Texas Attorney General Ken Paxton and Gun Owners of America (GOA) filed a federal lawsuit yesterday challenging the Biden administration’s ban on the unregistered possession of pistols equipped with stabilizing braces, which went into effect on January 31. The case was filed in the U.S. Dist. The Court of the Southern District of Texas, argued that the ban was arbitrary and capricious, unconstitutional and inconsistent with the Second Amendment.
Like the Trump administration’s ban on bump stocks, the pistol brace rule is based on an implausible reinterpretation of federal law that contradicts positions federal regulators have taken for years. It therefore raised issues that convinced the US Court of Appeals for the 5th Circuit (which includes Texas) that the bump stock ban violated the Administrative Procedure Act. At bottom, the question is whether administrative agencies can criminalize the possession of legal products without congressional authorization.
When President Joe Biden announced the new rule in April 2021, he said it would “clarify” that adding a stabilizing brace “effectively turns a pistol into a short-barreled rifle subject to the requirements of the National Firearms Act.” That means anyone who owns a pistol with a stabilizing brace must register it with the federal government. The GOA warned that the new policy would result in “millions of AR-15s and other legally purchased pistols being confiscated, destroyed or forcibly registered.”
Do such pistols actually qualify as short-barreled rifles under the National Firearms Act (NFA)? The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has repeatedly said they do not.
The NFA defines a rifle as “a weapon designed or redesigned, manufactured or remanufactured and intended to be fired from the shoulder.” In 2017, the ATF reaffirmed that “stabilizing braces are perfectly legal accessories for large handguns or pistols,” although an accessory “employed as a shoulder stock” with a barrel less than 16 inches long would constitute “an unregistered NFA firearm.”
Biden asked the ATF to reverse that position, meaning that any stabilizing brace would qualify as a shoulder stock, even if the pistol attached to it was not “intended to be fired from the shoulder.” As with the Trump administration’s claim that rifles equipped with bump stocks qualify as machine guns under the NFA, that nexus appears inconsistent with the statutory definition. “ATF’s purported ‘interpretation’ of the statute in the final rule,” the suit says, “is incomprehensible, arbitrary and capricious and certainly not the ‘best interpretation’ of the statute.”
When the NFA was enacted in 1934, it included a $200 tax on the transfer of weapons, amounting to about $4,500 in current dollars, that were prohibited. The ATF said the law’s “underlying purpose was to reduce, if not prohibit, the sale of NFA firearms.” Originally, that “NFA firearm” included pistols. The ban on short-barreled rifles was intended to circumvent the ban on pistols by cutting down long guns, making them easier to conceal.
“Although pistols were removed from the NFA’s language before it was finally enacted, short-barreled rifles and weapons made from rifles were not removed and continued to be taxed,” the lawsuit notes. “This makes absolutely no sense from a ‘public safety’ or common sense perspective, as a person can legally possess both a handgun (short) and rifle (long) version of the same platform firearm without NFA registration. (AR-15 or AK-47) , but cannot possess the ‘short barreled rifle’ (medium) version of the same platform.”
Whether it is understood or not, this was the rule made by the Congress. But now the ATF says pistols are covered by the NFA when they are equipped with stabilizing braces, even though it has said the opposite for a decade. When the question first came up in 2012, the ATF said the “deposited ‘bracket,’ when attached to a firearm, ‘did not convert that weapon to be fired from the shoulder and would not change the classification of a pistol or other firearm,’ and so, ‘ Such firearms shall not be subject to NFA regulation.’
Since then, the ATF has repeatedly approved similar designs. As recently as July 2018, the ATF stated that a brace “designed to help shooters stabilize a handgun while firing one-handed…is not considered a shoulder stock and therefore does not constitute an NFA firearm attached to a handgun. can go.” As a result of this classification decision, the lawsuit states, “millions of Americans already legally own pistols with stabilized braces, which were purchased and manufactured in the years since they were invented and first approved by the ATF in 2012.”
The ATF’s new rules make those pistols illegal unless owners go through a registration process, which includes submitting fingerprints, identifying information and photos of the owner and firearm. If they do not comply with these requirements by May 31, their continued possession of a pistol with a stabilizing brace will be a felony punishable by a fine of up to $10,000 and/or up to 10 years in prison. The ATF’s rules, the lawsuit notes, “subject millions of American citizens to criminal penalties for possessing firearms they legally purchased, often with ATF’s express approval.”
The ATF waives the tax on previously owned guns that it now considers “short barrel rifles.” The agency said it was “appropriate to incur this previous tax liability” in light of “public confusion” about the status of pistols equipped with braces. But that confusion, the lawsuit notes, is entirely due to ATF’s reversal of its longstanding position: “ATF has repeatedly and clearly stated that various stabilizing brackets do not make firearms the short-barreled firearms ATF now claims they are.”
Under the new rules, a pistol becomes a rifle when it is “equipped with an accessory, or other rear attachment (eg, a ‘fixing bracket’) that provides a surface area that allows the weapon to be fired from the shoulder, if other factors …indicates that the weapon is designed, manufactured and intended to be fired from the shoulder.” The rule lists six “other factors,” including the weapon’s “weight or length,” “length of pull,” “marketing and promotional materials,” and “information demonstrating the potential use of the weapon.”
The lawsuit argues that the new definition is a hopeless mess, leaving gun owners to guess how the ATF will weigh “other factors.” It noted that the ATF is “unwilling to even promise that the AR-15 style pistol Without braces (which has been around for decades) not short-barreled rifles.”
Plaintiffs say the rule is “designed to be vague and unintelligible from the ground up, leaving gun owners with no way to conclusively determine whether their firearms are unregistered short-barreled rifles.” “None of the purported reasons for regulation have any meaning, completely devoid of quantifiable standards. This is not the rule of law. Americans do not need to guess whether they are committing a serious crime, at risk if the ATF reaches a different, arbitrary conclusion that their lives will be ruined.” The rule’s vagueness, the plaintiffs argue, violates the Fifth Amendment’s due process guarantee as well as the Administrative Procedure Act.
The lawsuit also argues that ATF’s reclassification of short-barreled rifles violates the Administrative Procedure Act because it is “arbitrary and capricious.” Manufacturers and gun owners who relied on the ATF’s guidance to determine how to comply with the law suddenly face a new risk of criminal charges, even though the law hasn’t changed. This threat, the plaintiffs say, exceeds the authority Congress has given the ATF.
The ATF “may not legislate through regulations to implement the perceived intent of Congress or the intent of Congress behind federal gun control laws,” the suit says. “Congress did not authorize the ATF, decades after the law was passed and at least a decade after the first static brace was classified as permissive, to reverse its longstanding policy, materially revise the definition and change the classification of millions of legally purchased firearms. They are under the control of the NFA. “
The NFA was clearly an exercise of taxing power and the registration was supposedly designed to facilitate revenue collection. Although the ATF claims it is exercising its authority to tax short-barreled rifles, it does not plan to collect the tax from current owners of braced pistols. Requiring registration without collecting taxes, the plaintiffs argue, removes the constitutional rationale of the law.
The suit also argues that the ban on pistol braces violates the right to keep and bear arms. Because these products are in “common use” for “lawful purposes,” the plaintiffs say, they are covered by the Second Amendment, which means the government has the burden of showing that the ban is “consistent with the nation’s historic tradition of gun control.” Since the government “cannot meet this burden,” they Argues, “This regulation of handguns is unconstitutional.”
Even if pistols with braces qualify as “short-barreled rifles,” the lawsuit says, that doesn’t exempt them from the Second Amendment. “There is a broad historical tradition, contemporaneous with the founding era, of the widespread existence of short-stock pistols or short-barreled rifles,” the suit says, citing numerous examples. “There were never restrictions on who could possess such firearms, and registration was not required until the passage of the NFA.”
Plaintiffs also argue that ATF’s registration requirements violate the Fifth Amendment’s protection against self-incrimination. Despite its earlier advice to the contrary, the ATF now maintains that braced pistols have always been covered by the NFA. “The ATF claims that anyone in possession of a loaded pistol is and was in unlawful possession [short-barreled rifle] But the ATF will still allow the person to remain in their illegal possession [short-barreled rifle], if the possessor provides the ATF with their identifying information, including information identifying the firearm (i.e., evidence of the alleged crime). ATF claims to allow this through the exercise of its ‘enforcement discretion’
But what about the 24 states that individually ban short-barreled rifles unless they are registered with the federal government? If gun owners who live in that state comply with the ATF’s new registration requirements, they will have to provide proof that they have previously violated the law. The lawsuit notes that the registration information will be shared with state authorities, “so those who may use it to prosecute the registrant.”
This terrifying and confusing situation is what happens when the executive branch invents crimes under the guise of law enforcement. Americans who obey the rules the government has interpreted to them are transformed into criminals by administrative fiat.