Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Director B. Todd Jones today announced that he is resigning.
Jones was nominated by President Barack Obama for the position of ATF director on Jan. 24, 2013. On July 31, 2013, Jones became the first ATF director in history to receive Senate confirmation. Prior to becoming ATF’s permanent Director, Jones served as the acting ATF Director starting Aug. 31, 2011. While serving as the acting director of ATF, Jones was also the U. S. Attorney for the District of Minnesota, a post he held from Aug. 7, 2009, until his confirmation as ATF Director.
ATF Deputy Director Thomas E. Brandon will serve as Acting Director after Jones departs. Brandon was appointed Deputy Director of ATF in October 2011. Brandon has more than 26 years of experience with ATF. Prior to his appointment as Deputy Director, Brandon served as the special agent in charge of the Phoenix field division beginning in March 2011, and special agent in charge of the Detroit field division from January 2008 until his assignment to Phoenix.
The holidays are just around the corner. As hunters, shooters, collectors or just plain plinkers, it’s a natural instinct to want to share our enjoyment of firearms with others. What better way to do that than to make a gift of a firearm to a family member, close friend or relative?
The first thing to remember if you’re thinking about giving someone a gun is that . . . it’s a gun! You already know that ownership of a firearm brings with it some serious legal and ethical obligations that other consumer products don’t. So let’s look at some questions you may have about giving a firearm as a gift.
The first question you have to ask is whether the intended recipient can legally own the firearm where he or she lives. More than 20,000 different gun laws on the books, even the kinds of firearms that law-abiding citizens can own vary from place to place; for example, juveniles (under age 18) generally speaking are precluded by law from possessing a handgun. Check out the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) website for an overview of local laws and, whatever you do, don’t forget that you can never under any circumstances transfer a firearm to someone you know — or have reasonable cause to believe — legally can’t own one. That’s a federal felony, so be careful.
There’s no federal law that prohibits a gift of a firearm to a relative or friend that lives in your home state. Abramski v. United States, a recent Supreme Court decision involving a “straw purchase” of a firearm did not change the law regarding firearms as gifts. Some states—California, Connecticut, Colorado and New York for example—require you to transfer the gun through a local firearms dealer so an instant background check will be performed to make sure the recipient is not legally prohibited from owning the gun.
The ATF recommends that if you want to give someone a new firearm, rather than going to a gun store, buying it on your own and giving it to, say your father, consider instead purchasing a gift certificate from that retailer and giving it to Dad as his present. That way he’ll get the exact gun he wants, and there’s no question about who is “the actual buyer of the firearm,” which is a question any purchaser must certify on the Federal Form 4473 at the time of purchase.
You can only ship a handgun by common carrier (but not U.S. Mail) and a long gun by U.S. Mail or common carrier to a federally licensed dealer, but not to a non-licensed individual. With all carriers, federal law requires you to declare that your package contains an unloaded firearm. To be safe, always consult your carrier in advance about its regulations for shipping firearms.
What if you want to give “Old Betsy,” your favorite old deer rifle, to your son or daughter as a college graduation gift? Again, in most states, there’s no law that says you can’t, but some states require even inter-family transfers to go through a licensed dealer. Remember, you can never transfer a firearm directly to another person who is a resident of a different state. In that case, you must transfer the firearm through a licensed dealer in the state where the person receiving the gift resides. Using a gift certificate from a firearms retailer near where the recipient lives might be a good solution. Pre-1898 antique firearms are generally exempt from the dealer requirement. Be safe and check with your dealer or local law enforcement before you hand over your prized possession.
It’s often an emotional moment when a treasured family heirloom is passed down to the next generation. These moments are part of what our cherished enjoyment of firearms is all about and represent that unique bond that sportsmen have with their fellow enthusiasts.
Once the fodder of Hollywood spy movies and pulp fiction novels, the NFA-compliant suppressor is becoming ever more common in its use and adoption with numbers at an all-time high.
No matter whether you call it a silencer, a suppressor, or just a can, the mechanism defined by the National Firearms Act of 1934 as any device for silencing, muffling, or diminishing the report of a portable firearm, is shedding decades of misinformation and rapidly becoming more and more mainstream. According to figures released by the Bureau of Alcohol, Tobacco, Firearms and Explosives earlier this year, there were, as of March 2014, no less than 571,750 legal suppressors listed in the National Firearms Registration and Transfer Record (NFRTR).
As benchmark in the increase in the number of yearly transfers done on NFA items, such as suppressors, in 1984 the ATF collected just $666,000 in transfer and making taxes on these items. Three decades later, with no increase in the tax rate, the ATF collected almost $18.2 million in transfers, according to its 2013 figures, an increase of over 2,700 percent.
“Suppressors are in much the same position as ARs were ten years ago,” Knox Williams, president and executive director of the non-profit American Suppressor Association, told Guns.com.
“When the Assault Weapons Ban sunset in 2004, there were a lot of popular misconceptions surrounding ‘black rifles.’ A large segment of the pro-gun community thought that all ARs were machine guns, and that they had no place amongst hunters,” said Williams. “Now, ten years later, the tables have turned. The AR is perhaps the most prolific symbol of the gun community, synonymous with the basic right to keep and bear arms. This is not because the rifles themselves have changed, but because over time people have become educated about the true merits and characteristics of the semi-automatic platform.”
Patented in 1909, suppressors have never been illegal under federal law, but since 1934 are required to be registered with Washington. However, states have the authority to pass local laws governing otherwise legal ownership and use of NFA-compliant devices.
As such, suppressors are legal in 39 states. The five states with the highest number of devices are Texas, (86,579), Georgia (43,958), Florida (39,613), Ohio (26,566) and Indiana (22,223) and account for about 40 percent of the total.
Barring the 11 states that do not allow individuals, corporations, and trusts to own suppressors, the five states with the lowest numbers of ownership are population-low but sportsmen-rich West Virginia (3,357), Alaska (2,919), North Dakota (2,834), Wyoming (2,040) and Maine (1,728).
This increase in ownership has seen the production of suppressors mushroom as well in an attempt by the industry to keep up. The ATF listed some 3,020 manufacturers with Special Occupation Tax FFLs needed to produce Title II weapons, such as suppressors, across the nation in 2013, with at least one in every state. When compared to the U.S. population, that is approximately one manufacturer per 100,000 residents. While many traditional firearms companies such as Winchester, Smith and Wesson and Colt have legacies that stretch back to the 19th Century, today’s household names in the supperssor market, makers such asAWC, Remington-owned AAC, and SilencerCo, have all sprouted up in the past three decades.
A big point in the increase in popularity of these devices comes from a removal of the stigma associated with their use.
“Similarly, to most Americans, suppressors are shrouded in mystery,” Williams said. “It is not the devices themselves that baffle people, but rather a general misunderstanding of the unknown. Because most people have never seen or shot with a suppressor, they generally assume that they are actually silent. Because many people have not purchased a suppressor, they generally assume that they are illegal, or require a permit.”
The National Shooting Sports Foundation, the trade group for the firearms industry, has long held that legal suppressors can help prevent hearing loss, help make shooting ranges better neighbors, make great tools for hunting, and do not increase crime in states that allow their possession.
In recent years, pro-suppressor legislation has gained traction nationwide. So far in 2014, bothLouisiana and Georgia have seen lawmakers responding to increased pressure from sportsmen and hobbyists to expand protections and use for suppressors. This came while Alabama saw regulatory changes that paved the way for hunters to use their suppressors for the first time in generations.
In addition to this, a number of states are streamlining the Chief Law Enforcement Officer signature requirement on suppressor transfers to individuals by requiring these law enforcement officers to process applications through a new breed of “shall sign” or “shall certify” legislation. This year alone, lawmakers in Utah, Kentucky, Kansas andArizona passed legislation that mandates CLEOs to approve paperwork within a limited period of time, unless the applicant is found to be a prohibited person, such as a felon, mental defective, minor or domestic abuser. This removes the possibility for law enforcement chiefs to approve or deny suppressor applications for arbitrary reasons.
Lawmakers, in fact, approved so much of shall-sign legislation that when Oklahoma Gov. Mary Fallin vetoed such a bill in May, the state legislature overrode it within just 10 days.
Besides industry groups such as ASA and NSSF, gun-rights organizations such as the National Rifle Association have vowed to move forward with a new emphasis on NFA regulation.
“Over time, as the market continues to expand, and as grassroots efforts continue to have success, more and more people will become wise to the fact that there is no such thing as an item that completely silences a firearm, and that in 39 states suppressors are legal to own and possess,” Williams said.
“Will they become the next symbol of the Second Amendment? Only time will tell,” Williams said. “They have already cemented their role within the ever-changing firearms community.”
At the request of industry types, the Bureau of Alcohol, Tobacco, Firearm and Explosives revised ATF Form 1 and Form 5, with the biggest change allowing the use of credit and debit cards to pay the making tax when filing a Form 1, the agency announced in a regulations update.
Both Form 1 and Form 5 pertain to National Firearm Act items — machine guns, suppressors, short barreled rifles or shotguns, and other destructive devices. Form 1 is the application to make or register an item, and Form 5 is an application for a tax exempt transfer and registration of an item.
Payment by check or money order is still accepted for applications submitted on paper. Both have also been re-worded to streamline the process.
According to the update, the forms have been revised to incorporate the questions relating to non-immigrant status on ATF Form 5330.20, Certification of Compliance with 18 U.S.C. 922(g)(5)(B), which clarifies an applicant’s citizenship.
“Form 5330.20 is to be submitted when the applicant maker is an individual, not a legal entity. With a submission of the revised Form 1, the submission of Form 5330.20 will not be required. This revision was also requested by the industry,” the update reads.
Forms in the eForms system have not been updated yet, nor has the ATF given a specific date for the change.
Also, the ATF also reminds patrons, “Since the eForm 1 may only be filed by legal entities or government agencies and the eForm 5 is for transfer by a qualified Federal firearms licensee when the transferee is a government agency, the answering of the questions is not required as they are for an individual applicant maker or transferee.”
This is hopefully an indication that the ATF is continuing to make it easier for people to make and register NFA-regulated firearms, which are becoming more and more popular every day.
Steve Says: Many thanks to Spencer, a law student, for contributing this well researched guest post. This is a legal post, not a political post.
Monday, the Supreme Court of the United States decided the case Abramski v. United Statesagainst Abramski in a 5–4 decision split along party lines. Bruce Abramski had purchased a blue-label Glock using his old police credentials to acquire the gun at a discount on behalf of his uncle, who lived in another state. After acquiring the gun, Abramski properly transferred the gun to his uncle at an FFL in his uncle’s home state.
In deciding against Petitioner Abramski, the Court held that when Abramski answered yes to Question 11.a on the 4473 (the actual buyer question), he made a false statement with respect to a fact material to the lawfulness of the disposition, which violated 18 U.S.C. § 922(a)(6). The Court also held that his misrepresentation concerned information required to be kept by the GCA, which violated 18 U.S.C. § 924(a)(1)(A).
The Court held that all the provisions relating to acquisition of firearms from dealers that refer to “person” or “transferee” actually refer to the person “always meant to get the firearm” and not the person at the counter (Abramski, pp 13–14). Therefore, the information of who is to ultimately get the firearm is material to the transaction, and Abramski’s misrepresentation therefore violated 18 U.S.C. § 922(a)(6) (Abramski, p 19). The Court glossed over the dissent’s recognition that “no provision of the Act prohibits one person who is eligible to receive and possess firearms (e.g. Abramski) from buying a gun for another person who is eligible to receive and possess firearms (e.g. Abramski’s uncle), even at the other’s request and with the other’s money” (Abramski,Scalia, J., dissenting, p 2).
Abramski also argued that his false statement was not material because his uncle was not a prohibited person. But under the new interpretation that the statute actually refers to the person always meant to get the firearm, the Court held that Abramski’s argument fails because the sale would not have complied with § 922(c) absentee purchase restrictions, and so his false statement was still material (Abramski, pp 19–20). Notably, the Court stated that the ATF’s previous view that identity of the true buyer is material only if the true buyer is prohibited is irrelevant because criminal laws are for courts to construe (Abramski, p 21). The ATF’s opinion simply doesn’t matter.
Finally, because the regulations (27 C.F.R. 478) require dealers to keep their form 4473s, any information in the 4473 is information “required by [Chapter 44]” to be kept, and therefore misrepresentations on a 4473 violate 18 U.S.C. § 924(a)(1)(A). Again, the Court brushes aside the dissent’s point that neither Chapter 44 nor the regulations actually require keeping any information as to “true buyers” (Abramski, Scalia, J., dissenting, pp 13–14).
The Court has implicitly granted the ATF enormous power when it comes to what it can require of dealers and transferees. The ATF can include any information in the 4473 and magically, the information is now required to be kept such that misrepresentations violate 18 U.S.C. § 924(a)(1)(A). I seriously doubt that even this liberal majority would allow the ATF to include a question such as “What is your favorite color?” since it is wholly irrelevant, but the ATF certainly could include other questions or change the actual buyer exceptions.
What is interesting about the decision, however, is that it expressly disavows any deference to ATF’s interpretations of criminal statutes (although it conveniently upholds ATF’s current, court-favored interpretation). Slip op. at 21. The Court emphatically declined to give any deference to ATF’s interpretation of the statutes precisely because it is a criminal statute, codified in Title 18 of the U.S. Code (reserved for criminal statutes). While the Court’s apparent reason for disavowing any reliance on ATF’s interpretation was ostensibly to discredit Abramski’s argument that, at one point, ATF actually took exactly the same petition Abramski was proposing, it may well have opened quite a large door for firearms proponents. For example, the terms “firearm,” “silencer,” and “machine gun” are all defined in 18 U.S.C. § 921, part of the Criminal Code. Did the Court just invalidate all of ATF’s interpretations regarding what constitutes a firearm, silencer, or machine gun for purposes of criminal prosecutions?
This is not merely academic, as anyone who has had the misfortune of engaging a government agency in a legal battle knows that the courts typically defer to the agency on questions of interpretation of definitions and statutes. Now, however, a powerful argument can be made under Abramski that ATF’s determinations are to be given no deference at all, as many of the firearms regulations come under the Criminal Code (the rest come under the Tax Code). By way of example, ATF’s determination that Sig’s MPX-C muzzle brake is actually a silencer should no longer be given any deference, as the definition of “silencer” falls under the Criminal Code.
The Court’s analysis of materiality also raises some perplexing questions. The 4473 actual buyer requirement is not created anywhere in statute or regulation. The requirement and explanation is entirely a creature of the 4473. The 4473 asks question 11.a and provides instructions defining “Actual Buyer.”
Notice that question 11.a explains that you are not an actual buyer if you are someone who is acquiring a firearm on behalf of another, and that it prohibits transfers to people who are not actual buyers. At the same time, in the instructions the ATF has created several exceptions to the actual buyer requirement (again, nowhere to be found in statute or regulation). How do these exceptions (or loopholes if you will), not contravene the purpose of § 922(a)(6)? Prohibited persons could easily make use of these exceptions in straw purchase scenarios.
Also interesting is that an agent acting on behalf of a corporation should fill out Section A of the 4473 with his own information. Section A includes question 11.a, the actual buyer question.
Under the ATF’s definition, this officer acting on behalf of the corporation is not the actual buyer. Should the officer answer “no” to question 11.a? If so, the transfer is prohibited as explained by the actual buyer question and instructions. But if the officer answers “yes” to question 11.a, the officer is committing a violation of § 922(a)(6) since the officer is not the actual buyer. There is no exception in the 4473 for agents who are not actual buyers that buy on behalf of entities.
Could a dealer still transfer someone who answers “no” to question 11.a? Only the 4473 prohibits the transaction, there is no actual statute or regulation prohibiting such a transfer as the dissent in Abramski noted. However, under the majority’s view, § 922(c) seems to catch this scenario. But § 922(c) only applies to sales to persons not present, that is, it only contemplates two parties involved in the transaction, not three. Again, a corporate buyer will not be present, so should all corporate purchases proceed under § 922(c)? And what about someone who is not purchasing the firearm from the FFL (such as someone who bought from another dealer online, but only transfers at the receiving dealer).
Gun maker SIG Sauer filed suit against the Bureau of Alcohol, Tobacco, Firearms and Explosives last week challenging what it considers an inaccurate ruling on its product.
SIG claims that the ATF classified the muzzle brake designed for the SIG MPX as a silencer even though it will not “silence, muffle or diminish” the sound of a gunshot, according to court documents.
“The device is designed and intended to reduce the felt recoil of the firearm by directing the propellant gases perpendicular to the axis of the bore,” SIG argues.
The company introduced the MPX in January 2013 at the Shooting Hunting Outdoor Trade show along with a line of silencers and silencer-ready firearms, meaning they’re equipped with threaded barrels. But the MPX was a bit more advanced.
Unlike SIG’s other new products for 2013, the MPX is equipped with a 9 1/2 inch muzzle brake welded onto a 6 1/2-inch barrel, putting the overall length at 16 inches, which is compliant with ATF regulations dictated by the Gun Control Act. However, the muzzle brake can double as the internal components for a silencer. The only variable missing from turning the muzzle brake into an integral silencer is a cover. And that latter detail is the basis for the ATF’s classification.
(This video shows how SIG Sauer marketed the SIG MPX and its muzzle brake at SHOT 2013. The rep describes the silencer around 1:50.)
“The submitted item is designed and constructed as a silencer component commonly referred to as a ‘monolithic baffle stack,’” Earl Griffin, chief of the Firearms Technology Branch for the ATF, wrote SIG in August 2013. “A monolithic baffle stack is a silencer core that replaces traditional individual baffle and spacer parts with a solid unit that may contain a series of baffles, spacers, ports, or expansion chambers. Welding it to a barrel does not change its design characteristics or function.”
Griffin continued, “Based on the findings reviewed above, the FTB examination has determined that the submitted sample is a part intended only for use in the assembly or fabrication of a silencer and, therefore, is a silencer … Hence, it is subject to regulation under both GCA and (National Firearms Act) provisions.”
A few months later in December, SIG appealed the FTB’s conclusion with a series of internal tests.
For the first test, SIG measured the decibel level of a SIG rifle, in compliance with ATF regulation, with the muzzle brake attached. SIG determined that the muzzle actually amplifies, rather than diminishes, the report of the firearm.
The second test measured the recoil and determined that the muzzle brake did in fact reduce muzzle rise and felt recoil, much like SIG suggested.
The third test explored the law and provided numerous examples from other companies that SIG claims are similar concepts to its muzzle brake, but they have ATF approval.
Griffin responded in February and reiterated the ATF’s earlier points. “We appreciate your further inquiry, but find no reason to amend our earlier findings.”
SIG’s attorneys argue that classifying the muzzle brake as a silencer will cause the company to suffer “economic injury” because the device cannot be marketed as a silencer because of the aforementioned details.
Additionally, the classification adds burdensome bureaucratic hurdles and fees for ownership and in turn drive potential customers aways because, as the document iterates, the device is not a silencer.
While filming last season’s studio segments for “Guns & Gear” TV, SIG SAUER brought several of their new guns to the studio as highlights of their 2014 products. One caught the eye of everyone -including production crew members who normally had no interest. It was, even to a “gun person” a strange-looking thing.
SIG’s MPX carbine. After having their muzzlebrake ruled a suppressor, SIG has filed a lawsuit against the BATFE, charging “burdensome legal requirements.” Jim Shepherd photo with Guns & Gear permission.
The “thing” was SIG’s new MPX carbine. OK, a 9mm carbine isn’t all that big a deal, but this one had a major difference: a muzzlebrake that was actually longer (9.5 inches) than the barrel itself (6.5 inches). Actually, the two weren’t separable. And, being welded in place, they gave the compact carbine an overall barrel length of sixteen inches. Without the integral muzzlebrake, the short barrel itself would classify the gun as an SBR – a Short Barreled Rifle in ATF terminology. It would then be subject to all the legal constraints and registration requirements of fully-automatic guns and suppressors.
In August, the BATFE responded-negatively- to the muzzlebrake. The ATF’s contention was that the brake actually wasn’t a brake, classifying it instead as an interior part of suppressors known as a “monolithic baffle stack”. The official denial said “welding it to a barrel does not change its design characteristics or function” and because of that, they were classifying the MPX as a Class 3 weapon.
In September SIG disagreed, and asked the ATF to reconsider.
The company stuck by its contention that the MPX’s integral muzzlebrake did nothing to reduce the sound signature. As evidence, SIG submitted sound meter tests that demonstrated that the brake in fact increased the sound levels.
If you’ve fired a rifle with a muzzlebreak, you know what they’re saying.
That same submitted testing demonstrated that the MPX’s unique muzzlebreak did, however, significantly reduce both recoil and muzzle climb-its sole intended purpose.
In February, the ATF responded, telling SIG it was sticking with its original finding.
In response, SIG filed a civil suit against the ATF, claiming the ATF’s incorrect ruling was causing the company significant economic injury.
“There is no market for a non-silencing silencer” SIG claims, while there is a “significant market for a muzzlebrake that decreases muzzle rise and recoil.”
The ATF’s classification of the MPX’s integral brake a silencer, despite the fact it doesn’t “silence, muffle, or diminish the report of a firearm” simply attaches “burdensome requirements set forth above as if it really is a silencer,” Sig says in the suit.
If this is beginning to sound somewhat familiar, it’s because we have reported on another ATF ruling recently (http://www.shootingwire.com/features/228649) that was overturned by a Federal Circuit Court. In that case, the ATF classified a muzzle brake from Innovator Enterprises a suppressor. The company countered with a lawsuit saying, essentially, that the ATF went purely on cosmetic appearance rather than demonstrable performance characteristics.
On appeal, the ruling was overturned.
But U. S. District Judge John Bates disagreed, saying the ATF clearly “jumped the gun” and overturned their finding. Bates then went on to castigate the ATF for its slipshod methods, citing as examples a lack of clearly enumerated standards and their subsequently selecting “dubious standards” that served only to fit the decision they wanted to give.
In fact, Bates wrote, the finding letter “contains hardly any reasoning, and makes no reference to prior agency regulations or interpretations that support its conclusion.” Instead, Judge Bates called the ATF letter a brief and informal document and “a non-binding statement of the agency’s position on whether the Stabilizer Brake is a silencer.”
Bate’s ruling went on to remind the ATF that having “a tail, grey skin and four legs” didn’t make an animal an “elephant” or a child’s bicycle a motorcycle because it had “three characteristics of motorcycles: two rubber tires, handlebars and a leather seat.”
He didn’t stop there. He went on to point out that a Bud Light is not a Single-Malt Scotch because it is “frequently served in a glass container, contains alcohol and is served in a tavern” any more than a hockey puck is a “rubber bullet” because it has “rounded sides, is made of vulcanized rubber, and is capable of causing injury when launched at high speeds.”
“Learning that one object has three characteristics in common with some category,” he wrote, “may not be very helpful in determining whether the object in question belongs in that category.”
With this latest example of companies pushing back against ATF rulings, it would seem that several possibilities are emerging.
The first, and most frequently offered by industry executives, is that the ATF is making a significant push to make firearms more difficult to manufacture and sell.
A complimentary observation, however, may be that the industry, seeing the BATFE continually found lacking in its methods of investigation and self-policing, sees an opportunity to push back against what have historically been decisions that were difficult to question, much less reverse.
As the industry lawsuits challenging the agency’s methods mount and Congressional pressure again ramping up over disastrous ATF operations like Operations Wide Receiver and Fast & Furious, mounting evidence of capricious rulings and slapdash operations may be adding credence to claims in Congress that the BATFE has become an “out-of-control – and unnecessary agency.”
Bureau of Alcohol, Tobacco, Firearms and Explosives
TEST, EXAMINATION AND CLASSIFICATION OF 7N6 5.45X39 AMMUNITION
On March 5, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) received a request from the U.S. Customs and Border Protection agency (CBP) to conduct a test, examination and classification of Russian-made 7N6 5.45×39 ammunition for purposes of determining whether it is considered “armor piercing ammunition” as defined by the Gun Control Act (GCA), as amended. Since 1986, the GCA has prohibited the importation of armor piercing ammunition unless it is destined for government use or testing. The imported ammunition about which CBP was inquiring was not destined for either excepted purpose.
The Gun Control Act of 1968 (GCA), as amended, defines the term “armor piercing ammunition” as:
“(i) a projectile or projectile core which may be used in a handgun and which is constructed entirely (excluding the presence of traces of other substances) from one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium copper, or depleted uranium; or
(ii) a full jacketed projectile larger than .22 caliber designed and intended for use in a handgun and whose jacket has a weight of more than 25 percent of the total weight of the projectile.” (emphasis added)
When ATF tested the 7N6 samples provided by CBP, they were found to contain a steel core. ATF’s analysis also concluded that the ammunition could be used in a commercially available handgun, the Fabryka Bronie Radom, Model Onyks 89S, 5.45×39 caliber semi-automatic pistol, which was approved for importation into the United States in November 2011. Accordingly, the ammunition is “armor piercing” under the section 921(a)(17)(B)(i) and is therefore not importable. ATF’s determination applies only to the Russian-made 7N6 ammunition analyzed, not to all 5.45×39 ammunition. Ammunition of that caliber using projectiles without a steel core would have to be independently examined to determine their importability.
“[The] ATF’s decision to classify the Stabilizer Brake as a ‘firearm silencer’ is ‘arbitrary and capricious’ for at least two reasons: the agency failed to ‘articulate a satisfactory explanation’ for its decision and the agency failed to ‘examine the relevant data’ before coming to a final conclusion. For these reasons, the agency action was ‘arbitrary and capricious,’ and must be set aside under the APA,” according to the United States District Court for the District of Columbia ruling against the ATF’s classification of the Innovator Enterprises Inc.
The Court found that the ATF did not provide an explanation for why it classified the Innovator Stabilizer Brake as a silencer and further slapped the company for not even bothering to check and see if the brake even decreased noise in the first place.
Backing up, what is the Stabilizer Brake? It’s a pretty complicated device, with two internal ported manifolds that redirect gas perpendicular to the bore encapsulated by two outer shells that direct the blast forward. At the end of the brake is a device that adds turbulence to the forward-expanding gasses, which we presume reduces increased felt recoil as a result of dumping the pressurized gas forward.
The idea here is to redirect, not reduce, overall noise. The Stabilizer Brake pushes the noise and blast of the internal brake components forward of the shooter.
It is similar to the Ferfrans Concussion Reduction Device, but more complex.
The ATF ruled that the brake’s components were analogous to a ported inner tube, an expansion chamber and an end cap, “Which are characteristics of known firearm silencers.”
The ruling flatly states that the decision to classify the Stabilizer Brake “are solely upon the physical characteristics of the device under examination” and that “Although the FTB (Firearms Technology Branch) utilizes state-of-the-art sound metering equipment, these tests do not affect the classification of any item.”
In affect, a silencer is what the ATF says a silencer is, even if it doesn’t make a gun quieter.
Judge John Bates found otherwise.
A major part of this decision is based on the Administrative Procedure Act, which requires that courts overturn discretionary findings or rulings by government agencies if they are not backed up with standards, investigation or procedure.
While the ATF has the responsibility to define a silencer, the “because we say so” approach to the decision, the court was required to throw out the ATF’s classification.
On top of that, the Court found that the ATF’s admission that they have the equipment to test silencers but choose not to to be the final nail in the coffin. The ATF ruling was “‘arbitrary and capricious.”
The ruling, however, goes much deeper than that.
The judge went out of his way to find every flaw in the ATFs methods and went so far as to question whether or not the ATF even has the ability to define what a silencer is.
Bates criticized the ATF for relying solely on physical characteristics, because like in this case, they can be used to classify a device as a silencer even if it had no capacity to muffle a firearm.
“A bullhorn might redirect noise away from a speaker’s mouth, but nobody would say it was for ‘diminishing’ the sound produced by the speaker — just the opposite.”
He also criticized the ATF for not checking the device for any muffling capacity, saying, “imagine a device designed for the sole purpose of muffling all sound emitted by a gunshot, and that was 100 percent effective at doing so — in other words, the world’s greatest silencer. If this device relied on a novel or innovative design that did not contain many ‘physical characteristics’ that are ‘characteristics of known firearm silencers’ … the agency would apparently not classify it as a silencer — despite the fact that it eliminates all noise produced by a gunshot.
“… Even if this general approach of relying ‘solely’ on physical characteristics were sound, the agency did not perform a scientific or rigorous comparison of physical characteristics. Instead, it consulted a list of six characteristics that are allegedly common to ‘known silencers,’ and then, if the submitted device has some (unstated) number of those characteristics (here, three out of six was enough), it is a ‘firearm silencer.’ But where did that list of six characteristics come from? The agency never explains whether those six characteristics are present in all (or most?) silencers. The agency never explains whether there are other common characteristics that do not appear on its list. And the agency never explains how many characteristics in common are necessary to be classified as a ‘firearm silencer.’
“… The agency’s approach leaves Innovator (as well as other regulated parties, and reviewing courts) guessing.”
The ATF’s position was that the Court simply did not have the ability to review its decisions in this case, known as the “administrative defense,” which holds that Congress gave the ATF the right and responsibility to enforce the law, and its decisions are final; its policies are de-facto legal and that courts are required to enforce its law.
Bates dismissed the ATF’s defense citing Chevron, which holds that “First, always, is the question whether Congress has spoken directly to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court as well as the agency must give effect to the unambiguously expressed intent of Congress.”
“If the Court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction of the statute … Rather, if the statute is silent or ambiguous with respect to the specific question, the issue for the court is whether the agency’s answer is based on a permissible construction of the statute.”
This is called the two-step test.
In Innovator Enterprises v. the ATF, Bates challenged the very notion that the ATF is enforcing any Congressional mandate at all.
“Indeed, it is difficult to determine what exactly Congress was concerned about in deciding to regulate silencers at the federal level,” referring to the 2007 study “Criminal Use of Firearm Silencers” which cites “The 1934 congressional debates [over what became the National Firearms Act] provide no explanation about why silencers were licensed.”
Because Congress was so vague in regulating silencers under the NFA and failed to outline what a silencer was for, the ATF can’t claim that they’re just doing what Congress told them to. This, combined with the fact that the ATF doesn’t have a test for what makes a silencer, just a list of parts that are common to silencer construction, is why the ATF failed the two-step test.
Ultimately this ruling doesn’t challenge the notion that the ATF has the lawful mandate to regulate silencers. Neither does it say that the Stabilizer Brake isn’t a silencer. It simply states that if the ATF can’t prove that this device is a silencer, then the ATF can’t classify it as one.
The Stabilizer Brake is what Innovator Enterprises says it is.