September 30, 2022
“The Biden-Harris Administration and the ATF are cracking down on your right to own a pistol,” Gun Owners of America declares. “The upcoming ‘Amnesty Registration’ rule for pistol braces will facilitate the banning and registration of millions of pistol-braced weapons.”
Owners will be faced with two choices, GOA warns, “Give the ATF your name, Social Security number, address, phone number, email, payment information, FINGERPRINTS, as well as the make, model, and serial number of your firearm – and provide photographic evidence of your compliance OR Face jail time and pay a $250,000 fine.”
Our Story Thus Far
How things got to this point is a case study in the Bureau usurping powers to effectively “legislate” through often contradictory rule changes. Nowhere has this been more apparent than with braces, and ATF’s on again/off again reversals on their “legality.”
“ATF initially welcomed the advent of pistol arm braces,” Rep. Matt Gaetz noted in a June 2020 letter cosigned by half-a-dozen Republican colleagues and sent to ATF, to then Attorney General William Barr (see Firearms News, Aug. 2020, Issue #15). “In 2012, ATF correctly determined that the attachment of arm braces to large pistol platforms does not constitute the manufacture of a short-barreled rifle … subject to registration requirements under the National Firearms Act…”
They repeated that assessment in a 2014 advisory to a Colorado police department, noting “certain firearm accessories such as the SIG Stability Brace have not been classified by [Firearms Technology Branch] as shoulder stocks and, therefore, using the brace improperly does not constitute a design change.” Then in 2015, everything changed.
“Any person who intends to use a handgun stabilizing brace as a shoulder stock on a pistol (having a rifled barrel under 16 inches in length or a smooth bore firearm with a barrel under 18 inches in length) must first file an ATF Form 1 and pay the applicable tax because the resulting firearm will be subject to all provisions of the NFA,” ATF declared in its “Open Letter on the Redesign of ‘Stabilizing Braces.”
Not so, a 2017 press release from SB Tactical asserted. “To the extent that the January 2015 Open Letter implied or has been construed to hold that incidental, sporadic, or situational ‘use’ of an arm-brace (in its original approved configuration) equipped firearm from a firing position at or near the shoulder was sufficient to constitute ‘redesign,’ such interpretations are incorrect and not consistent with ATF’s interpretation of the statute or the manner in which it has historically been enforced.’”
"Unbeknownst to the general public, ATF has ordained in private determination letters that it considers 'any firearm with a length of pull over 13-1/2 inches to be designed to be fired from the shoulder,' thereby making it a short-barreled rifle," Gaetz continued in his letter. "However, ATF has also privately proclaimed that even firearms under this length of pull can be classified as a short-barreled rifle, if ATF identifies other (and often unspecified) applicable 'indicators.'”
So why all the back-and-forth, and why is ATF getting ready to pull this new and unheard of “amnesty” now? Recalling the vulgar joke about why a dog licks itself, the answer here seems to be the same: Because they can.
But Can They? Really?
“NFA Division personnel will use the information collection on ATF Form 1 to determine the legality of the application under Federal, State and local law,” ATF states in its Office of Management and Budget Justification.
“Oh my, this may break the NFRTR [National Firearms Registration and Transfer Record],” a friend and colleague responded in an email group of firearms and firearms law advisors I regularly corresponded with. We’re basically a group that compares notes, offers insights and occasionally acts in concert, prompting U.S. attorneys defending ATF against one of our Freedom of Information Act requests to disparage and dismiss us as “a tangled web of connections between a small cadre of firearms activists...”
My fellow “small cadre” member is not far wrong.
ATF’s OMB Supporting Statement assumes its “total annual IC [information collection] burden is 102,808 hours.” That’s 2,570 40-hour weeks.
“In fiscal year (FY) 2020, ATF had 5,082 employees, including 2,653 special agents and 760 industry operations investigators,” ATF notes. How many of those will be put on Brace duty to clear out the backlog is unclear, especially since before this all the rage has been to complain about how they’re understaffed and take forever to perform traces because the mean old Republicans won’t let them put everything into one big registration database (allegedly necessitating some creative cellphone camera work by lawbreaking inspectors caught on video snapping bound book pics).
Is Help on the Way?
“The President has already proposed to increase funding for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) by 13% so ATF can hire new agents and investigators,” the White House announced in July as part of its “The Safer America Plan.” So, what are we really talking about in terms of making all this doable?
“Currently, there are at least four million braced pistols in the United States,” investigative journalist John Crump writes on AmmoLand. Crump is the reporter who broke this story after he uncovered and analyzed ATF’s budget request. His number estimate comports with ATF’s Notice of Proposed Rulemaking, which claims “Anecdotal evidence from the manufacturers of the affected ‘stabilizing braces’ indicates that the manufacturers have sold between 3 million and 7 million ‘stabilizing braces’ between the years 2013 to 2020 or over the course of eight years. For the purposes of this analysis, ATF uses 3 million as the low estimate and primary estimate of affected ‘stabilizing braces.’”
“It remains to be seen if the system can withstand millions of additional form submissions,” Crump observes. “This influx of millions of new applications for the ATF Pistol Brace registration would also backlog any other forms submitted through the same processing.”
GOA, for its part, kicks that number up by an order of magnitude, noting “According to the ATF itself, completing a Form 1 takes approximately four hours. That means, the owners of up to 40,000,000 braced weapons will spend up to a collective 160,000,000 hours registering their lawfully acquired firearms ... “
“The ATF reportedly processed 512,315 National Firearms Act forms in 2020,” GOA relates from ATF’s OMB statement. “At that rate – assuming no further backlog and assuming all affected gun owners comply with gun registration – it would take the ATF over 78 years to process all the pistol registration forms.”
Curious as to why there is such a huge difference between GOA’s and other estimates, Firearms News contacted Director of Federal Affairs Aiden Johnston, who cited Congressional Research Service’s “Handguns, Stabilizing Braces, and Related Components.”
“While there are no available statistics to gauge authoritatively the number of stabilizing braces already made and sold in the United States, unofficial estimates suggest that there are between 10 and 40 million stabilizing braces and similar components already in civilian hands, either purchased as accessories or already attached to firearms made at home or at the factory,” the report states. Since CRS is the Library of Congress’ official research group working “primarily and directly for members of Congress and their committees and staff,” GOA chose to use the same data lawmakers rely on.
Noting how the citizen disarmament powers-that-be operate, it’s not out of line to anticipate worst-case scenarios where what they can get today metastasizes into “everything” tomorrow.
But There’s a Bigger Issue at Play
“MAYBE what it will do is get some Member(s) of Congress to request GAO to do a forensic audit of the NFRTR to determine its accuracy and reliability,” another one of my “small cadre” advisors chimed in, pointing out the elephant in the room that “amnesty” proponents don’t much want to talk about.
There is much to talk about, but there’s much to read about first. One data-and history-rich resource is the NFA Owners Association website, and for the purposes of this article, a new entry titled “Amnesty: Documents and ATF activities relevant to §207(b) and § 207(d) of the Gun Control Act of 1968” offers many relevant insights. Foremost among those is a 2005 CRS report (the research group discussed above) by analyst William J. Krouse titled “ATF’s National Firearms Registration and Transfer Record: Issues Regarding Data Accuracy, Completeness and Reliability.”
Or to put it in the vernacular: Garbage In/Garbage Out. And it’s been that way for a long time.
“We continuously discover discrepancies and inaccuracies in the registration file which, if discovered during trial, would destroy the future credibility of such evidence,” the then-NFA Branch Chief admitted in a 1975 internal memorandum. “If the court should discover that our negligence caused an unwarranted arrest and trial, the resultant loss of public trust would be irreparable.”
Things had not improved 20 years later when another NFA Branch Chief made a telling admission in an ATF “roll call” training session.
“Let me say that when we testify in court, we testify that the database (NFRTR) is 100% accurate. That’s what we testify to, and we will always testify to that,” he declared. “As you probably well know, that may not be 100% true.”
There’s a word for that, isn’t there? A legal term that starts with “p”...?
“Stephen Halbrook – an attorney who specializes in firearms law – has advised that in NFA-related criminal proceeedings the defense should file discovery motions for U.S. government documents... that he maintains cast a reasonable doubt as to whether the NFRTR database is accurate, complete, and reliable,” the CRS report noted.
Halbrook’s not the only one.
“In a major victory for those of us arguing that the National Firearms Registration and Transfer Record (NFRTR) is insufficient for criminal proceedings, Dr. Fritz Scheuren, ‘the’ statistician in the United States (possibly the world), today informed the United States District Court, Western District of Oklahoma ... that the NFRTR is insufficient for criminal proceedings,” Prince Law Blog reported in 2008. “[T]his is a MAJOR defeat for the BATFE, who, over the years, has argued that although the NFRTR is flawed, it still can be used in criminal proceedings.”
That was the case of US v. Larry Douglas Friesen, pitting the feds against an Oklahoma City attorney and concealed carry course instructor accused of illegal machinegun possession and lying to authorities, with five counts returned by a grand jury and Friesen facing serious prison time if convicted.
The lies and inaccuracies cited above were brought to bear in the “Defendant’s Motion in Limine to Prohibit Government’s Introduction or Reference to Records Maintained in the National Firearms Registration and Transfer Record.”
For those unfamiliar with the term, Cornell Law School’s Legal Information Institute tells us a Motion in Limine is “A pretrial motion asking that certain evidence be found inadmissible, and that it not be referred to or offered at trial.”
It worked, and an interested private citizen who had filed a FOIA request yielding much of the documentation the successful motion relied on -- and incidentally, a “senior founding member” of our “small cadre” – tells Firearms News “Here's the Motion in Limine that got four felonies plea bargained down to a single $25 misdemeanor.”
The government really doesn’t want this widely known.
It’s a Trap!
Admiral Ackbar’s famous epiphany from Star Wars is echoed by Washington Gun Law President and attorney William Kirk in a YouTube video asking “Is Pistol Brace Amnesty About to Become the Biggest Trap Ever Set?”
“When examining the plain language used by the ATF on three important ATF documents, we've come to not only a conclusion that many of you have arrived at already, but we think we know how the trap will be sprung,” Kirk claims in the video description. “If true, this will be one of the greatest acts of deceit by any modern government.”
“The dots are connected from three documents,” Kirk explains, identifying the ATF Budget Request, ATF Form 1, Application to Make and Register a Firearm, “as it currently exists and what could be added to it,” and ATF “worksheet” Form 4999 (FACTORING CRITERIA FOR RIFLED BARREL WEAPONS WITH ACCESSORIES* commonly referred to as “STABILIZING BRACES”).
“That is the form that ATF is going to be used to score an AR pistol to determine is it really an AR pistol or a federally-regulated short barrel rifle, buying you a $200 tax stamp,” Kirk elaborates, noting how photos and fingerprints will be used in the determination of if a weapon qualifies for amnesty registration, and anticipating modification of Form 1 to accommodate the new requirements.
“When you submit all that information to ATF on what will clearly be the new and improved Form 1, ATF is going to run that firearm through its 4999 checklist, and if – and trust me, most of you will be in this category – if you score four points or more on the 4999, you are going to receive a letter from ATF saying ‘your firearm does NOT qualify for amnesty registration, you OWE us a $200 tax stamp, otherwise, you can forfeit the weapon.’”
“That, my friends, is the great trap that is being set by amnesty registration,” Kirk concludes, noting that rather than being “a wild conspiracy theory,” he is “taking the language directly form ATF’s Budget Request ... taking language directly form ATF’s Form 1 and ... taking the criteria directly from ATF’s 4999.”
After the trap is sprung, what then? By now, all informed gun owners have seen the reports and videos of ATF showing up at people’s houses without warrants asking to see guns they have records on. Look for that to increase and look for warrants going out on people they figure they now have “probable cause” to investigate.
Remember we are dealing with enforcers of infringements who are not above entrapment, and as we see from the history of NFRTR administration, cover-ups and outright perjury. If they do show up at our doors, let’s not forget the advice of Regent Law Professor James Duane in his video presentation wherein he gives probably the most important piece of legal advice a citizen approached by law enforcement will ever hear:
“Don’t talk to the police.” (See this video on YouTube by the Regent University School of Law.)
About the Author
Columnist David Codrea is the winner of multiple journalist awards for investigating/defending the RKBA and a long-time gun owner rights advocate who defiantly challenges the folly of citizen disarmament. In addition to being a regular featured contributor for Firearms News he blogs at “The War on Guns: Notes from the Resistance,” and posts on Twitter @dcodrea and Facebook.