June 22, 2020
By David Codrea
“Congressman Matt Gaetz announced … the ATF is crafting secret rules restricting the possession of certain pistol braces by American citizens, and that he has sent them a letter demanding they stop,” a June 16 Hot Take Press Room release reported. The letter, addressed to Attorney General William Barr and ATF Acting Director Regina Lombardo, was co-signed by Republican Reps. Neal P. Dunn, Bill Posey, W. Gregory Steube, John Rutherford, Ted S. Yoho, and Daniel Webster.
"We understand that ATF is currently considering restricting one arm brace model owned by over 700,000 Americans [and] strongly urge ATF to cease taking any actions and reconsider or rescind any secret determinations which call into question the legality of firearms owned by millions of law-abiding Americans."
ATF making and then changing its mind on rules that result in further infringements, not to mention economic losses for manufacturers and product owners – or loss of freedom for noncompliance – has turned out to be another way to enact bans that bypasses the representatives of the people. It does things by diktat that keep changing with the political winds.
Cases in point on braces:
The Gaetz letter noted, “ATF initially welcomed the advent of pistol arm braces. 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…”
In 2014, as Guns and Ammo reported, ATF advised a Colorado Police Department that had asked if “firing an AR-15 type pistol from the shoulder, specifically, if doing so would cause the pistol to be reclassified as a Short Barreled Rifle (SBR).”
“[W]e have determined that firing a pistol from the shoulder would not cause the pistol to be reclassified as an SBR," ATF’s Firearms Technology Branch Chief replied. “Generally speaking, we do not classify weapons based on how an individual uses a weapon. FTB has previously determined that the firing of a weapon from a particular position, such as placing the receiver extension of an AR-15 type pistol on the user’s shoulder, does not change the classification of a weapon. Further, certain firearm accessories such as the SIG Stability Brace have not been classified by FTB as shoulder stocks and, therefore, using the brace improperly does not constitute a design change.” [Emphasis in original.]
So, no problem, right? Come and get ‘em!
Then in 2015, NRA-ILA reported on ATFs “Open Letter on the Redesign of ‘Stabilizing Braces’.”
“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,” the reversed position stated.
Suddenly we had a problem. A huge problem, with life-destroying felony implications for anyone innocently caught up in a ridiculous bureaucratic net cast by people who either can’t make up their minds or have their minds made up for them by hidden, politically-motivated string pullers.
Fast forward to 2017 and it appeared everyone was happy again. Per a press release from SB Tactical:
“An NFA firearm has not necessarily been made when the device is not reconfigured for use as a shoulder stock – even if the attached firearm happens to be fired from the shoulder,” the reversed (yet again rule) assured everyone. “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.’”
Then in 2019, rumors were flying that ATF was once more on a reversal tear. This latest development seems to confirm the concerns were well-founded.
So, what’s the issue this time around?
"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," the Gaetz letter observes. "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.'”
And the upshot of that?
"Even more troubling are reports that these non-public standards are being used to criminally prosecute unsuspecting gun owners. Given ATF’s refusal to explain these standards, it is impossible for the public to comply with ATF’s ever-changing body of secret law,” Gaetz and company note. “To criminally charge an individual or threaten a company based on one ATF employee’s opinion of whether an arm brace shares enough unpublished 'design features' with a shoulder stock is an appalling abuse of power and shows a blatant disregard for due process."
Yeah, it’s what they do. This business of conflicting rules is no surprise to those of us who have been watching such things over the years.
In 2005, the Congressional Research Service published a memorandum regarding ATF firearms testing procedures. Among other things, it revealed that the ATF has “over 300 cubic feet of classification letters stored in file cabinets.” The Bureau hasn’t scanned any of these documents into a searchable database to assure consistency of interpretation, to identify and resolve regulatory conflicts. The extent to which this inconsistency has grown and compounded in intervening years is unknown and unknowable without a major organization and review effort.
The damn thing probably looks like the warehouse in Indiana Jones by now.
And it’s not just the rules that are a crap shoot, so is the punishment for running afoul of them. We’ve seen Adverse Actions in the past where ATF was violating dealer license revocation rules in defiance of policy and law. That the situation was ultimately “happily” resolved had less to do with fixing internal problems than they picked a target (Brinks) with the resources, will and legal savvy to defend itself. Good luck to the little guy.
“[E]ven during very conservative administrations, like President Trump’s, some do ‘try to make it more difficult to acquire things that shooters need and gun owners need, for safety and for the unique circumstances that an individual may have,’” Gaetz continues. He’s being unduly generous.
The president is who gave the green light to the “bump stock” ban (talk about legal, then illegal, then legal and now illegal again!), which has since been used to produce a court finding equating semiautos with machineguns. His “take the guns first, due process later” kneejerk raised red flags none of us who voted for him had counted on. He appointed gun ban-supporting William Barr as attorney general. He nominated former National Fraternal Order of Police President Kenneth Canterbury, a supporter of Eric Holder and Sonia Sotomayor, to be director of ATF. It’s increasingly hard to champion a man who at times seems set on blowing it “bigly” and the only thing keeping some of us going is the prospect of Joe Biden and all that implies.
What would be very helpful to have at this point would be copies of the private letters Gaetz mentions, and to that end, Firearms News has contacted his office via email because those answering the phone are caught up in the COVID-19 shutdown.
“What I am looking for are the ‘private letters’ listing ‘objective design features,’" I wrote to the congressman’s aide. “Realizing that recipients may not want their names made public, I'm wondering if you could provide copies with names and other identifiers redacted so that the firearms community could be informed of the specifics, and of who they came from. I would also be very interested in any for-the-record quote from the congressman in addition to what was stated in the letter and release.”
That was a few days ago, and no response has been received at this writing.
About David Codrea:
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 and AmmoLand Shooting Sports News, he blogs at “The War on Guns: Notes from the Resistance,” and posts on Twitter: @dcodrea and Facebook.