Great, Republicans are finally going to care enough about a gun issue to try to do something... of course it is no surprise that they pick the one issue that the gun industry is on the wrong side of. They'll no doubt screw up the free tax stamp offer for those of us that actually want to use it.
I'm sorry but I've just got 3 questions for all of you complaining about this rule soooo much.
1. Do you have a pistol with a stabilizing brace?
2. Do you fire it shouldered?
3. What makes you think that it isn't a stock then?
1. I do.
2. I do.
3. I agree the ATF could have used its authority in 2012 to define braced pistols as SBRs under the principle of Chevron Deference and a common sense interpretation based on the intent of the SBR provisions of the NFA of 1934. In short, if it looks like a stock and can be used like a stock, it’s a stock, and if it’s mounted on a rifled barrel firearms with a barrel less than 16”, it’s an SBR. Period. Full stop. No one would have challenged them on it. They could have addressed the alleged accessibility/disability by waiving the tax stamp fee for SBR registrations for people with qualifying documented disabilities.
But that’s not what the ATF did.
The ATF used a narrow read of the law to review the issue of pistol braces against the regulations and determined a braced pistol was in fact not an SBR, but was in fact still a pistol, regardless of whether it was shouldered.
In 2015, the ATF tried to stick that genie back in the bottle by claiming that shouldering a braced pistol made it an SBR. In simple terms they claimed how a firearm is used defines its classification and rifles were made to be shot with two hands. By extension then, so was the 1911. Not surprisingly that effort didn’t withstand even basic scrutiny and they pulled it back.
Then under the current administration they passed a proposed rule and got roughly 20,000 comments in support, 8,000 of those being form letters, against 217,000 comments in opposition to the proposed rules. And yet they persisted with the rule banning pistols braces.
The ATF has also persisted despite Supreme Court rulings gutting its ban on bump stocks, which had the same regulatory trajectory on being approved (since 2013) and then suddenly banned when ATF reversed its original interpretation.
The difference between the ATF using Chevron deference in 2012 to say pistol braces are legal, and using Chevron deference now - after 20 million of them have been sold - is that now individuals who legally bought them after ATF approved them are in a position of hanging to register them, or face criminal penalties and imprisonment.
The ATF does not have the authority to do that. Under administrative law, a cognizant agency, like ATF, in charge of a set of regulations, is granted a great deal of latitude in its interpretation as long as the statute is silent on the issue, and the interpretation made is a “reasonable construction” of the statute.
However, ATF cannot approve them, allow millions to be sold and then make a second redetermination reversing their first determination resulting in criminal penalties for people who do not comply.
When criminal penalties are involved the Rule of Lenity must be applied prior to a Chevron deference and in essence it requires an interpretation be made that is “most favorable” to the defendant. In this case, ATF canto claim there is not an interpretation that makes braced pistols legal, their interpretation did exactly that from 2012 to 2022.
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Now…I get it. Many people are still stuck on the “if it looks like it…” idea. But even if we set aside the administrative law aspects of that ship already sailing, so what?
In 1934 folks like Clyde Barrow were sawing the barrels off on full auto weapons like the Colt Monitor (a favorite of Clyde’s) to better conceal them under a trench coat for the purpose of knocking off a bank. Thus the NFA of 1934 and related registration and tax stamp fees. Which of course members of criminal gangs ignored anyway.
Fast forward to 2012 when braced pistols were approved by ATF what happened? Not much. They didn’t cause any spike in crime.
The industry sold about 20 million of them (industry estimates, ATF says “only” 3 million), and ATF cited exactly two crimes where braced pistols were present. Both were mass shootings, but at the time the NPRM was published there had been over 2600 mass shootings between 2012 and 2022 when the rule went out for comment. That’s 2 out of 2600 mass shooting, or just 0.07% and just 2 out of 3 million, or 0.0007% of all braced pistols sold (and that’s using ATFs low estimate).
And strictly speaking, the two pistols with their short barrels, used in those mass shootings were less lethal than the longer barrel rifle and carbine versions of them would have been.
So I’m just not seeing where the benefit is in banning them. Braced pistols are still to large and too hard to conceal to be used in any significant degree by criminals, and when used will be by definition less lethal than a longer barrel counterpart shooting the same ammo at higher velocity.
More over, since SBRs and suppressors are virtually never used in crimes as well, the smarter move is to just remove those items from the registration requirements of the NFA. Make them a check box like “handgun” on form 4473 and require a purchase permit just like a handgun. It makes them items subject to local control at the discretion of the states.
It would also save the ATF about 90 FTEs currently running background checks on those items that instead could be doing things that are far more productive, like running down social media leads when mass shooters invariable broadcast their intentions in advance.
