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Thread: 2A: Take Action Notice - Comment Period on ATF Brace "Guidance" Document

  1. #41
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    Quote Originally Posted by joshs View Post
    Not really. The 90 day provision, 18 U.S.C.A. § 926(b), applies to "rules and regulations" and this was just a nonbinding guidance document, so it's unlikely a court would have held ATF to the 90 day requirement.
    Is there anything stopping them from taking a case to court to get actual case law before issuing new regulations, or would that be the smarter play for them (even if it is a gamble)?

    I know so little about the law this very well may be a no stupid questions but there are stupid people post.
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  2. #42
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    Quote Originally Posted by Caballoflaco View Post
    Is there anything stopping them from taking a case to court to get actual case law before issuing new regulations, or would that be the smarter play for them (even if it is a gamble)?

    I know so little about the law this very well may be a no stupid questions but there are stupid people post.
    If they do anything on this in the future it will almost certainly be a Notice of Proposed Rulemaking, with a full 90 day comment period.

  3. #43
    Site Supporter JRV's Avatar
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    Quote Originally Posted by Caballoflaco View Post
    Is there anything stopping them from taking a case to court to get actual case law before issuing new regulations, or would that be the smarter play for them (even if it is a gamble)?

    I know so little about the law this very well may be a no stupid questions but there are stupid people post.
    Courts are constitutionally barred from issuing advisory opinions. Only actual cases are allowed. So, why wouldn’t the ATF be able to, proactively, use prosecutions to get a basis of “case law” to guide their regulatory actions?

    First, the ATF could never rely on a proposed or hypothetical rule in the first instance. They would necessarily need to issue the regulation through the proper administrative action (typically notice and comment rulemaking) before they could rely on it. Otherwise, the issue would never get to the substance—ATF would lose for trying to enforce a regulation that didn’t follow APA procedures.

    So the ATF has to issue the rules first. You can’t charge a person with a crime based on deviation from regulatory guidance unknown to the public. That’s due process and the APA playing nice together. EVEN THEN, “case law” is hard to come by.

    First, the ATF or other LE would have to arrest someone for an unregistered SBR. The “SBRness” of the pistol or “other firearm” would depend on the criteria listed in the guidance plus any case-specific facts about how that particular gun was being used in the presence of LE and/or testifying witnesses.

    Say the case lands in the District Court of Judge Eomer in the State of Rohan. It’s probably going to a magistrate for preliminary motions, where early dispositive motions will be decided without a true written opinion. Say it goes to trial, and a jury convicts/acquits based on expert testimony about the factors and their consideration of all the other facts in the case. Or, same result, but it’s a bench trial. Judge Eomer is so keen on this issue that he even writes and publishes a written opinion about the findings of fact and conclusions he reached.

    Is Judge Eomer necessarily bound to rule consistently in a case with similar, or even substantially the same, facts? No. Is a jury obligated to parrot a prior, similar verdict? No. Is Judge Faramir in the District Court for the State of Gondor? No. Most “case law” ever cited is simply “persuasive” authority—a suggestion of how to rule.

    If the specific ruling goes up on appeal to, say, the Court of Appeals of the Westlands, now we are getting somewhere. Depending on the specific issue presented to the court, they may issue a ruling on the applied rule (binding only in the parties or in a very specific, identical situation) or a ruling on the facial rule (interpreting the rule as it could be applied to anyone).

    That holding would ONLY be binding on the District Courts in the Westlands (Rohan, Gondor, etc.). No one else in Middle Earth could rely on it. Even the Court of Appeals might modify its own ruling, point out some nuance, or reverse itself.

    Now, another appeal from there, and you might get a writ of certiorari granted to the Supreme Court of Middle Earth. They might issue an applied, narrowly-tailored rule, or they might issue a facial, global rule—again, it depends on the exact issue(s) on appeal.

    The ONLY way to get “binding” and reliable case law in an issue is through a Supreme Court ruling on a facial challenge to a rule. I hope you now see how entirely unlikely that is to ever happen. Granted Supreme Court writs are rare, and they’re even more rare when you have (a) a good plaintiff with good facts and (b) an issue presented that cannot be resolved by anything narrower than a facial challenge.

    That’s also why you should never, ever rely on a legal analysis in a gun blog or a YouTuber. “Oh, the ATF lost XYZ issue in court!” is usually code for “this person has no clue how civil procedure, administrative law, or appellate procedure work.”
    Last edited by JRV; 12-23-2020 at 09:34 PM.
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  4. #44
    The R in F.A.R.T RevolverRob's Avatar
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    I'm glad to see them pull back on this one. When I last saw, there were some 46-48k comments on this piece. And apparently 90 or so members of Congress had issued comments or letters to both ATF and DOJ against this.

    I'm afraid this was merely a "test". But hopefully the ATF and individuals who would use that organization to oppress see that folks are a little more "fighty" than they thought.

    One can only hope.

    This is merely the beginning.

    Don't forget to make your 2021 checks out to Second Amendment Foundation, Firearms Policy Coalition, NRA Institute for Legal Action, and your state/local Rifle Association. Things are going to heat up.

  5. #45
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    Comment submitted.

  6. #46
    Member TGS's Avatar
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    Quote Originally Posted by RevolverRob View Post
    I'm glad to see them pull back on this one.
    Don't get too happy, they're just biden their time.
    "Are you ready? Okay. Let's roll."- Last words of Todd Beamer

  7. #47
    The R in F.A.R.T RevolverRob's Avatar
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    Bump this up. This thread is NOT for discussion of what you think about the ATF. Merely to note that you should provide a reasoned, simple argument, against the regulations in this latest round of Brace 'Guidance' from the ATF:

    NRA ILA - https://www.nraila.org/articles/2021...new-rulemaking

    Here is a link to the latest document: https://www.atf.gov/file/154871/download

    Newest Section on Federal Register: https://www.federalregister.gov/docu...ilizing-braces

    Please note the button at the top of the Federal Register Link "Submit a Formal Comment"

    Please note - ANONYMOUS COMMENTS DO NOT COUNT.

    Please provide a well reasoned and signed comment. I will provide the text of what I submit later this evening. I'm still formulating my comment(s). Primarily, they will focus on the ambiguity introduced with the worksheet ATF 4999.

  8. #48
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    Thanks, RR. I’ll read with interest as I formulate my own comment.

    Looks like there are just under 11,000 comments submitted already. I’d like to see it in the hundreds of thousands by the end of the comment period.

  9. #49
    [QUOTE=RevolverRob;1157650]Now available and comments can be submitted digitally:

    https://beta.regulations.gov/documen...2020-0001-0001

    ___

    Does anyone have suggestions for a universal/semi-universal comment to submit?

    I'm thinking something like this:[/]
    Never mind I see you have already addressed it.
    I'll wager you a PF dollar™ 😎
    The lunatics are running the asylum

  10. #50
    The R in F.A.R.T RevolverRob's Avatar
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    I'm personally going to focus my comments on three areas:

    "Folding adapters to lengthen pull" component of 4999.

    And the "iron sights/no iron sights/folding iron sights" component.

    Length of pull requirements -

    First, failure to define what is and is not a "folding adapter" does not allow the end user to know what counts. Is the hinge on a brace designed to lengthen the "length of pull" as they argue a folding adapter does? Given that there are "LOP" requirements, why does a folding adapter get to count twice? If a folding adapter does not lengthen the pull beyond the points requirements is it still a lengthening device?

    E.g., LAW folder adapter is also not designed to lengthen the LOP, no folding "adapter" that could be envisioned is designed for that purpose. It is designed to make the overall weapon more compact for transportation.

    -

    The sight rule appears to be entirely capricious overall. This rule penalizes an owner for equipping the firearm with iron sights. Sights that - definitionally, are meant to be used with a single eye, and work equally well regardless of distance held from the user.

    -

    Length of pull. The ATF has continually changed the requirements for measuring the overall length and "length of pull" for braces and brace equipped firearms. At present those with folding braces are measured with the brace folded. Now the ATF is changing the rules, to penalize folding and argues that folding adapters are length of pull "lengtheners". Yet if we evaluate tech branch rulings folding adapters are "length of pull" shorteners. Which is it?

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