In a move reminiscent of the movie Friday the 13th and appropriately ON Friday the 13th of January, 2023 President Biden’s ATF committed another macabre attack on gun owners.
What the heck happened?
“Jason”, aka the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE), released its long-awaited (and Biden-inspired) rules for AR-style handguns with stabilizing braces: “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces’”.
As was true of the new rule on unfinished frames and receivers, this nightmare of a Constitutional attack may not target all gun owners but as anyone who supports the Second Amendment, we all should be worried about what’s next. Given the Administration’s willingness to bypass Congress and the federal judiciary, we believe this is only the beginning.
The 293-page document painstakingly details why the ATF, after saying for years that braces did not make an AR-15 pistol a short-barreled rifle (SBR), has now decided that virtually all of the braces on the market do make an SBR and that they are now subject the registration, lengthy approval process, and tax required to legally possess one.
It is our belief, under the current administration, that the ATF cares little for judicial rulings and is simply pursuing its own agenda as directed by President Biden. So now, this becomes not sensible policy based on any kind of reasoned thinking, but a political football.
In creating the new rule, the ATF did exactly the same things that led to the Fifth Circuit Court of Appeals to declare that the bump-stock ban was unconstitutional earlier this month. In Cargill v. Garland, the en banc panel said the ATF had exceeded its authority by rewriting law, had also reversed years of previous determinations, and had violated the Appropriate Procedures Act, which lays out the rules for rulemaking by federal agencies.
As a partial factor in the agency’s latest about-face, the ATF noted that such guns had been used in two mass shootings. It’s unknown how many Americans already own these guns but their use in two mass shootings doesn’t seem to be much of a reason for imposing what is nothing short of a draconian burden on law-abiding citizens.
The agency also invokes the reasoning behind the inclusion of SBRs in the NFA: In 1934, they were considered “gangster weapons” and unusually dangerous because of their concealability. The fact that many more mass shooters have concealed full-size shotguns than have used SBR’s doesn’t appear to have fazed the agency in the least.
The ATF said, in its explanation of the new regulation, that it has redefined the definitions of rifle, short-barreled rifle, and firearm found in the National Firearms Act of 1934 and the Gun Control Act of 1968 to cover pistols equipped with stabilizing braces. The ATF tries to create some legal “coverage” for themselves by saying that the new rule does not affect all stabilizing braces, just the vast majority of them.
The rule indicates that current owners of these pistols and dealers with them in inventory could (not will) be exempted from the $200 tax but not from the registration and lengthy approval process. The agency estimated that its generosity would cost the government about $200 million, which gives you an idea of how many the ATF thinks are out there. Though this was a surprise to many who are affected by these onerous regulations, we believe it is nevertheless government overreach.
In addition, the rule offers no exemption for people with real physical challenges who need the braces to be able to use the firearms.This might be a legitimate claim under the Americans With Disabilities Act.
The ATF says that approvals for SBRs take an average of 30 days if you use the electronic system. Imagine how long it will take if anywhere close to a million applications are submitted within a short period of time. Getting approved for a machine gun might look like a breeze in comparison.
In creating the new rule, the ATF did exactly the same things that led to the Fifth Circuit Court of Appeals to declare that the bump-stock ban was unconstitutional earlier this month. In Cargill v. Garland, the en banc panel said the ATF had exceeded its authority by rewriting law, had reversed years of previous determinations, and had violated the Appropriate Procedures Act, which lays out the rules for rulemaking by federal agencies.
Now that the ATF has shown its hand, it should be easy for pro-2A groups to line up individuals who would be affected by the rule and file lawsuits in numerous judicial circuits, including the district courts in Fifth Circuit in Fort Worth. Armed with the Supreme Court’s ruling in West Virginia v. EPA and the Fifth Circuit’s final word in Cargill, we would expect appeals for at least a temporary restraining order or, better yet, a permanent injunction to be issued – with a decent chance they will be granted.
One possibility is that a lawsuit could be brought on the basis that AR-style pistols with braces are in common use for lawful purposes, the Heller standard for Second Amendment protection that was affirmed in McDonald v. Chicago and New York State Rifle and Pistol Association v. Bruen. After all, the guns that provided the reason for including SBRs and short-barreled shotguns in the NFA were literally rifles and shotguns that had been modified by their owners, not products that were manufactured by licensed manufacturers and sold through licensed dealers. Maybe we could finally get SBRs and SBSs removed from the National Firearms Act and the Gun Control Act.