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Bureau of Alcohol, Tobacco, Firearms, and Explosives Oversteps Again

By Griffin Saltron, Jan 30, 2023

On January 13, 2023 The Bureau of Alcohol, Tobacco, Firearms, and Explosives’ (ATF) final rule (2021R-08F), “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces,’” was signed by Attorney General Merrick Garland. The rule revolves around stabilizing braces, also known as a pistol braces, which are intended to attach or hold to the forearm of the user in order to increase stability when using a pistol. The purpose of these attachments is to assist those who are disabled or who struggle in some capacity to manage the weight of a pistol. This includes people with arthritis, amputees, or who for any other reason struggle to stabilize a pistol with their hands alone. Pistol braces effectively act as a cane or walker for someone with an upper body disability by assisting in the stabilization of a firearm during self-defense or recreational applications. The recreational uses of pistol braces have been seen to help veterans “find purpose” by allowing them to practice a skill they once were proficient in. Pistol braces also act as “another avenue of getting injured veterans out of the house” further assisting in rehabilitation efforts. The new ATF rule would require stabilizing braces to be subject to regulation under the National Firearms Act (NFA).

In the recent rule promulgated by the ATF, pistol braces are treated as though they function as stocks and, therefore, they turn pistols into short-barreled rifles (SBR) upon attachment. This is due to a belief that individuals press the brace up to their shoulder, utilizing it as a stock instead of its intended purpose. While some individuals do improperly utilize pistol braces, that is true of most any product. However, this overly broad rule captures the overwhelming majority ofindividuals who use them properly, and that is not good public policy. Indeed, this policy utilizesa small minority to justify a burdensome imposition on everyone else.

This imposition generates a change to the treatment of pistol braces, bringing them under the same classification (and, thus, the same regulations) as automatic weapons, suppressors, and the aforementioned SBRs. In making such a classification, the ATF’s new rule will require registration of pistol braces and a $200 tax stamp, as is already required of items such as automatic weapons, suppressors, and SBRs. As with other forms of gun control, these regulations are made entirely on the basis of attachments and arbitrary designations, and not the functionality of the firearm. Regardless of whether a pistol brace, stock, or nothing is attached,the same firearm possessing the same capabilities is present. The only difference is the colloquial determination–made official by the federal government—of what is and is not considered a rifle.

Like other items that require registration under the NFA, information associated with the pistol brace will be maintained in “the National Firearms Registration and Transfer Record (NFRTR), the central registry for all items regulated under the NFA.” The information that will be collected and maintained in the registry “includes (1) the identification of the firearm, (2) date of registration, and (3) identification and address of the person entitled to possession of the firearm (the person to whom the firearm is registered)”. The recategorization also includes those items already in circulation, retroactively requiring these firearms with attached braces to be registered within “120-days from the date of publication in the Federal Register.” This is effectively a mandatory gun registry for these select firearms and a punishment for partaking in actions the ATF previously determined permissible. If an individual fails to register, they will be in violation of the NFA and actively committing a felony.

The ATF made a half-hearted attempt to allow for some pistol braces to not be subject to the NFA, as long as they are not “designed, made, and intended to be fired from the shoulder.”However, the ATF has already shown that it believes it can assign intent retroactively as it believes the intent of a “Pistol Brace” is to be used as a stock instead of its namesake. This distrust in developers and gun owners suggests that they would ascribe the intent of being fired from the shoulder to any attempt at developing a pistol brace. As a result of this rule, a consumer or producer of pistol braces will not be on notice that the ATF may arrest them for Felony Possession of a Prohibited Item. They would face being “fined not more than $10,000, or be imprisoned not more than ten years, or both”. This is unconscionable. Regulations have the force of law and the law should not be enforced arbitrarily.

This is a clear example of the executive branch creating law under a dubious claim of authority.At least one party is arguing that Congress has not authorized the ATF to promulgate this particular set of rules, which would likely make them illegitimate under the Supreme Court’s recent precedent in West Virginia v. Environmental Protection Agency. Another party is arguing that the new rules violate the Americans With Disabilities Act, given the intended use of pistol braces to help the disabled.

As a result of these legal questions and the general overreach by the Federal Government with this rule, the Texas Legislature should take action to safeguard its constituents, whether disabled or not, from these changes. These safeguards can follow in the footsteps of House Bill 957(Oliverson) which the legislature passed in the 87th Regular Session. The Bill, now law, established that “a firearm suppressor that is manufactured and remains in Texas is not subject to federal law or regulation under the authority of the U.S. Congress to regulate interstate commerce”. This effectively removed the suppressor from the NFA in Texas as long as said suppressor is manufactured and remains in Texas. As the new rule set by the ATF does turn law abiding citizens into criminals, targets those with disabilities, and is likely illegal similar action should be taken in the 88th Legislative Session to protect Texans from the Executive overreach of the ATF and Biden Administration.


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