The recent rule change regulating stabilizer braces for AR-15 pistols by the Bureau of Alcohol, Tobacco, and Firearms (ATF) is unconstitutional. But not for the reasons you may think or the ones that have been widely argued. The National Firearms Act (NFA), which the ATF claims allows for the rule, has been overcome by events and no longer applies to these weapons.
First, some background.
A stabilizing brace is an accessory for AR-15 pistols that was ostensibly designed to help fire a short-barreled weapon more accurately. The controversy arose due to the NFA, which bans rifles with a barrel shorter than 16 inches. These are known collectively as short-barreled rifles (SBR). AR-15-style pistols definitely have barrels shorter than 16 inches, but since they do not have a stock allowing them to be fired from the shoulder, they are classified as pistols.
No problem so far. But the stabilizing braces began to obscure this distinction. At first they simply extended a short distance from the rear of the pistol and had straps that wrapped around the forearm of the shooter, thus stabilizing the weapon. But they eventually extended further to become essentially a collapsible stock which when extended made the AR-15 pistol for all intents and purposes an SBR.
The ATF initially reacted to this by publishing a proposed rule in December 2020 that stated that the design and intention of a stabilizing brace could bring it under their review as an SBR.
For example, if FATD (Firearms and Ammunition Technology Division of ATF) classified a firearm with an arm brace as a “pistol,” that classification would be subject to FATD’s review if the manufacturer sold the product with the instruction that the weapon is actually designed and intended to be fired from the shoulder.
The ATF was right, something you will not often see me write, about the intent of a collapsible stock style brace. It is a way to game the restriction on SBRs. But the bureau came under justified attack for planning to outlaw a large array of legal weapons based on bureaucrats’ ability to divine the intent of their owners. ATF eventually withdrew the proposed rule and pistol braces continued to proliferate.
Driven by the incessant howls of the woke Left to “do something” about guns, the Biden Administration decided to do something.
On January 13, 2023, the Attorney General signed ATF final rule 2021R-08F, “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces,’” amending ATF’s regulations to clarify when a rifle is designed, made, and intended to be fired from the shoulder.
This rule administratively regulates hundreds of thousands of weapons and makes outlaws of their owners, unless they comply.
Any weapons with ‘stabilizing braces’ or similar attachments that constitute rifles under the NFA must be registered no later than 120 days after date of publication in the Federal Register; or the short barrel removed and a 16-inch or longer rifle barrel attached to the firearm; or permanently remove and dispose of, or alter, the ‘stabilizing brace’ such that it cannot be reattached; or the firearm is turned in to your local ATF office. Or the firearm is destroyed.
The question of whether a federal agency can use their powers to create felonies based on their divination of a citizen’s intent for a future use of an otherwise legal product was never tested in court. It may turn out to be a complete overreach and it certainly smacks of the idea of “futurecrime” from the movie “Minority Report.”
But there is a more basic flaw in the ATF rationale and it lies in the U.S. Supreme Court’s ruling in District of Columbia v. Heller, which upheld an individual right to own weapons for any legal use.
The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
Justice Antonin Scalia relied on the United States v. Miller ruling from 1939, which upheld the NFA’s regulation of short-barreled weapons stating that protected weapons must bear a “reasonable relationship to the preservation or efficiency of a well regulated militia.”
Miller concerned a sawed-off shotgun not bearing a relationship to militia use. Scalia noted the individual right was designed so that any citizen could own and bring to service in the militia a weapon suitable for use as an individual soldier. Today that is what protects the AR-15 semi-automatic rifle and related weapons as they are in common use and essentially similar to a service rifle.
But the most recent military rifle used by individual soldiers is the M4 carbine, which has a 14.5-inch barrel. Hmm—that makes it a short-barreled rifle. If the military is using SBRs, then the determinations in Miller and Heller that a weapon be in common use and suitable for use in the militia are satisfied. The ATF attempt to regulate them should be overturned and the NFA modified to acknowledge this reality. I’m pretty sure Justice Clarence Thomas already noticed that and is just waiting for the right lawsuit to come the Court’s way.
While they are at it, the justices might look at whether suppressors and some other items on the NFA’s list should get another look as well. “The right of the people to keep and bear arms shall not be infringed” is the standard, let’s get back to that.