At the behest of President Joe Biden, the unelected bureaucrats at the Bureau of Alcohol, Tobacco, Firearms, and Explosives plan to finalize a rule that will turn the up to 40 million estimated Americans who legally obtained pistol brace-equipped firearms into federal felons.
The rule seeks to reclassify firearms with pistol braces as short-barrel rifles (SBR), which require extra registration with the government and a tax stamp that normally totals $200 under the National Firearms Act (NFA). The ATF signaled it may waive the fee, which it does not technically have the authority to do since the Treasury collects the tax.
To avoid 10 years in jail and a potential $10,000 fine, gun owners must reclassify their legally obtained weapons as short barrel rifles through a months-long, red tape-plagued, and expensive process or destroy the pistol brace. Once the ATF publishes its final rule in the federal register, gun owners will have 120 days to bring their firearms into compliance. Yet the ATF warns that Americans with pistol braces are likely already “violating the [National Firearms Act] by possessing an unregistered rifle with a barrel of less than 16 inches.”
Those who refuse to register their non-compliant firearms as NFA items and pay the $200 tax stamp that accompanies them will be required to surrender their pistol brace-equipped guns to the ATF. Firearms owners in the 21 states with SBR bans will also be forced to relinquish or destroy their pistol brace-equipped firearms to avoid penalty and punishment.
When Biden personally requested the rule in 2021, “hundreds of thousands” of members of the public expressed opposition to it. Every 117th Senate Republican, except Rob Portman and Susan Collins, also urged the ATF to abandon the rule that would “turn millions of law-abiding Americans into criminals overnight, and would constitute the largest executive branch-imposed gun registration and confiscation scheme in American history.”
“The proposed rule is worse than merely abdicating your responsibility to protect Americans from criminals; you’re threatening to turn law-abiding Americans into criminals by imposing the largest executive branch-initiated gun registration and confiscation program in American history,” the senators wrote.
Despite strong public opposition and the threat of legal and congressional involvement, the ATF didn’t budge.
ATF Director Steven Dettelbach claimed last week that the rule “prevents people from circumventing the laws Congress passed almost a century ago.” Yet he and Attorney General Merrick Garland shamelessly admit that it is the executive branch, not Congress, that is redefining “rifle” beyond what is constituted in statute.
“Almost a century ago, Congress determined that short-barreled rifles must be subject to heightened requirements,” Garland said in a statement. “Today’s rule makes clear that firearm manufacturers, dealers, and individuals cannot evade these important public safety protections simply by adding accessories to pistols that transform them into short-barreled rifles.”
The ATF determined a decade ago in 2012 that pistol braces do not “alter the classification of a pistol or other firearm.” The agency based its approval on the fact that “this device is not designed or intended to fire a weapon from the shoulder.” The ATF reconfirmed in 2017 that the brace, barring modifications and misuse, still doesn’t qualify as a “heavily regulated” SBR.
That approval was monumental for AR pistol owners who coveted the comforts a brace provides without subjecting them to the SBR regulation an AR with a stock and a less than 16-inch barrel would have.
Garland, however, justifies the ATF’s new rule with claims that “certain so-called stabilizing braces are designed to just attach to pistols, essentially converting them into short-barreled rifles to be fired from the shoulder.”
That distinction may not seem like a big deal, but it constitutes what Second Amendment attorney Stephen Halbrook calls “legislative rulemaking” by the ATF.
“Essentially, ATF has tried to redefine and expand on the definition of rifle which has criminal implications and that’s a no-no,” Halbrook said in an interview on Monday. “…There would be nothing wrong with ATF telling the public what it considers when it tries to decide or analyze whether an item is a pistol or rifle. There’s nothing wrong with that. But when they try to make this binding, in other words, they try to add to the regulation, basically, it’s called legislative rulemaking. And then they say ‘we’re going to prosecute people who are acting not in accord with this regulation,’ that’s where it goes beyond the pale.”
For years now, the ATF felt emboldened to legislate by regulation instead of enforcing what is already on the books. That behavior went largely unchecked by Congress but recently landed the agency in hot water with federal courts over its bump stock ban.
The Fifth Circuit Court of Appeals held last week that the ATF’s attempt to redefine non-mechanical bump stocks as “machineguns” did not match Congress’s statutory definition. Additionally, the court determined that the ATF performed “an exercise of legislative power, in violation of the Constitution’s vesting of all such power in Congress. U.S. Const. art. I, § 1.”
The same is likely true for the ATF’s pistol brace rule. Already, Second Amendment organizations have vowed to take the Biden administration to court over its attempts to retroactively criminalize law-abiding Americans over pistol braces.