Posted: 2/15/2003 1:20:01 PM EDT
| Alrighty, this has been confusing me here for the last few days. Specifically, the BATF's ruling that thumbhole stocks are now considered pistol grips. So my first question, let's say I have a MAK-90 with a thumbhole, didn't the '89 ban on importation make "pistol grips" on imported firearms illegal? (I'm not too clear on that law btw) And a "ruling" from the ATF, is that considered law or no? I thought only certain branches of govt. could inact a law. So does this stand until challenged in court? In short, "What the dilly yo?" |
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A law is a law. If you do something the law says is illegal, you are breaking the law. A ruling is made by the courts concerning a law. A ruling COULD be considered a law after that. BATF does not make rulings. A BATF "opinion" is their "concept" of what a law means, but not neccesarily "the law". These opinions usually deal with "gray areas" of the laws, and are often opined in the most restrictive matter, which, technically, is the safest route for such an entity to follow. BATF does not make law. They follow the wording on bills that have become law. If you have guns, it is best to LISTEN to (and follow) BATF opinions, especially where NFA stuff is involved. |
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ATF does not make the law, but ATF opinions are formal decisions from their lawyers and technical experts on what their interpretation of the law means. An ATF opinion equates to what the ATF will enforce, and what they will prosecute for. Violating an ATF rule will not mean that you will get convicted, but it does mean you can be arrested and prosecuted. The flip side is that you could be in COMPLIANCE with an ATF rule, and still get charged with an offense if a prosecutor felt that a stricter interpretation applied. Compliance with an ATF rule would be a very good defense in court, but it wouldn't necessarily be a bar to prosecution. This is not an ATF or even a federal thing; just about every LEA, from a 2-officer PD to the biggest agencies have policies that interpret the law and selectively enforce it (or choose not to enforce it). The difference is that ATF chooses to publish what their standards for arrest and prosecution are, and seeks to make it clear what THEY consider to be a violation of the law. While the result is often confusing and maddening, at least they are attempting to be fair. |
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I think the word "fair" is a good choice. Lets face it, they ARE doing their jobs. They dont seem to be doing it in an evil way and are telling us what the "strictest" sense of a law (as they perceive it) may be. It would be stupid of them to tell us anything different. |
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FNMI_Rifleman, The other folks answered your question about BATF rulings in general, and are correct. About your specific situation, the difference in the pistol grip determination has to do with the very different wording between the two sections of laws. The import provisions of the GCA68 were amended to ban military features, one of which was a pistol grip. It was specifically designed to ALLOW "sporting" guns, including target guns which often had thumbhole stocks. The "Assault Weapon Ban" banned guns with certain features, one being a "pistol grip that protruded below the action", but no mention was made of "sporting purposes" in that section of the law. This allowed the interpretation that, as far as the AW ban was concerned, a thumbhole IS a pistol grip. -Troy |
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All government agencies engage what is called in the public sector, "rule making." Everyone from the EPA to the FDA, to even the ATF do it. Agencies are under the direction of the Executive branch, but derive their authority from Congress, just like the President. Congress gives the agencies the power to enforce the laws that they (Congress) pass as they see fit. Laws are don't cover every situation and scenario, so it is up to the agencies to make "rules" regarding these situations. Since they are authorized to do so by Congress, these rules carry the weight of law. An agency can change its rules as it sees fit, and this often is influenced by who is appointed head of the agency, who is President, and other political climate factors. Third-party recourse against a rule believed to be unfair is either through the judicial system, or passing new legislation. |
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Quoted: Alrighty, this has been confusing me here for the last few days. Specifically, the BATF's ruling that thumbhole stocks are now considered pistol grips. So my first question, let's say I have a MAK-90 with a thumbhole, didn't the '89 ban on importation make "pistol grips" on imported firearms illegal? (I'm not too clear on that law btw) And a "ruling" from the ATF, is that considered law or no? I thought only certain branches of govt. could inact a law. So does this stand until challenged in court? In short, "What the dilly yo?" There is no 89 'law'. There is an 89 Executive Order to the ATF that imported guns meeting certain charictaristics be declared NON SPORTING, and thus banned from import/posession under the 68 GCA. The thing is, that by attaching a certain number of US-made parts, your gun is no-longer considered imported, and you can give it a pistol grip (provided that with the pistol grip attached, it would not violate the 94 law due to presence of a GL, flash hider, etc...). |
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Quoted: All government agencies engage what is called in the public sector, "rule making." Everyone from the EPA to the FDA, to even the ATF do it. Agencies are under the direction of the Executive branch, but derive their authority from Congress, just like the President. Congress gives the agencies the power to enforce the laws that they (Congress) pass as they see fit. Laws are don't cover every situation and scenario, so it is up to the agencies to make "rules" regarding these situations. Since they are authorized to do so by Congress, these rules carry the weight of law. An agency can change its rules as it sees fit, and this often is influenced by who is appointed head of the agency, who is President, and other political climate factors. Third-party recourse against a rule believed to be unfair is either through the judicial system, or passing new legislation. Got to disagree a little bit with you on this. If you replace the word "rules" with the term "general guidelines" I would agree a bit more. ATF cannot add to existing laws without a bill going through the legislative branch. These days, laws DO cover almost every situation. |
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Actually they are usually called regulations and are codified in the Code of Federal Regulations. When you see someone cite to 18 C.F.R. XXX, they refer to title 18 of the Code of Federal Regulations. The Black's Law Dictionary definition is: [blue][b]Regulations[/b] Rules orders, and the like, issued by various governmental departments to carry out the intent of the law. Agencies issue regulations to guide the activity of those regulated by the agency and their own employees and to ensure uniform application of the law. Regulations are not the work of the legislature and do not have the effect of law in theory. [i]In practice, however, because of the intricacies of the judicial review of administrative action, regulations can have an important effect in determining the outcome of cases involving regulatory activity.[/i] United States Government regulations appear first in the Federal Register, published five days a week, and are subsequently arranged by subject in the Code of Federal Regulations.[/blue] (Emphasis mine) They are not laws, but they do matter. Jeff Deane |
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Provided it was legally imported at the time, and had at least two "AW" features, yes. The thumbhole-stocked MAK-90's, for instance, which came in with a tack-welded muzzle nut over the barrel threads did not meet ATF standards for permanent attachment of a muzzle device under the 94 ban. As a result, those post-90 pre-94 MAKs should be grandfathered pre-ban "assault weapons". If you replaced enough foreign parts with US parts, you should legally be able to put a folding stock, removable flash suppressor or brake, bayonet lug, etc on them. It's not legal to change the configuration of an imported weapon, however, into a configuration which would not have been importable, unless you replace enough foreign parts with US-made replacements that it would no longer be considered "imported" under 922(r). |
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Code of Federal Regulations: § 1.1 Definitions. As used in this chapter, unless the context requires otherwise -- Administrative Committee means the Administrative Committee of the Federal Register established under section 1506 of title 44, United States Code; Agency means each authority, whether or not within or subject to review by another agency, of the United States, other than the Congress, the courts, the District of Columbia, the Commonwealth of Puerto Rico, and the territories and possessions of the United States; Document includes any Presidential proclamation or Executive order, and any rule, regulation, order, certificate, code of fair competition, license, notice, or similar instrument issued, prescribed, or promulgated by an agency; Document having general applicability and legal effect means any document issued under proper authority prescribing a penalty or course of conduct, conferring a right, privilege, authority, or immunity, or imposing an obligation, and relevant or applicable to the general public, members of a class, or persons in a locality, as distinguished from named individuals or organizations; and Filing means making a document available for public inspection at the Office of the Federal Register during official business hours. A document is filed only after it has been received, processed and assigned a publication date according to the schedule in part 17 of this chapter. Regulation and rule have the same meaning. CFR's ARE laws as defined by the United States Code. |
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Holy misconception Bat Man! You guys can keep a guy busy. FNMI_Rifleman "Specifically, the BATF's ruling that thumbhole stocks are now considered pistol grips." Never happened, if it did someone could point out a Ruling put out by the ATF that said that, but there is none. "So my first question, let's say I have a MAK-90 with a thumbhole, didn't the '89 ban on importation make "pistol grips" on imported firearms illegal?" No, in 1989 the ATF become more strict on what firearms would be approved on a Form 6 for importation. "And a "ruling" from the ATF, is that considered law or no?" Yes. "I thought only certain branches of govt. could inact a law." That is correct, but an agency like the ATF can write regulations and rulings that clarify the law. DevilsAdvocate "BATF does not make rulings." Yes they do, ATF Ruling 82-8 comes to mind as an example. Natez "An ATF opinion equates to what the ATF will enforce, and what they will prosecute for." Sometimes. Troy "The other folks answered your question about BATF rulings in general, and are correct." Hardly. "The import provisions of the GCA68 were amended to ban military features, one of which was a pistol grip." Huh, got a copy of the amended GCA of 68 with this new verbiage? Well now, you don't do you. "This allowed the interpretation that, as far as the AW ban was concerned, a thumbhole IS a pistol grip." So far the courts can not even agree that a pistol grip is a pistol grip, so you are stretching it a bit here. 155mm Very good, pat on the back. Go king of battle! Dave_A "There is an 89 Executive Order to the ATF that imported guns meeting certain charictaristics be declared NON SPORTING, and thus banned from import/posession under the 68 GCA." Urban myth, this executive order is, I call it executive order 10-10-321. The possession clause you just added is new though, very creative. DevilsAdvocate "If you replace the word "rules" with the term "general guidelines" I would agree a bit more." Ah, how about ATF ruling 85-2? You can also add the word regulation to your list. "ATF cannot add to existing laws without a bill going through the legislative branch." But they can clarify. Miranthis Job well done, my compliments. Oslow "So if I have a rifle that was imported with a thumbhole stock, it is now a pistol grip assault rifle. Cool. I guess I can change out anything I want now." Not so fast there, ya need two features. Circuits As usual, you are correct sir. USNJoe_Retired Bingo |