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Is the extensive muzzle brake permanently attached to the end of one version of the MPX’s barrel a muzzle brake or a “silencer”? The battle between SIG SAUER and the ATF has been raging for months. SIG SAUER’s position: it’s a muzzle brake. The part doesn’t reduce the noise of the gun in the slightest. But there’s a twist: SIG planned to make and sell a specially designed shroud that would transform the muzzle brake into a properly registered silencer. The ATF was not pleased. They dropped the ban hammer on the part. SIG SAUER sued. And now a judge has made his decision . . .

From the court decision:

In the present case, the ATF acted rationally in concluding that Sig Sauer intended the baffle core to be used only as a silencer part because the agency pointed to substantial evidence in the record to support its determination.

First, it is undisputed that the baffle core is an essential silencer component. Tr. at 55-56 (Doc. No. 31). It is, in fact, identical in design and dimension to the baffle core contained inside a removable Sig Sauer silencer. A.R. 824; see also Tr. at 55-56 (Sig Sauer’s counsel conceding that Sig Sauer has “basically taken the cap off [its] silencer . . . welded it into the gun, and [marketed the baffle core] as a muzzle brake”).

Second, Sig Sauer proposed to attach the baffle core to a pistol caliber rifle, which the ATF determined did not need a muzzle brake to function effectively. A.R. 818. Third, the ATF examined other muzzle brakes on the market and concluded that the baffle core was unlike other conventional muzzle brakes because it included expansion chambers and was considerably larger than the muzzle brakes that are already available for sale. A.R. 818-21.

Finally, it noted that muzzle brakes are designed to be no larger than two to three inches, which is considerably shorter than the baffle core, because a muzzle blast discharges after two to three inches, making longer muzzle brakes impractical.11 A.R. 822-23. All of these observations require expertise that is well within the ATF’s grasp. Thus, its conclusions are entitled to substantial deference from a reviewing court. Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989).

In short, since the judge bought the argument that muzzle brakes are “designed to be no larger than two to three inches” and the muzzle brake forms an “essential silencer component.” He was happy classifying the muzzle brake as a silencer. This is more than a little worrying.

A reasonable person would expect the ATF would judge an object based on what it is and how it functions, not based on how it could be used. Again, the muzzle brake in question doesn’t reduce the rifle’s sonic signature. The firearm’s design – which includes proprietary threading –  makes it impossible to “readily convert” the specified MPX into a suppressed weapon.

And yet, because the muzzle brake might be used as a silencer, it is a silencer. That’s like saying an oil filter might be used as a silencer, so we should regulate them like silencers. In this case, the judge has granted the ATF’s request for a summary judgement and closed the case. I get the feeling SIG SAUER will want to appeal, and hopefully SIG v. ATF II, Electric Boogaloo will fare better.

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    • The crux of the issue in my opinion is that “silencer” is defined in the law not only as something that muffles the report of a gunshot, but as any individual component of something that muffles the report of a gunshot:

      The term “Firearm Silencer” or “Firearm Muffler” means any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for the use in assembling or fabricating a firearm silencer or firearm muffler, any part intended only for use in such assembly or fabrication.

      I think that’s stupid as hell, but if I’m honest I have to concede that this muzzle brake IS intended for the use in assembling a silencer. It just is. That was the whole point, and SIG made that really, really clear in its marketing when they first showed it off.

      The idea was avoiding SBR regulation (the permanently-attached “brake” brings the legal barrel length to 16″) AND avoiding the wait to have the integrally-suppressed rifle in your hands. If it shipped with an integrally-suppressed upper, you’d have to pay for the entire gun and wait while it sat at your FFL for 9 months. In this config, you can buy it and shoot it with that ridiculous brake, only waiting on the tax stamp for the shroud that turns the brake into a silencer.

      BUT… one of the advantages and slick features of the MPX is that the barrels can be swapped in mere seconds. So, what SIG should do at this point is simply sell the MPX with a 16″ barrel and sell an integrally-suppressed barrel separately. That way you can have your rifle and have fun shooting it while the I.S. barrel is sitting in tax stamp purgatory. Then just swap them out in seconds when the approval comes through and you pick up the I.S. barrel. Maybe SIG could even do a “buy back” program where they purchase the 16″ barrel back from you. For people purchasing the I.S. one at the same time as the rifle, you could basically put down a deposit and get it back when you return the 16″ bbl to SIG, at which point they can slap it on another rifle that’s being sold along with an I.S. barrel…

      • From what I’ve read, the MPX gas system won’t run with a longer barrel; this brake is the only way to market the gun as a non-NFA rifle. Otherwise SIG would not bother with all this. Which is why the ‘intent being solely a silencer’ argument is crap; the intent is primarly to make the gun marketable as a rifle.

        • Even if it won’t run with a 16″ barrel they could make a 16″ barrel, half of which was a more conventional flash suppressor/muzzle brake. Jeremy’s approach still works with such a design.

      • One must note that the quoted text, “The terms “firearm silencer” and “firearm muffler” mean any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part intended only for use in such assembly or fabrication,” is _not_ contained in the bill passed by the congress and signed into law by the president: it is from the regulation promulgated as 18 U.S.C. 921(a)(24) by ATF under their “rule-making authority,” then published in the Federal Register, thereby giving it the effect of “law.”

      • “any part intended only for use in such assembly or fabrication.”

        That word “only” may be causing a problem with the judge’s ruling in this case. It’s like saying possession of a lighter, and just a lighter, is possession of drug paraphernalia. That’s probably the reason that last sentence of the law included the word, “only”.

      • It seems to me that SIG also has their out right there in the definition and that the definition is contradictory.

        “including any combination of parts, designed or redesigned, and intended for the use in assembling or fabricating a firearm silencer or firearm muffler,”
        The brake is designed to to be redesigned as the baffles as the silencer.

        “any part intended only for use in such assembly or fabrication”
        It is also however not intended only for use in such assembly or fabrication of a silencer as it is also intended to be used as a muzzle brake.

      • In order to muffle a shot we also need to bridge the short distance between chamber and silencer with a novel piece of tubing called a barrel. I think the point that SIG needs pick at is where the gun ends and the silencer begins.

  1. So, what the judge is saying, is that if you own fertilizer, you own a bomb, thus you must go to jail.

    I thought law school was supposed to teach you to follow the law, not make your own?

    • Constructive Possession is unfortunately a thing in case law. This is a bit of a twist though. Under a draconian application of Constructive Possession, you’d have to own *both* a shotgun in the closet *and* a hacksaw in the tool shed to “Constructively Possess” a SBS. This new ruling seems to imply you now only need one or the other to “own” an SBS. Or anything else for that matter…

    • You folks are taking this waaaaayyyy to the extreme. All the judge is saying is that ATF was not completely, totally, entirely out in space to decide that the thing was, in effect, a suppressor. He’s not even saying that they are correct in so deciding. he’s just saying that, since they were not totally out in left field, the decision they made will not be overturned by the higher court. Again, the judge is following the law as written. The problem is with the law that gives ATF (and other administrative agencies) so much latitude.

      • The problem with that is not even a suppressor “in effect”. It does not have the effect of suppressing sound as supplied.

        • But in Pre-Crime Unit Amerika, any step that can be construed as leading up to an actual crime IS A CRIME ALSO!

  2. I agree that it’s vague, one might even say arbitrary, and the fact that it has to even be an issue is monumentally annoying.

    That being said, Sig basically admitted it was a silencer part so why is anyone really surprised with this? They tried to be cute with something and got their hands slapped, nothing more nothing less. A little arrogant if you ask me.

    • So what if it is a suppressor component, it is NOT a suppressor. An upper receiver is also a component of a short barreled rifle. Do we make everyone get a tax stamp for every upper receiver?

  3. If it is indeed the same monolithic baffle core as their removable silencer, SIG didn’t REALLY think the ATF would let that fly, right? I mean I think it’s a great idea, similar to buying a “pistol” AR while waiting for Form1 to clear – but this is the agency that considers steel wool and washers to be silenced components.

    • And since everything in the universe affects interstate commerce in some way, the US federal government has UNLIMITED POWER TO DO ANYTHING AND EVERYTHING FOREVER, constitutionally!

      So sayeth the federal government. Who are we to claim otherwise? For now we still are allowed to make our criticisms, but should we ever act against the government’s interpretations we would be criminalized. But when the interests of the public and the rulers conflict, the interpretation of the rulers usually favorable to the rulers, not the public.

      • On September 26, 2015 at 11:31, ‘Paelorian’ says:

        “And since everything in the universe affects interstate commerce in some way, the US federal government has UNLIMITED POWER TO DO ANYTHING AND EVERYTHING FOREVER, constitutionally!”

        However, the seemingly unlimited power of the federal government emanates not from the U.S. Constitution, but from the SCOTUS decision in ‘Wickard v. Filburn’ [317 U.S. 111 (1942)] which ‘gave’ them the ‘authority’ to ‘regulate’ INTRAstate commerce, as well! 🙁

      • Johnnie, Wickard was not about intrastate commerce, it was about non-commerce having a purported effect on interstate commerce. By growing your own grain, it affects your need to buy grain on the open interstate market.

        It’s still a BS decision, one that should have resulted in the swift lynchings of all nine justices (not only did it defy the Constitution and all reason, it was unanimously decided).

        • “Wickard was not about intrastate commerce, it was about non-commerce having a purported effect on interstate commerce.”

          While what you say is true, as I noted ‘Wickard’ GAVE the FedGov (or is that they TOOK?) the power and authority to regulate INTRAstate commerce in addition to the INTERstate and international commerce regulatory authority contained in the Constitution.

          And the SCOTUS found that Filburn’s growing grain for his own personal use “affected” the “interstate” selling price of grain, as it “affected” the “loss” of his spending on grain.


          Of course, the “logic” behind the SCOTUS’s decision was “What if EVERYONE did that???”

          Even MORE BULL$HIT!!!

          • And the lesson we must take from this is: Elections matter.

            When we are too disgusted to vote for either the Democrat or the Republican candidate then we let everyone else decide. We make ourselves the nullity in the political game.

            The power to appoint Federal judges – and in particular appellate and SCOTUS judges – is so profound that we must not neglect to do whatever we can to avoid the GREATER of 2 Evils prevail.

            Neither McCain nor Romney would have nominated great judges to SCOTUS. Neither would have nominated even good judges. The one thing that was clear: Obama would nominate the very worst candidates possible. And, that’s precisely what he did. We are now stuck with Sotomayor and Kagan for the rest of their natural lives!

            A Presidential election is no time to “sit this one out”.

            I consider the office of President a special case where the LESSER of 2 Evils is the only viable choice.
            Conversely, I have come to the conclusion that we should use the tactic of voting for the GREATER of 2 Evils for Senators and Representatives. I.e., we should threaten the GOP with loss of control of a majority of seats in each chamber wherever they nominate a RINO. The best way to realize that threat is to promise to vote for the DEMOCRAT opponent when the GOP nominates a RINO.

            It should take only 2 or 3 biannual elections of executing this threat to persuade the GOP elite that they can’t have majority power without our support; and we will deny then enough seats to strip them of their power.

    • So ruled the SCOTUS in ‘Wickard v. Filburn’, 317 U.S. 111 (1942).

      See what Justice Clarence Thomas thinks about ‘Wickard’ and its predecessor, ‘Gibbons v. Ogden’ [22 U.S. 1 (1824)]; from his concurring opinion in ‘U.S. v. Lopez’, 514 U.S. 549 (1995):

      “From an early moment, the Court rejected the notion that Congress can regulate everything that affects interstate commerce. That the internal commerce of the States and the numerous state inspection, quarantine, and health laws had substantial effects on interstate commerce cannot be doubted. Nevertheless, they were not ‘surrendered to the general government’.”

      “Of course, the principal dissent is not the first to misconstrue Gibbons. For instance, the Court has stated that Gibbons ‘described the federal commerce power with a breadth never yet exceeded’. Wickard v. Filburn, 317 U.S. 111, 120 (1942).”

      Of course, if both ‘Gibbons’ and ‘Wickard’ were overturned the entire basis for the FedGov’s overwhelming power would collapse as being unconstitutional!

      We can only hope…..

  4. The muzzle brake makes the gun louder. And the gun requires a registered silencer to be purchased separately and attached in order to have a working sound muffling device on the gun. This ruling is illogical and outrageous. The ATF is only doing this as part of their campaign to stymie us at every opportunity and make firearms ownership and sales as difficult as possible, because they hate private firearms ownership, especially concerning arms they deem “unsporting”.

    • The “muzzle brake” here is identical to the core of a SIG suppressor. This is not some cosmetic detail; the baffle stack is the “workhorse” of the suppressor, and the hardest part to fabricate.

      Since the law says that suppressor parts are legally considered suppressors, IMO this is the correct legal decision. Whether or not the LAW itself is a good one is a different question/issue, but that’s not one judges are supposed to answer.

      Why does the BATFE care? Well with this “brake” in place, it would probably be pretty easy for someone to cover it with a tube, effectively creating a fairly high quality suppressor illegally. They don’t like that sort of thing, and in the past they have cracked down on others selling suppressor kits/components. IE, they haven’t been inconsistent here.

      IMO, since its so easy to create illegal suppressors anyway, they probably “shouldn’t” care about this. . .but again, that’s a different issue/problem.

  5. Honestly, it does look a lot like a suppressor baffles. I’m not sure how this would work as a muzzle brake, but if you could weld a metal tube around it, it would work great as a suppressor. They should still be allowed to sell it though. Even if it could be made into a suppressor, it’s not in it’s current form.
    There are multiple guides online on how to make suppressors out of a myriad of different household tools or items. Are they going to start restricting those items as well? They should allow SIG to keep the muzzle brake and if someone has the intention of converting it into a suppressor, they can apply for the tax stamp and all that like everyone else.

    • That’s because it IS suppressor baffles.

      But the registered part of a silencer is the tube, not the baffles, IIRC. This is just a silencer part, just like a flash hider or comp with a dedicated silencer mount is a silencer part, just like an endcap is a silencer part.

      • Haven’t the courts agreed with the ATF that suppressor ‘parts’ are suppressors?

        The bad news is that common washers can be used as suppressor baffles, so they are free to claim nearly anything to be a suppressor…

        • That’s exactly why it’s ridiculous.

          But this is the same ATF that says when you touch a pistol to your shoulder you’ve ‘re-designed’ it into a rifle.

    • “The firearm’s design – which includes proprietary threading – makes it impossible to “readily convert” the specified MPX into a suppressed weapon.” I don’t understand why the OP asserted that it was “impossible” to “readily convert” the artifact into a suppressed weapon. As Jeremiah comments, it looks like the owner could weld a shroud to complete the conversion into a silencer.
      Comparing this device to an oil filter is sort-of splitting hairs; but, unfortunately, that is in the nature of the problem. Once the law strikes some sort of classification (such as being “short barreled”) then somebody has to call the shot as to how to split the hairs (e.g., where in the chamber to start measuring the barrel length.) That somebody is going to wind-up being a judge.
      An oil filter is considerably less-like a silencer or something that could be readily converted into a silencer. This product is considerably more-like a silencer or something that could readily be converted. So, I can’t fault the judge for doing his job. It’s dirty work, but somebody has to do it.

      • “Once the law strikes some sort of classification (such as being ‘short barreled’) then somebody has to call the shot as to how to split the hairs (e.g., where in the chamber to start measuring the barrel length.) That somebody is going to wind-up being a judge.”

        No “hair splitting” or “judgment” involved in your example, as measuring a barrel’s length is, figuratively speaking, “set in stone.”

        As best I remember the actual ATF regulation, it states the measurement is to be made “down the inside of the barrel from the muzzle, through the empty chamber, to the closed breach with the hammer cocked.” This eliminates “short measuring” the length due to a firing pin being past the breach face due to the hammer being down.

        • I think you miss the real point in my simple illustration.

          So, somebody has to call the shot; and, logically, the really obvious problems will be recognized early. The ATF – dull as some of them might be – probably realized in 1935 that they had to have a fixed answer to the problem of where to start measuring.

          Gradually, more and more issues come up, more answers are dictated by regulators or judges. Yet, this process never stops. It keeps going on and on and on where innovators strive to find the holes in the scheme.

          The tragedy comes when government uses it’s heavy hand to inflict punitive damages on some poor schmuck for a malum prohibitum law (i.e., a prohibited action or contraband that is bad only because the law declared it to be bad.)

          Where in all of this ought we to search for the source of the problem? Does it lie with the judge? With the ATF? Or, in the legislative process where two things occur:
          1. – a pretty arbitrary distinction is declared – the distinction that makes the difference; and,
          2. – the punishment is punitive

          This is a really bad recipe.

          Look at the AOW provision of the NFA. So, imagine a relative inherited a lemon-squeezer and gave it to me. For the crime of not doing the paperwork and paying a $5 tax, we both could be sentenced to prison for 10 years. It’s probably not going to happen; but we are each forced to heir an attorney who will cost us a fortune to get a plea agreement that strips us of our constitutional right to KBA and be on probation for a year.

          Either Congress doesn’t really care; or, Congress actually likes this.

          What I see occurring on this thread is a waste of a lot of valuable anger and energy attacking the wrong culprit. I don’t blame the judge in this case. As much animosity as I have for the ATF, I don’t blame the ATF either. Congress created this law and lots of others like it. Read the book Three Felonies a Day.

          We the People must coalesce our efforts to get our fellow voters to put a stop to this craziness. Perhaps this is happening today with Trump’s campaign. I’m much less interested in whether Trump wins (and is elected) than I am in the effect he is having on coalescing conservative and libertarians to focus on some single activity (a presidential race) that might put a stop to progressive-ism.

      • “An oil filter is considerably less-like a silencer or something that could be readily converted into a silencer” I beg to differ with you on that one. Have a look at What cadizgunworks makes is a threaded serialized and ATF blessed adapter that allows you to mount an oil filter to your gun and use it as a suppressor. While ATF rules require that when the filter is worn out you send the whole unit back to Cadiz to be reman/refurbed, but let’s be serious the only part that is serialized is the adapter who is really going to send the whole thing back and pay $25 for a new oil filter. Thus by this ruling were I to purchase one of these pay for my tax stamp and then have it an a spare Fram filter for my car in my garage then I have suppressor parts and could be fined for that Fram Filter. Bottom line the law needs to be changed. A suppressor is not a suppressor until it suppresses the report of the weapon. There is and always has been the notion of the letter of the law vs the spirit of the law. If this is how the spirit is going to be interpreted then it’s time to rewrite the letter

  6. In the olden days (up to the 1980s) ATF only considered the tube to be a suppressor, since it was the serial numbered part (much like the receiver of a rifle). They later expanded their rule to include all parts of a suppressor, and any replacement parts. This was done to counter gun gun show sales of blank tubes at one table and internal parts at another. My guess is in the current case the judge was looking at intent, but misread it. He concluded that Sig knowingly intended to facilitate the making of unregistered suppressors, yet there is no proof of this. A much more plausible argument is that Sig intended the oversized brake to be used to facilitate the making of registered suppressors, which would have increased federal tax coffers. To expand on ATF’s argument, one would reasonably conclude that a threaded barrel facilitates the attachment of a suppressor, and thus should be banned. We could counter that it serves the dual function of allowing a flash hider or muzzle brake to be fitted to the firearm, and thus is not a fair comparison. But that defense is weakened by advertisements for “suppressor ready” firearms, and a possible ATF claim that no .22 LR benefits from the addition of brakes or flash hiders. I suspect an appeal is in order, lest we and our pharmacies all be judged latent illegal drug dealers because our prescriptions aren’t kept in lock boxes, safe from our spouses and children.

    • Bill has a point here.

      While the NFA is, for all intents, purposes, and enforcements, a gun ban, legally/fictionally it’s a tax law, and we should hold the feds to that.

  7. Good thing I used up all that ammonium nitrate turning my grass green before Obama was elected….otherwise the way his ATF operates, I could have been charged with constructive possession of a bomb.

    Here is how you know Obama isn’t a Muslim: Islam requires you face Mecca to pray, and Obama just faces any convenient mirror.

    • The ATF was a problem long before Obama took office, but hey, don’t let that get in the way of spewing whatever nonsensical thought comes into your mind.

      I know, I know… “But it’s worse now, because Obama!”

      Is it? Are you sure? Is it really worse? I’d like to remind you of the ruling that a shoestring makes a machine gun. Remember that one? That was in 2004, right in the middle of Dubya’s two terms.

      So is it really worse? Maybe it’s just the same old, same old. Bad, illogical, insensible rulings. Bad before, bad now, bad in the future.

      • Is it? Are you sure? Is it really worse?

        Uh…yeah…it’s a lot worse…almost “fundamentally transformed”

        Record levels of unemployment and under employment
        tens of millions of additional citizens electing to become welfare sponges
        millions of illegal aliens with pseudo-citizenship granted by decree
        an additional 20% of the economy controlled by a lazy and inept government
        an executive branch endorsing and funding the selling of baby parts
        the destabilizing of Iraq which invalidated the sacrifice of thousands of soldiers lives
        I could go on for 100 more lines

        Yeah…it’s worse

      • Really strange.

        Ammonium nitrate fertilizer isn’t regulated at all.

        Fuel oil isn’t regulated at all.

        ANFO is: Ammonium nitrate fertilizer + Fuel Oil (mix to taste).

        Now, all you need is a satisfactory detonator. Hmmmmmmm.

        In my (misspent?) youth, dynamite, blasting caps and fuse were lightly regulated. As a CHILD, and later as an ADOLESCENT I SOLD these products. No one much paid any attention to my activities in this regard. Neither my father nor the justice of the peace. Ready availability of these products never caused a problem as far as I can recall.

        Nobody thought dynamite was dangerous. Nor was ammonium-nitrate fertilizer; nor fuse dangerous. My dad taught me that blasting caps were dangerous. I was especially careful about caps. (Not hard to make mercury fulminate).

        None of this makes any sense – to me – at all. Only ignorance of reality explains it.

        Just as soon as people recognize that:
        – charcoal;
        – sulfur; and,
        – urine
        are all totally unregulated; and, these are the simple ingredients for black powder, then we will have an epiphany of reality.

        • Hah! Fat lot you know. Please oh please tell me where I can get ammonium nitrate? Up until Oklahoma City, Wal-Mart; $8 a bag. Now? Not available without lord knows how much paperwork.

          As I live in an area with highly acidic soil, it sucks to be unable to get proper fertilizer– the kind that RAISES pH; not the crappy sulphate stuff we’re saddled with now– that actually lowers the pH, necessitating even more lime…

          • Thanks for correcting me. Sorry, I am out of date. Ammonium nitrate was sold by the bag or truckload when I was young. I didn’t realize that they changed the law.

  8. Is it known if SIG’s “specially designed shroud”, when placed over the brake/silencer, actually suppresses sound?

  9. I remember the last time I used a brake silencer without ear pro…

    Maybe the judge should actually use the weapon in question to test his theory of how silencers and brakes work…

  10. If the ATF determined that Cali Ed doesn’t need a muzzle break to function effectively, then maybe the military should get rid of it then.

    No need for it.

    • Even with the recently massively expanded powers they claim, I had somehow missed the ATF being designated to decide what we “need”. What ATF needs, OTOH, is to be disbanded.

  11. We now enter “Phase II” of gun control.

    Phase 1 was obvious stuff; Mag Caps, Feature Regs, etc. Obviously this method hasn’t worked out as the opposition intended. Gun ownership is rising , CCW is nearly universal in some quarters, etcetera.

    So now we come to Phase II. No need to call Congress and draft a debate. Just order the ATF and the anti gun judiciary to rule against anything positive about firearms . Case law builds to the effect “Anytime one sues for gun rights , rule against them always”. Gradually the existing laws are interpreted so tightly everything becomes banned .

  12. If you wrapped this brake in sheet metal and a few hose clamps how effective would it be at suppressing?
    I don’t agree with the laws on suppressors. I think they are like mufflers on cars. If the theory is that quiet guns make it easier to commit crimes, then we should all have straight pipes on our cars and Toyota Prius is should be banned.

  13. This looks to me to be a form of constructive-possession argument. I am appalled that the legal system seems to be more and more tilting to what amounts to pre-crime rulings.

    • Constructive Possession

      The legal possession of an object, even if it was not in a person’s direct physical control. Often used in criminal law prosecutions for possession crimes, such as possession of illegal drugs. Generally, for a court to find that a person had constructive possession of an object, the person must have had knowledge of the object, and as well as the ability to control it. For example, someone with keys to a safe deposit box may have constructive possession to the contents of that box, and the owner of a car may have constructive possession of the contents of its trunk.


      That Ain’t Mine: Taking Possession of Your Constructive Possession Case
      by H. Lee Harrell
      Deputy Commonwealth’s Attorney
      Wythe County, Virginia
      E-mail: [email protected]

  14. Kudos to sig, they push the limits to show how stupid the laws on the books are (arm brace is illegal depending on how you hold it, but the way you hold it defines the object now, something that actually doesn’t dampen sound is a suppressor) and one day hopefully this will lead to the laws changing….

  15. The problem is not so much the judge as it is the law the judge has to work with. As an administrative agency, ATF is accorded wide discretion and receives substantial deference from the courts when acting in their area of expertise. In order for their decisions to hold up under the law they only have to surpass a very low bar, essentially that they did not act with near-total disregard for the law and the facts (ie they did not act in an “arbitrary or capricious manner” or in flagrant violation of the law). The judge here is only saying that ATF has met that very low standard. And frankly, it’s hard to disagree if indeed SIG’s counsel conceded that the thing was essentially just an “unwrapped” suppressor core. As a former administrative-law judge and professor of administrative law, I have long since reached the conclusion that, when private citizens find themselves in adjudicatory proceedings against an administrative agency, the most descriptive word is “farce”.

    • Okay, so there is one. Which is designed only to be long. Not to actually function as a muzzle brake. Also it is not purpose designed as a baffle stack.

      Though I gotta say I am SUPER interested in seeing if you could use it as one, haha. Unfortunately I am on a school budget and also not in a hurry to commit felonies, outrageous though they are.

  16. It was always my understanding that a to be classified as a suppressor, the device must reduce the sound emitted from the firearm, if even for one shot.

  17. This argument FAILed, precisely because if the erroneous premise of Sig’s statist argument: over inches, NOT fundamental unconstitutionality of ATF to illegally write NOT laws, but internal dept memo/regulations to apply to the citizenry.

    ATF is an unconstitutional entity, along with EVERY gun law in the Federal Register.

    Instead of wasting financial resources and man power dickering over design minutiae, Sig, NRA and the entire small arms industry should’ve went and lopped the head off of ATF along with EVERY gun law on the books, permanently, immediately follwing the Fast and Furious scandal.

    Did nothing. Like the Wall St. Too big tonjail bankster kunts, not a single GovtTerrorist asshole ended up jail, nor any policy changes nor bills limiting the Feds.


    It’s like WTF did Sig think was gonna happen, to argue before State employees ruling on behalf of one of its own agencies??

    F’ng Quisling lunacy.

  18. Don’t be ridiculous, this has nothing to do with sound reduction. ATF needs to review its own regulations. Suppressors must be serialized and registered. If this part has no serial number, it cannot possibly be a suppressor.

    I bet the only answer they could come up with for that argument would be “Don’t be ridiculous.” But that answer somehow never works for us.

  19. sooo the car linear comps that griffin did is longer than 3 inches sooo its a silencer by this judge’s ruling O.o

  20. The NFA ’34 was a foolish piece of legislation. As such, it invites ridicule. Accordingly, there is an argument for evaluating the NFA as a TACTICAL first target gun-control.

    For purposes of evaluating this argument, let’s assume that reforming the NFA is not an important functional objective. (It may well be important for certain reasons of principle or utility – I simply want to IGNORE these considerations.) We can make lots of really COMPELLING arguments about the illogic of many NFA provisions, such as the following. (Skim over them, there is nothing really critical to discover here.)

    The machine-gun classification seems inconsistent with the Miller opinion. The distinction between full-automatic and semi-automatic has closed somewhat by virtue of developments in semi-automatic designs plus bump-stocks and enhanced triggers. The Full vs. Semi has been rendered obsolete now that there is a well-established notion of burst-fire of 2 or 3 rounds.
    The distinction between a SBR vs. a pistol is totally irrational. You can have a stock if you don’t have a pistol. You can have a pistol if you don’t have a stock. But, if you have them both you have to pay a $200 tax and do the paperwork?
    The distinction between a SBS and a long-barreled shotgun is absurd. That 1/8″ (and a really bad attitude) cost Randy Weaver his wife.
    There is not a lot of definition surrounding an AOW.
    The DD that turns on rifling and calibre with shotguns exempt makes no sense.
    Taxing a DD that explodes at the rate of $200 but not taxing blasting explosives at all makes no sense.
    The Hughes Amendment makes no sense.

    Our beef is with CONGRESS, not the judiciary. SCOTUS is NOT going to provide any relief – except possibly via the Hughes Amendment. SCOTUS has decided that the power-to-tax is the power-to-destroy and if the Congress decides to tax something to its destruction then it is Constitutionally free to do so. E.g., Congress has taxed bank-notes issued by any bank other than the Federal Reserve; and, accordingly, there are no more bank-notes issued by private banks.
    The Poll Tax amendment suggests that we would have to pass an analogous Constitutional amendment that would prohibit Congress from levying any tax at so high a rate that it would have the effect of eliminating the commercial viability of an otherwise lawful product. I can’t see that happening.
    I could imagine a Constitutional amendment that would prohibit or limit a tax on guns or ammo. However, it would be a long slog to get that through the ratification process.
    I think that relief from gun-control is going to come only via getting the popular votes for Congress-critters who will be responsive to our complaints.

    Here is the tactical argument: Make a mental inventory of all our existing gun-control laws at the Federal level. NFA ’34; GCA ’68; FOPA; Hughes-Amendment. Let’s agree that we hate them all. Now, as a rhetorical strategy, which ones might lend themselves to criticism based on logical rationale?

    The gun-controls in the NFA of ’34 seem to offer interesting rhetorical opportunities. With the arguable exception of the Hughes-Amendment, the NFA doesn’t make any sort of weapon illegal per-se. Not at all! Why, as far as NFA ’34 is concerned, all these artifacts are perfectly lawful! They are simply taxed; and, there is a bit of paperwork associated with insuring that the tax is collected. (They also check for prohibited-person status.)
    We can – for the purpose of making progress in the reforming the NFA of 34 – prescind from objecting to the power of Congress to levy a tax. Instead, we can argue that it seems wholly inappropriate to levy such a high tax on an article that is a SAFETY device. The silencer tax is objectionable for the same reason that the ObamaCare medical devices tax is objectionable. It’s a matter of principle; we object to taxing some kinds-of-things such as water, food, medicine and safety.
    Likewise, for such things as SBS, SBR, AOW, we can (again) prescind from objecting to the power of Congress to levy a tax. Instead, what we ought to argue is that the PENALTIES for failing to pay the tax and do the paperwork are arbitrary, capricious and excessively punitive. Were the killings at Ruby Ridge or Waco really justified to collect $200 tax stamps? What if the NFA “weapons” at stake were AWOs? Would those killings be justified by the Treasury’s need to protect the revenue from $5 tax stamps?
    We might conceded that a firearms manufacturer evading payment of thousands of $200 stamps might deserve to be summarily shot – or at least locked-up for a long time. But it wasn’t really necessary to kill Mrs. Weaver over Randy’s failure to do the paperwork and pay $200 over 1/8″ of a shotgun barrel-length. These penalties really need to be substantially reduced because there is no real public-safety issue at stake for a non-manufacturer who makes one or a few NFA items for personal use not realizing that he has inadvertently crossed a design boundary that requires paying a tax and doing paperwork.

    Finally, taxing exploding DDs differently than blasting supplies makes no sense. Licensing handlers of explosives might be justifiable, but taxing different types of explosives is not intrinsically logical.

    If and when we get a much more receptive audience of members of Congress it might make sense to BEGIN with the NFA of ’34 for the RHETORICAL purpose of raising public skepticism over obviously illogical gun-controls. This sequence of attack might prove advantageous. After the public has skepticism for some gun-controls that make no sense to them they might be in the mood to become skeptical toward other gun-controls that TODAY strike them as logical.

    How will the Anti’s respond to a carefully chosen line of attack on the NFA? Will they respond that a cantankerous old hermit brought his wife’s death upon himself by falling for the ATF’s entrapment? That he knew or should-have-known that that 1/8″ would result in a severe penalty if he neglected to pay the tax? Will they say that David Koresh was culpable – exclusive of the DoJ – for the incineration of 79 people, including many children?

    How are the Anti’s going to explain why a SBR is subject to tax and penalties when neither the stock nor the firearm it is attached to are considered special by themselves?

    How will the Anti’s explain the justification for tax and penalties for a SBS?

    By carefully attacking carefully selected components of the NFA we will put the Antis into a difficult position. They must choose between:
    – remaining silent, raising NO objections to our reforms; or,
    – making fools of themselves in trying to defend these illogical distinctions and penalties.

    Why attack the NFA first – under the assumption that reforming this gun-control has very little utility for us? Why not attack some other gun-control that (we might agree) is a much greater thorn in our side?

    Let’s take, as an example, the NICS check. We criticize the NICS system for a number of reasons we understand well; but, remember, the PUBLIC does NOT understand our criticisms of NICS. To the public, NICS seems to be a benign, “common sense” and “reasonable” gun-control. How can we get the public to become skeptical of a gun-control that APPEARS to them to be perfectly tolerable? (Remember, as non-gun-buyers, they have no objections to the NICS law that only affects us gun-buyers.) Should we begin our “assault” on a much beloved NICS check law? Or, would attacking illogical NFA provisions make for better tactics?

    This purely TACTICAL analysis might be food for thought for all of us PotG who have divergent views. Clearly there are NFA aficionados who are galled by the Hughes Amendment; notwithstanding that very few PotG have the ammo budget to really enjoy a full-auto gun. Equally clearly, there are countless PotG who are really concerned about stopping UBC and – for that reason alone – want to attack NICS. If NFA is as great a tactical choice (as I’ve argued) then maybe we could coalesce our efforts on this target.

    • “The DD that turns on rifling and calibre with shotguns exempt makes no sense.”

      Guess you missed the “Lord Bentsen”/ATF ruling making the Cobray ‘SWD Striker-12 Streetsweeper’ 12 Ga. rotary magazine shotgun a “Destructive Device”:

      ATF Rul. 94-2

      • Thank you; I had forgotten about that one. I was concerned about the length of my comment with so many tedious examples.

        While your street-sweeper example illustrates the illegal construction and application of the NFA I don’t regard it as particularly useful for attacking the NFA. We need to consider the optics of each example. The street sweeper’s name and optics would be a terrible choice.

        Conversely, the SBR is a good choice. We can imagine a representative of the NRA (or some manufacturer, etc.) sitting at the mic in a committee room. To his left is an aid holding a stock. To his right is another aid holding a handgun. The witness takes each in turn in his hand and shows it to the assembled committeemen explaining that it’s perfectly lawful for him to possess each artifact. (Handgun needs to be registered to him in DC). Then, he explains that if he held both artifacts in his hands simultaneously that the ATF official in the room would be duty-bound to arrest him and handcuff him for lack of a $200 stamp.

        Likewise, a witness holds up a “lemon squeezer” and explains it fires a single shot; presumably a low power small calibre cartridge. He explains that if he were to hand it to his aid sitting at his side the ATF official would be obliged to arrest her for want of a $5 stamp. We queue up a committeeman to ask: “What did Y’all call that gadget again?” Witness responds “It’s called a lemon squeezer”. (Plants in audience queued up to laugh out loud.

        Choreography would be critical. We want to seduce the Anti’s to make foolish objections – where we can – but then laugh at them. We do NOT want to wheel in a 20 mm cannon – full auto – and explain why we want these particular items marketed to eager collectors.

        DDs are another area that is tricky. It’s perfectly true that anyone with money or machine-shop skills can buy or build a Howitzer. He just needs a stamp. He’s free to fire ball or canister shot to his heart’s content. However, let’s suppose he operates a sky-lift business and wants to fire exploding charges to control avalanche risk. That too is perfectly legal; provided he buys a $200 stamp for each exploding round. Would this be good optics? It’s an amusing case; it’s illogical; but it wouldn’t do us any good.

        I’d rather find some situation that’s borderline absurd. E.g., a legitimate commercial blasting application where – arguably – the charge is not merely an explosive. Rather, the charge would meet the definition of a DD subjected to a $200 tax and months of delay before the blaster could get on with the work at hand. Or, the possibility that a teenager buys a legal cherry bomb and puts it inside a metal tube. Thereupon, he becomes subject to the NFA.


      “That 1/8″ (and a really bad attitude) cost Randy Weaver his wife.”

      During that time there were rumors floating around that the ATF had shortened the barrels _after_ they got them from Weaver…that Weaver had actually cut them to the proper 18″ length.

      And since there is evidence that ATF’s Firearms Technology Branch had taken confiscated AR-15 rifles containing substituted M16 hammers, triggers, selectors and bolt carriers, but no auto sears, and some merely having M16 bolt carriers, then removing the AR-15’s disconnector, then loaded .223 ammunition with soft pistol primers to allow the rifle to “double” when the hammer “followed down” causing the firing pin to set off the primers with a “light strike;” and then filed on the owners for “Possession of Unregistered Machine Guns,” _anything_ out of those BATFùckups is believable!

      • Your allegations of “rumors” and “evidence” is quite disturbing. Can you provide a link to a story about the “evidence”?

        The “rumors” may be nothing more than just that – rumors. My difficulty with this allegation is that I don’t see any means whatsoever to disprove it couldn’t happen. Suppose, for example, one has a rifle or shotgun with a relatively short barrel. He takes it to a range where the ATF is waiting to arrest him (simply because they have targeted this guy for persecution.) They take him and the evidence away and saw-off the barrel to less than the permitted length. Unless the ATF guy who performed the saw-off testifies that he did the deed, the defendant would be toast.

        Likewise for the AR-15 scenario. To make an even more absurd scenario, the ATF could arrest the guy with his AR-15 and when out-of-sight of anyone, remove the receiver and attach it to an M-16 acquired elsewhere. Then haul the guy into court with the defendant, his AR-15 receiver, the 4473 form from his FFL, and the M-16 parts and he would be toast.

        Would the ATF pull some gun-owner’s name out of a hat and prosecute him? I don’t think so. On the other hand,
        Suppose some gun owner really stood out. Say, for example, they identify someone who had been at the Bundy Ranch. Maybe he happens also to be the owner of an SBR/SBS or a full-auto that he has lawfully registered and paid the tax. Therefore, acquaintances probably could be found who would corroborate the fact that witnessed the target in possession of A NFA item that APPEARS TO BE the trumped-up evidence of an unregistered NFA item.

        I don’t need my tin-hat to subscribe to such a conspiracy theory.

        One counter-argument I can think of is that any government could pull this stunt – planting or tampering-with evidence – under ANY law; drugs or failing to feed the parking meter work equally well. Is this counter-argument valid?

        I’m not convinced it’s valid. Most crimes don’t have really severe penalties. Why do this on a parking meter violation? Even drug possession wouldn’t usually bring a serious enough sentence to make it really worth while – – unless it is possession with intent to distribute. However, a defendant would have a sporting chance of producing enough character witnesses who would vouch for the fact that the target is well known to be an upstanding law abiding citizen who devotes his time to his profession and other lawful activities. There is no corroborating indication that he really is engaged in distributing.

        Is the NFA unique – or somewhat unusual – in serving as a perfect vehicle to entrap an innocent person? The contraband – an unregistered NFA item – may be a PERFECTLY LAWFUL artifact for a law-abiding person to possess – were it registered. A good target is someone who HAS registered an object that appears – on casual observation – to be one-in-the-same as the fabricated evidence. The penalty is very severe. The law violation is socially offensive (Gunzzzzzz).

        If the NFA is unique in this respect then we may have the makings of a good argument to present to Congress. Admittedly, we might not have any persuasive evidence that the ATF ever fabricated evidence. Nevertheless, it is too dangerous to have such severe penalties for what is not arguably a really serious threat to public safety. It is prudent to remove the temptation to which a government official MIGHT one day succumb.

        A Congress that has no sympathy for PotG will never reform the NFA based on a persuasive argument. HOWEVER, a Congress that does want to curry favor with PotG would do so: BUT ONLY IF we give them plausible excuses that they can give to explain their votes to hoplophobe constituents. This argument – which is merely conjectural – might serve that purpose.

  21. Does anyone actually have a plausible plan or threat to hurt anyone? No. Are there any actual victims? No. Therefore, constructive possession doesn’t actually mean jack sh!t. Even if the court or some activist judges rules otherwise.

    It’s rulings like these, Obamacare, giving permission to domestic spying, etc. that make me disgusted with our legal system.

    • And, for this reason, I argue that the main focus of our outrage and efforts ought to be focused on Congress. We, the voters, re-elect these Congressmen from our own respective Districts and States. Term after term, we send the same guys back to carry on as-before. While simultaneously holding the Legislative branch of our Federal government in deeper contempt than the Judicial or Executive.

      The fault, dear Brutus, lies not in our stars (the Presidents we elect and the judges they nominate) but in ourselves as voters.

  22. “Finally, it noted that muzzle brakes are designed to be no larger than two to three inches…”

    Someone needs to hand Judge Paul Barbadoro a tape measure and an Russian-manufactured AK-74 muzzle brake, as they are most assuredly longer than “three inches”….

    How about this U.S.A.-made Krinkov 4 Piece flash hider?
    Overall length with cap installed 3.25″

    And how about this one, judge?

    CRH Customs AK Muzzle Brake
    24mm Long, 3 Port – .30 Caliber
    Overall length is 3.5″

  23. Let’s try an experiment since some judges lack the ability to reason.

    Shoot the gun and record the decibels. Then shoot an AR just like it without the so called “silencer.” Are they significantly different in sound?? No?? Not a silencer. Not silencing anything.

    • It’s those words you used, “significantly different,” that shoots your point down, as ATF used an approximate 1dB reduction in muzzle sound to rule that the Colt “moderators” on the XM177E1 and E2 carbines as “silencers,” and, as such, the owners of these machine guns either had to add a serial number to the moderator and register the now-“NFA silencer”, along with paying the $200 registration tax…or abandon the moderator to the ATF. 🙁

      However, I never heard of a court decision backing up that ATF ruling.

      • This is why we shouldn’t have gun laws at all – because there will be groups that try to twist their meaning into whatever they see fit.

        It doesn’t matter that this muzzle brake looks like the core of a silencer or not – it isn’t a silencer – period.

  24. I just don’t see where anyone would see the construction and design of this device capturing gas or Lowering sound decibels and calling it a suppressor. Where is the suppression/silencer effects achieved in this device? I rest my case.
    Somebody needs to go back and take physics.

  25. “which the ATF determined did not need a muzzle brake to function effectively” So now the ATF gets to decide when when your gun does or doesn’t need a muzzle device… It’s ok though, we’ll draw the line at them ruling that we need a good reason to be able to own a gun at all, that will be the time to rise up and say no more, right?

  26. I am fine and dandy with the ruling, SIG had that coming unfortunately when they brought it out. But the wording and explanation is total BS! A muzzle brake is not needed on a pistol caliber carbine?! Since when has that ever made a damn, a muzzle brake isn’t really “needed” on many firearms but if I want to put one one them and am still legal what’s it matter??
    Basically saying that the “muzzle brake” isn’t going to be functional?! Well there are a crap ton of those already on the market, just cuz it works crappy is it now illegal??
    There is a certain length a muzzle brake is supposed to adhere to?! What is it any of the ATFs business if I want a muzzle brake 4 feet long, as long as it doesn’t drop the sound down 1 decibel they can kiss my…
    A court is supposed to be non bias and view the facts of case. The fact is the said muzzle brake in its self is in no violation of any laws. If the owner of said muzzle brake converted it into a sound suppression device without proper paperwork they would be committing a felony, the same as if they screwed an oil filter on thier barrel, or any other non registered sound suppression device. This is a BS ruling, I’m hoping SIGs lawyers bring thier A game for round 2. But how do you rule the ruling unjust??

  27. Why not just replace it with a “barrel shroud” like on those 10/22 sbx barrels. Then thread the crown area of the barrel and the end of it so you can slide baffles and a tube inside to have a suppressed gun.

  28. I wonder if the very similar design on the Tactical Solutions X-Ring SB-X Barrel will be a problem.
    I hope not as I bought one for my 10-22 Takedown due to the lighter weight and future can I could install in it if I ever decide to go that route.

  29. I welcome this ruling. Every single such ruling takes us one step closer to seeing the BATFE burn to the ground, and blow away on the wind. I will probably be buying a Sig in the near future to support their efforts.

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