ATF rule could sweep up to 40 million pistols into gun registry
Once again, the bureaucratic tail is wagging the elected dog
The Biden administration has published a new rule that will require millions of Americans, including many disabled veterans, to register and pay taxes on up to 40 million pistols with stabilizing braces, but the pushback has been fierce, with lawsuits filed, legislation introduced, sheriffs balking at enforcement, and one U.S. House member calling for the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to be abolished.
With the rule, the ATF is recategorizing many, if not all, pistols with stabilizing braces as short-barreled rifles, which would regulate them under the National Firearms Act. The stabilizing braces were designed to help disabled veterans fire their pistols safely.
Under the rule, guns categorized as short-barreled rifles must be registered no later than May 31. For those who are unwilling to register, the rule requires gun owners to destroy their stabilizing brace or turn in the weapon. Failure to register or destroy a previously legally owned pistol brace can result in a 10-year prison sentence and up to $10,000 in fines.
In the meantime, multiple lawsuits have already been filed to stop the rule’s implementation. The Wisconsin Institute for Law and Liberty (WILL) filed a suit in federal district court in Texas on behalf of three veterans, while the Firearms Policy Coalition (FPC), a Second Amendment advocacy group, has filed a second lawsuit. Both lawsuits complain that the rule is unconstitutional and violates the Administrative Procedures Act. In a third lawsuit, 25 states have joined a West Virginia-led lawsuit challenging the rule.
In Congress, GOP senators led by Sen. John Kennedy of Louisiana and Sen. Roger Marshall of Kansas have introduced legislation to block the rule, and some sheriffs across the country have declared they won’t enforce it.
In Wisconsin, Polk County Sheriff Brent Waak and Oneida County sheriff Grady Hartman are in that group. Last week Hartman told me:
I don’t agree with the new ATF rule on pistol braces. It is frustrating when the ATF arbitrarily changes law which makes an item legal one day, and then illegal the next. My opinion is the rule change is unconstitutional, much like the bump stock ban which was recently overturned. We have no intention on enforcing this new rule and instead will keep focusing on the more important issues, like concentrating on the meth epidemic.
There’s a lot on the line in these lawsuits. For one thing, what the government wants almost more than anything else is a gun registry, and this takes another big step toward that. Bottom line, the government wants to know who has weapons—unless you’re a violent criminal, of course—and why on earth would the government need to know that? Purely innocent motivation, I’m sure.
Second, this is another textbook example of a bureaucracy simply writing law on its own. Bureaucracies these days, when crafting rules, add to the statutory delineations for rule development, and they do so in two ways: They redefine what the criteria means, and, two, they attach to specific criteria the vague consideration of “other factors.” In other words, the statute means what the bureaucracy says it means. And in this case, the government has decided that any pistol with a stabilizing brace is automatically a short-barreled rifle requiring registration and regulation under federal law, despite previous determinations that that was not the case.
Third, this is a prime example of the need for enhanced legislative oversight. The primary pushback against this rule apparently will be litigation. That’s OK as a path of resistance, but legislatively the response has been the introduction of new legislation to de-regulate short-barreled rifles (rifles with a barrel length of less than 16 inches) and short-barreled shotguns (shotguns with a barrel length of less than 18 inches), essentially exempting such firearms from the National Firearms Act. That’s needed to be sure, because the existing statute is, as we shall see, hopelessly vague, which allowed the bureaucracy to drive a truck through it.
But the real legislation that should be in place is the REINS Act, a bill that would require every new "major rule" proposed by federal agencies to be approved by both the House and Senate before going into effect, with Congress having the authority to disapprove of a “nonmajor rule” through a joint resolution. This way elected leaders are forced to sign off that a major rule will do what elected lawmakers intended it to do. With such a measure in place, Congress’s ability to rein in the bureaucracy is active rather than passive, and also—an added bonus—they can no longer pass the buck by blaming the bureaucracy for something they knew the bureaucracy would do for them. Republicans had the opportunity to enact this legislation when Donald Trump was president and the GOP controlled both the House and Senate, and that they did not do so is one of the great sins of omission of that era. It’s an example of classic Republicanism: Talk about fundamental conservative change that will actually shrink government and grow liberty while out of power, and then politely and silently decline to do so when in power. Anyway, if the REINS Act was in place, the ATF would have had to come to Congress and win its outright approval before the rule was enacted instead of the situation we have now, when legislation that cannot pass is needed to block to rule. The bureaucratic tail is wagging the elected dog, and it’s exactly backwards.
Let’s take a closer look at what’s a stake: