all of the relevant facts and responses, but wasn’t exactly reader friendly. 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.
Robert’s article said that the ATF has “reversed” itself, and that’s not really true. This latest ruling is 100% consistent and in-line with everything else that has come before it. The entire reason we have the pistol brace and can use it in the manner to which we are accustomed is this idea of intent, and so long as the intent is to build a pistol when installing the brace there is no problem.
The moral of the story, once again, is that intent matters when “manufacturing” your firearm (which, in NFA speak, means assembling or altering the gun ). If you intend to make a SB-15-based pistol as a pistol, you are in the clear. But if you telegraph your intention to make an SBR by informing the ATF in writing that you plan to build it and not file any paperwork, expect the ATF to object no matter what parts you use.
In short, this guy basically sent a love note to the ATF letting them know that he was about to build an unregistered SBR. As long as you intend to make a pistol and don’t go sending superfluous letters, you should be just fine.