Pin & Weld No Longer Viable?

Ry points out that ATF does not seem to have the pin & weld method in their April 2009 handbook, meaning hundreds of thousands, possibly millions of gun owners out there could have just become instant felons!  ATF has considered pinned and welded extensions to a barrel to be part of the barrel for purposes of determining length under the National Firearms Act.  This Bushmaster, for instance, would be a Short Barreled Rifle under this new rule, and would fall under NFA requirements.  Current owners would have to register them with ATF as SBRs, or face prosecution.

Typically, something like this is not as simple as ATF making a change to its handbook.  You have a few different federal laws that govern the changing of rules.  Namely the Federal Register Act of 1935 and the Administrative Procedure Act of 1946, along with a few others.  A quick search of the Federal Register doesn’t show any rule change about pinning and welding barrels, but the Code of Federal Regulations also contain nothing the stipulates flash hiders, brakes, or other items pinned and welded to the end of a barrel count toward barrel length.

This means that the pin and weld technique was an “agency determination” rather than a rule or regulation.  ATF is infamous for preferring to exercise it’s regulatory power this way rather than use rule making, which is a more controlled and predictable process.  Regulated persons or entities can challenge an agency determiniation, in which case the courts will review under the standard that the decision was “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.”  There’s no set standard for what is arbitrary or capricious, but typically it would mean that ATF’s determiniation has no basis in law.  ATF does not have a good track record with its determiniations.  See Vollmer v. Higgins, which was an NFA case:

It is true that the National Firearms Act covers machineguns, as well as short-barrelled rifles and shotguns, even if they have been modified, so long as they can be “readily restored.” 26 U.S.C. Sec. 5845(b), (c), & (d).5 Neither the Act nor the Bureau’s regulations, however, define “readily restored.” See 26 U.S.C. Sec. 5845; 27 C.F.R. Sec. 179.11. We do know that, in the Bureau’s view, “firearms” subject to the Act may be excluded from coverage if they are “[a]lter[ed] by removing the feature or features that cause[d] the weapon to be classified as an NFA firearm.” FIREARMS ENFORCEMENT PROGRAM, ATF Order 3310.4B p 83(e)(2), at 43 (Feb. 8, 1989). Alterations of this sort include welding an extension onto a rifle or shotgun barrel; and welding closed a slot on certain handguns to prevent the attachment of a shoulder stock. Id. p 83(f)(2) & (4), at 43. The Bureau must believe that if welding removes a critical feature, the firearm cannot be “readily restored” and it therefore can be removed from the firearm classification. In the case of the modified HK receiver, the critical features were the lack of the attachment block and the presence of a hole. Vollmer’s welding the attachment block back onto the magazine and filling the hole it had drilled do not appear to be significantly different from the operations the Bureau describes as sufficient to remove a short-barrelled rifle or shotgun from the category of “firearm.” It would seem to follow that Vollmer’s operations thus removed the HK receiver from the category of machinegun.

So I think we would have room to challenge ATF’s determiniation in court.  For people who already own these firearms, the legal hazard was always there, because you’re possessing a firearm in a legal grey area in regards to barrel length.  Determinations don’t really mean crap if an ambitious AUSA wants to try to stick it to you.  But if I were to put money on it, ATF’s determiniation won’t hold up in court, especially if they try to argue that a millions of gun owners suddenly being made criminals isn’t really a problem, considering they are still allowing for extension by other methods that are really no better than pin and weld.

Do the anti-gun folks still want to come argue that the gun industry is unregulated, and guns are less regulated than teddy bears?