Thursday, April 19, 2007

How not to have your life ruined by the ATFU, Part 3

In part one of this continuing series, I wrote about the ATF, and dealing with Sort Barreled rifles and Shotguns (SBR, SBS), and Any Other Weapons (AOW).

In part two, I addressed the issue of 922R compliance; and dealt specifically with modifcation of the SKS.

So, last night I wrote about the T/C Encore, and Contender lawsuit; wherein Thompson Center successfully sued the ATF over attempting to classify the Contender, which could be assembled as both a pistol and a rifle; as an illegal short barreled rifle.

T/C won their suit, which specifically allowed that because of the modular nature of the weapon; ONLY assembling the weapon in a specifically violating configuration (for example an 8.5" barrel and a shoulder stock) could to be considered illegal possession or manufacture of a Short Barreled Rifle (or shotgun).

This ruling also applies to the Encore, and by extension to any other modular weapon. In the case of the Encore specifically all Encore buttstocks and pistol grips, and all Encore barrels can be fitted to any Encore receiver, so long as you don't put a shoulder stock and a short barrel on simultaneously.

But wait? Doesn't the gun have to have been marked as a pistol on the 4473?

No, no it does not; providing one does not transfer the weapon as a rifle to circumvent a restriction on transferring a handgun (for example if the purchaser is under 21 years old).

You see people saying that all over the net, and even in gun stores, but it is wrong thanks to T/C and the supreme court; and further the district court in TN, and other rulings around the country.

Honestly, the "advice" you get online and in gun shops about gun laws, and dealing with the ATF overall, is generally pretty bad. Most folks, who probably really should, don't keep up, or pay attention to the details.

I don't necessarily blame them, because things get... confusing...

Ok folks, strap in because this one get's long and bumpy.

Prior to the T/C ruling, the ATF used a policy called by some "the rule of contagion" (and under some circumstances they still do); where, if a rifle was ever ever assembled on the receiver, and then a barrel shorter than 16" were ever attached to that same receiver, by contagion, the receiver was forever a rifle; and therefore the weapon in the new configuration would be an unregistered short barreled rifle, whether it had a shoulder stock attached or not.

A lot of people also seem to believe that with ANY weapon, the rule of contagion applies; and if the weapon is ever assembled into a rifle, it is forever a rifle, or if assembled as a pistol it is forever a pistol etc... This is an extension of the way the ATF treats machine guns; where if a weapon is EVER assembled into a machine gun, all of it's parts are forever machine gun parts.

Again, thanks to T/C, the rule of contagion does not apply; so long as one does not assemble a configuration illegal in and of itself.

If this were not true for example, the Mech-Tech carbine conversion unit (and other similar products) would be illegal, because you would be making a rifle out of a pistol according to the 4473. Then, by rule of contagion, when you converted back, you would be making a rifle into a short barreled rifle.

There are some exceptions however; and this protection does not necessarily apply to all guns in all configurations.

Only those weapons specifically intended to be modular in nature are 100% protected here; and "assault weapons" and "foreign weapons" subject to 922r have been interpreted as being held to a slightly different standard.

For example AR pistols still require "virgin" receivers; because by ATF ruling, each reassembly of the weapon in a different configuration is equivalent to a new assembly.

This is an arbitrary decision on their part; that has only been applied to the AR, to "assault" weapons, and to those weapons subject to 922r regulations; and is not likely to survive court challenge.

Based on this administrative ruling; to be in compliance, the AR receiver need not have been sold as a specific pistol receiver, or marked as a pistol receiver specifically (though people all over the net will falsely tell you otherwise); however you cannot take a receiver that was built and assembled in a "rifle" configuration, and re-assemble it in a "pistol" configuration.

This is what is meant as a "virgin reciever".

Even with this stricter interpretations for ARs however, the T/C ruling has implications. At one point the ATF would have attempted to prosecute you for "constructive posession", if you merely posessed the parts necessary to assemble the weapon into a non-compliant configuration.

Now, because of the T/C ruling, and because in most cases the rule of contagion is not valid, "constructive possession" is no longer an issue; except as specifically relates to machine guns (and even then, if it hits a court, it will most likely be tossed out).

Remember, these administrative procedures are not law; there is no legislatural, or jurisprudential support for them. These interpretations are frequently arbitrary, ambiguous, and inconsistent; and generally speaking such interpretations don't hold up.

It get's more complicated...

Since the end of the assault weapons ban; because there is no longer a legal federal definition for an assault weapon; the ATF cannot make any rulings based on a weapons status as an "assault weapon".

And MORE complicated...

Even if the weapon would have been an "assault weapon", or subject to 922r; if the weapon was originally built as a pistol, you can make it into a rifle, and then back into a pistol without a problem; so long as the weapon was not ever assembled into a configuration that specifically violates NFA; and so long as the weapon is not permanently altered except for an assemblage of parts (which means if the parts bolt or are pinned or slip fit in place. Welded, permanently pinned, or hydraulic pressed in place are probably non-nos)

You can for example, take an HK93 originally manufactured with a short barrel and no buttstock (legally a pistol), and add a long barrel and buttstock to it; then switch back whenever you feel like, without having created an illegal SBR; because the rule of contagion does not apply so long as there is no permanent modification.

As an illustration of this difference, you can take a Krinkov parts kit, and wed it to any new AK reciever that will fit it, thus assembling a legal AK pistol (under current interpretation since the AWB no longer applies), so long as the receiver has never been assembled into a rifle. You cannot however take an existing AK rifle reciever, strip it down (which requires grinding off rivets, and pressing parts out) and convert it to Krinkov configuration.

The only specific limitation to this is in regards to the AR; because there have been specific rulings regarding the AR configurations in question. However, because of the status of all other weapons of a modular nature (where assembly into another configuration requires no permanent modification), the AR rulings are pretty clearly invalidated; and in the few cases where it has been tested the courts agree.

And even MORE complicated...

This administrative ruling is subject to limitation for example, because of a Tennessee case from several years ago regarding AOW configurations.

ATF administrative procedure at one time stated that if a pistol ever had a foregrip attached to it, it was instantly and forever an illegal AOW (Any Other Weapon).

Also, the ATF had ruled that if a weapon was otherwise considered a compliant pistol, but was over a certain weight limit (which changed several times), it was also an AOW (this is why Olympic Arms early AR pistols looked like swiss cheese). This ruling was later revised to only subject pistols that had a magazine outside of their pistol grip to such weight limitations.

By a ruling in the Tenessee district court, this interpretation was found to be arbitrary, capricious, and ambguous; and therefore was invalid.

Under current guidance, if a weapon was originally manufactured in an AOW configuration (for example, a pistol with a vertical fore grip), then that weapon is an AOW; however if the weapon was manufactured as a pistol or rifle, and REMOVABLE (modular) ACCESSORIES were added (for example, a vertical foregrip on an accessory rail), then the weapon was not an illegal AOW.

Additionally, the arbitrary weight limitation, and magazine configuration criteria were completely disallowed.

So, let's sum up... and get even more confused:

Basically, so long as you are not "manufacturing" a new weapon by permanently altering it's configuration; you are not manufacturing an illegal SBR or SBS by attaching a short barrel to a receiver that has at one time been assembled into a rifle, so long as the weapon is not assembled with a shoulder stock.

If a weapon is specifically modular in nature, you cannot be held to have "manufactured" the weapon by simply assembling into a configuration that does not otherwise violate NFA, no matter what the status of the receiver is, or was
  • ...unless the ATF administrative procedure (not a law, an interpretation of internal rules) which applies to the AR specifically, and to 922r weapons, is in force.
  • ...except that administrative interpretation is possibly invalid, or may only apply in specific configuration.
  • ...unless the weapon is an AOW or machine gun.
  • ...except in those cases limited by the AOW ruling.
Ok are you confused NOW?

Good, because it IS confusing.

Any time this issue has gone to court, the ATF has lost; however the ATF doesn't have to go to court to screw you up, so be careful.

At this point, there are specific weapons which are explicitly protected from any such interpretations as being non-compliant, which would include the T/C Contender and Encore.

Additionally, any weapon that is modular in nature, and was not subject to either "assault weapons" regulations, or 922r (meaning "foreign weapons" "without a sporting purpose"), would be specifically protected under the Thompson Center ruling.

Any weapon that must be "permanently modified"(which is generally interpreted to mean welding, riveting, staking, cutting, grinding, or using a hydraulic press; but does not generally mean pinning, slip fitting, bolting, clamping, or non permanent screw on attachment) to be assembled in an otherwise compliant configuration, would be subject to these administrative rulings, and would not be compliant. Therefore you cannot cut down an existing rifle into a configuration with a short barrel and a pistol grip for example.

You CAN however take any receiver that has not yet been "assembled into a final configuration" (a "virgin reciever"), and attach a short barrel and pistol grip to it; even if that receiver is marked and sold as a rifle, and even if the weapon would otherwise have been subject to the various administrative rulings covered here.

Any weapon that is "modular" in nature, and would at one time have been subject to the "assault weapons ban", any weapon subject to 922r regulations, and the AR platform specifically, are in a "grey area"; where virgin receivers are strongly recommended.

This recommendation however only applies if the weapon were "originally assembled into it's final confguration" as a rifle however. If the weapon was originally assembled as a pistol, you can add a buttstock and long barrel to it (and convert back), any time you want.

Again any time this has gone to court, the ATFs ruling has been discounted, in whole or in part; but there may be issues; and the ATF can still screw your life up without ever going to court.


All of this only applies federally; you'r state may have specific limitations and regulations. I know for example that Califronia, Illinois, New Jersey, and New York at least have restrictions as to configuration that may come into play ; and it wouldn't surprise me if there were other states that did as well.

The bottom line:

To stay safe, if you have an AR, a 922r weapon, or what would once have been classified as an "assault weapon" and you want to assemble it in a pistol configuration; stick with a virgin receiver, or a pistol specific receiver (or one you can prove was assembled first as a pistol), and don't put a permanently mounted foregrip on it.

With the Encore and Contender specifically, you can feel safe doing whatever you want so long as you don't assemble a short barrel with a shoulder stock; and this should apply to all other modular guns not referred to in the paragraph above.