ATF Proposed Rule to Make Pistols Registered Short Barreled Rifles

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U.S.A.-(AmmoLand.com)- On 7 June, 2021, the Attorney General signed a “proposed rule” about the regulation of arm braces for pistols. The ATF has put the “proposed rule” on its website.

The “proposed rule” can be seen as a trial balloon. It has no legal authority, as it has not been officially published in the Federal Register. Once officially published, the public can make comments for 90 days once the proposed rule has been published.

Significantly, the Attorney General, Merrick Garland, signed this trial balloon, and not the acting head of the ATF.

The proposed rule is 71 pages of details only a bureaucrat would love.

The document arbitrarily states short-barreled rifles and shotguns are “dangerous and unusual”. Of course, all weapons are dangerous, otherwise, they would not be weapons. But all weapons are not unusual.

Banning short-barreled rifles and shotguns was not the intent of the law in 1934. The intent was to regulate “gangster weapons”.

Pistols were seen as subject to abuse. Sawed-off shotguns were seen as used by gangsters. Sawed-off rifles were added, virtually as an afterthought. This is why the overall length of 26 inches was included.

It makes no sense to consider short-barreled rifles as “dangerous and unusual” but to have pistols as constitutionally protected.  The NRA lobbied congress to remove pistols from the law, which was done. Short barreled shotguns and rifles were left in as booby prizes for the Franklin Delano Roosevelt administration.

“Dangerous and unusual” might have applied to pistols cut down from rifles and shotguns with a vice and a hacksaw. It did not apply to pistols that were equipped with shoulder stocks, which were common.

Pistols with shoulder stocks were ruled to be short-barreled rifles by the ATF in 1961. The rule was codified into law in 1968. There is no indication they were considered a criminal problem before that.  Many pistols with shoulder stocks have been classified as curios and relics, not dangerous and unusual, at all. This is reasonable. Adding a shoulder stock to a pistol makes it less concealable, not more.

No firearm of over 26 inches in length should fit into these categories.  In the missive, the ATF claims there have been three million stabilizing braces sold,  They are not unusual, and should be removed from the NFA. From the ATF.gov page 10:

It is estimated that manufacturers of stabilizing braces have sold 3 million stabilizing braces since 2013. ATF has observed that the development and production of rifled barrel weapons with “stabilizing braces” has become more prevalent in the firearms industry and that, consequently, requests for classifications for this kind of firearm design have also increased.

The Supreme Court, with the Caetano decision, found stun guns, with only 200,000 units in the United States, were in common use, and therefore protected under the Second Amendment. There are over 460 thousand short-barreled rifles registered under the NFA. It is hard to see them as “unusual” under the Caetano decision. There are over 158 thousand short-barreled shotguns registered under the National Firearms Act  (NFA), making their description as “unusual” problematic.

The proposed rule changes simple, easily understood criteria into complicated, bureaucratic regulation difficult for any but career bureaucrats to understand.

On page 18, the ATF compares an unloaded 1911 pistol with a loaded Glock, for no other purpose than to make the weights similar. No logic is involved.

Weapon Weight. Weapon weight is a key prerequisite in determining whether a “stabilizing brace” is appropriately used on a weapon. A traditional unloaded 1911-type pistol weighs approximately 39 ounces. Similarly, the polymer Glock 17 weighs 39 ounces when fully loaded. 

On page 19, the ATF applies Goldilocks logic:

Firearms with an overall length of less than 12 inches are considered too short to indicate any need for a “stabilizing brace.” Conversely, firearms exceeding 26 inches in overall length are impractical and inaccurate to fire one handed, even with a “stabilizing brace,” due to imbalance of the weapon.

Only the pistols which fit the “just right” category of over 12 inches and under 26 inches long, without stabilizing braces, are “just right” to have very limited stabilizing braces.

Options given by the ATF for current owners of pistols with stabilizing braces, after they apply the maze of additional criteria to determine if they might be classified as short-barreled rifles, are shown on pages 43-44. There are five. None of them are appealing. From the missive:

  1. Permanently remove or alter the “stabilizing brace” such that it cannot be reattached, thus converting the firearm back to its original pistol configuration (as long as it was originally configured without a stock and as a pistol) and thereby removing it from regulation as a “firearm” under the NFA. Exercising this option would mean the pistol would no longer be “equipped with” the stabilizing brace within the meaning of the proposed rule.
  2. Remove the short barrel and attach a 16-inch or longer barrel to the firearm thus removing it from the provisions of the NFA.
  3. Destroy the firearm. ATF will publish information regarding proper destruction on its website, www.atf.gov.
  4. Turn the firearm into your local ATF office.
  5. Complete and submit an Application to Make and Register a Firearm, ATF Form 1 (“Form 1”). As part of the submission, the $200 tax payment is required with the application. Pursuant to 27 CFR 479.102, the name, city, and state of the maker of the firearm must be properly marked on the firearm. All other markings, placed by the original manufacturer, should be adopted. Proof of submission of Form 1 should be maintained by all possessors. Documentation establishing submission of Form 1 includes, but is not limited to, eForm submission acknowledgment, proof of payment, or copy of Form 1 submission with postmark documentation.

Costs and benefits are covered on pages 47-48. There are significant costs. The “benefits” are insignificant.

Annualized costs of about 115 million dollars a year are estimated, over 10 years, or over a billion dollars total.

The alternative of allowing the current owners to register their existing firearms as short-barreled rifles, without paying the $200 tax, was rejected on page 55, though no good reason is given.

Alternative 5—Forgiveness of the NFA Tax. This alternative would allow individuals and entities that currently have firearms with attached “stabilizing braces” to apply and register firearms under the NFA without paying the $200 making tax. In this scenario, the societal costs would be the same except there would be no transfer payment. Similar to the proposed rule, the bulk of this cost would be the foregone future revenue and the loss in property for individuals not applying under the NFA.30 This scenario was rejected because “stabilizing braces” are not serialized and an individual or entity could merely register all firearms possessed with the intent of later obtaining a “stabilizing brace.” Further, although the “brace” is used on a particular weapon, an individual might register all pistols as SBRs and then attempt to utilize other stocks on these firearms.

So? Where is the societal “cost” here? More pistols would be registered in the ATF registry as short-barreled rifles. Where is the harm, or “cost”? We are given a hint of what ATF might be trying to put forward as a cost.

From page 59:

This proposed rule would prevent persons from circumventing the NFA by using arm braces as stocks on “short-barreled rifles”. If persons can circumvent the NFA by effectively making unregistered “short-barreled rifles” by using an accessory such as a “stabilizing brace,” these weapons can continue to proliferate and could pose an increased public safety problem given that they are easily concealable.

Putting a stabilizing brace on a pistol makes them less concealable, not more concealable. It may make them more accurate, which would be a benefit, not a cost.

The original law was aimed at people making rifles and shotguns more concealable when they attempted to create awkward, pistol-like weapons.

What ATF is doing is exactly the opposite. They are proposing millions of awkward pistols be made more concealable by forcing the owners to take off the pistol braces.

The ATF will have likely overstepped its authority if it officially proposes such a rule change and implements it.  A very similar situation, with the  ATF rule on bump stocks, has already been deemed illegal in the Sixth Circuit. That rule is still under litigation.

The proper thing would be to eliminate the National Firearms Act altogether. Such an effort is unlikely to succeed, politically. A logical alternative would be to change the law so modern firearms of 26 inches or more are regulated as long guns, while firearms of less than 26 inches are regulated as handguns.

Such a change would be consistent and easily followed. The current categories of handguns, long guns, short-barreled rifles, short-barreled shotguns, and “firearms” make no sense at all. Two categories “long guns” and “handguns” would be easily understood, measured, and regulated.

If and when the ATF actually publishes a rule, such as proposed, in the Federal Register, AmmoLand will let its readers know, so proper comments can be made.


About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.

Dean Weingarten

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APG member
APG member
4 months ago

Ruger Super Redhawk 58oz, S&W Model 460 78 oz, Cobray M-10 6.26 Lbs. Modern American infantry carry “SBRs” by ATF definitions. Ignorant politicians will be bamboozled by their “technical specifications” and walk the line back further. That we suffer SBR restrictions in spite of 2A is BEYOND INSANE. Anyone in possession of a Thompson: Contender/Encore? In seconds it can go any way you want, defies classification, kinda transgender….

Last edited 4 months ago by APG member
MarkE
MarkE
4 months ago

IF the $200 tax stamp makes it an SBR, is that the end to it? Is the NFA paperwork “instant approval” for current owners without the months-long AFT delays for real SBRs and suppressors? Does it remove the “fired from shoulder” question? Can you now add a collapsible or hinge stock? Does that mean vertical hand grips can be added to it? In other words, does the “SBR” determination for the pistol make it the same, for practice and purpose, as my Daniel Defense MK18 SBR? Would the SBR designation kick in the NFA laws for disposal (sale, gifting, pawning,… Read more »

Finnky
Finnky
4 months ago
Reply to  MarkE

Yes and No. Don’t know about wait, I expect they will want you to turnover your firearm to a SOT-FFL to hold until ATF approval comes through. Overloaded as they have historically been, I cannot imagine they will take years to catch up with backlog – so far longer than current wait. If you are making an SBR and turn in form 1 (?) – can you acquire parts without approval or is it presumptive possession as it would be if you had not turned in the form? If that is OK – they may just say you can keep… Read more »

MarkE
MarkE
4 months ago
Reply to  Finnky

The questions abound, but they are critical to just what is happening here – nothing good can come of this, but the degree of bad is unknown. If you have to turn in your pistol and wait for AFT approval as an SBR, then you know the outcome of that scam – this is thinly veiled confiscation as you can bet the approvals will never come (but, eventually, a $200 Walmart gift card, as part of a compensatory mandatory “buyback”, will). Few individuals who don’t own NFA items understand the restrictions on those NFA items (registration/trusts, sale, gifting, travel, etc.)… Read more »

Mystic Wolf
Mystic Wolf
4 months ago

Well what do you expect from the satan worshipping DEMONcrats in this admin, they are going to do everything they can to take our weapons from us, even if they have to break the law to do it, they are going to use every underhanded thing they can twist to get what they want! A totally disarmed country just like Europe or Australia or any other disarmed country they can think of to try to prove a point. The DEMONcrats have always hated the level of freedoms we have, they have always lived communism and that way of life. In… Read more »

Arizona
Arizona
4 months ago
Reply to  Mystic Wolf

They have passed 23,000 infringing gun laws, and none of them have served their supposed purpose: to eliminate or reduce crime. Someone who is willing to murder is not going to be stopped by a gun free zone or a law banning a magazine or style of firearm. All gun laws are infringements. They need to simply stick to enforcing the laws on barred activities, like murder, theft, rape, rather than possession of a tool. We know the stated purpose is a lie. They really want to disarm the nation. We need to reclaim Our Rights, and abolish all gun… Read more »

musicman44mag
musicman44mag
4 months ago

I think this information is important to share and gives a really good indication of where concealed carry and the constitution really stands.

We should not be facing more gun control if this is how the majority of America feels.

Zogby Analytics – The Zogby Poll®: Should Second Amendment to the Constitution, which is the right to bear arms, should also include the right to conceal and carry a gun?

Arizona
Arizona
4 months ago
Reply to  musicman44mag

More than 40% of households have a firearm. The Left is playing with fire, and may intentionally be trying to kick off a hot revolution. Making gun owners felons isn’t very bright. When you back someone into a corner with nothing to lose, their incentive to fight only increases.

musicman44mag
musicman44mag
4 months ago
Reply to  Arizona

If you back a animal into a corner and kick it eventually it gets tired of the abuse and it realizes the only way possible to stop the threat is to either fight and take a chance on dying or continue being abused and possibly die anyway. It’s no different with women that are abused too. They either leave, fight back and leave or they get killed or almost killed because they don’t do either. The left has been pushing for laws to circumvent the 2nd amendment for too long and they are abusing their power. Their actions are the… Read more »

Finnky
Finnky
4 months ago
Reply to  musicman44mag

I have long been saying that certain members of democrat party should be charged for inciting insurrection. One does not need to lead from the front to have driven others to revolution. From anti-texans in Texas (o’rourke & shiela jackson lee) to harris – they have been trying to inspire violent revolution.

Arizona
Arizona
4 months ago
Reply to  Finnky

They certainly are trying to incite us. And they should be charged for that and more: insider trading, perjury, violating oath of office, general malfeasance and douchbaggery, etc.

xtphreak
xtphreak
4 months ago

“…The current categories of handguns, long guns, short-barreled rifles, short-barreled shotguns, and “firearms” make no sense at all. Two categories “long guns” and “handguns” would be easily understood, measured, and regulated. …”

I submit that changing the definitions in the law is NOT a BATFE regulatory power.

Such changes require a change to the underlying law)(s) by Congress.

Neanderthal75
Neanderthal75
4 months ago
Reply to  xtphreak

I agree with you, which means that the new proposed rule against braces falls into the same category: the changes must be put through Congress rather than the Jack booted thug bureaucrats of the ATF.

Cheers from the oil patch in Central Wyoming

musicman44mag
musicman44mag
4 months ago
Reply to  xtphreak

I agree and what I find fascinating is that the government seems to think that changing the rules is going to effect criminals. NOT!!

We all know the bottom line is to discourage us from owning AR pistols and more importantly it is a new source of revenue. It’s all about the bucks and control The true reality is that we are the 1 percent that Joe Kamalatoe obummer obiden is really referencing when he says he is going to raise taxes, not the rich. Demonrats are the rich, why would the want to piss off their big donators.

Cruiser
Cruiser
4 months ago

All this sideshow talk about barrel length and pistol braces is just that BS.
Instead of talk about taking away guns for protection from the law abiding citizens, maybe we should be talking about the response time of Police Departments across the country. Seems that is more important than who should have a gun.

Mystic Wolf
Mystic Wolf
4 months ago
Reply to  Cruiser

Remember they want to get rid of the police, all the police. Also the DEMONcrats have and always will protect their criminal base.

Boz
Boz
4 months ago

What is the modern day equivalent of tarring and feathering? Asking for a friend.

Mystic Wolf
Mystic Wolf
4 months ago
Reply to  Boz

The as before tarrington and feathering, same as always.

DIYinSTL
DIYinSTL
4 months ago

Adding complexity to a regulation is analogous to holding tighter onto a blob of mercury. There are a lot of brilliant engineers in this world and to quote Colin Chapman “Rules are for the obedience of fools and interpretations of smart men.” Legistlatively the simplest method would be to remove SBRs from the NFA. I hate to say that Dean’s solution needs more complexity but what about a firearm shorter than 26″ with the stock retracted/folded/removed and longer than 26″ when extended/unfolded/attached? Breakdown firearms (e.g. the AR-7) could be sold as two barrel sets that would be both. Even the… Read more »

Hazcat
Hazcat
4 months ago

The ‘points’ list the ATF made up means nothing and is just a bait and switch. They have a catch all phrase that allows them to just say it is an SBR even if it passes the ‘points’ test. https://youtu.be/GoWstE9V-JY?t=104

APG member
APG member
4 months ago

Legislators mesmerize you with absurd “re classifications”, infringing on your rights making you mad. Withdraw your support of this broken system.

GomeznSA
GomeznSA
4 months ago
Reply to  APG member

APG – it is NOT “legislators” that are trying to mesmerize us – it is a bunch of UNELECTED bureaucrats who are trying to force ‘regulations’ on us. While ‘conveniently’ ignoring minor issues such as Ex Post Facto laws. Nearly all of what most folks think of as ‘laws’ are actually regulations (ever looked at the Code of Federal Regulations?) – which in far too many instances end up having the ‘force’ of real laws enacted by CONgress.

RoyD
RoyD
4 months ago

Oh, ok.

Arizona
Arizona
4 months ago

My list of comments for the proposed rule keeps growing. Pages and pages of reasons why this proposal is unconstitutional, capricious, etc. They even admit their worksheet and point system is not determinative, and that they can deem a pistol an SBR even if it passes all their corrupt and arbitrary tests.

Eventually, even if passed this would be struck down by the courts, but we won’t be holding our breaths as we keep living life as we have been, refusing to comply with this nonsense.

RoyD
RoyD
4 months ago

“Two categories “long guns” and “handguns” would be easily understood, measured, and regulated.”

“Regulated.” Other than “regulating” the possession and or use of firearms by convicted felons or other mentally disabled persons, I don’t see the “need” for any regulation by the Gov’t.

Arizona
Arizona
4 months ago
Reply to  RoyD

The government has zero power to regulate firearms per the strongest words in the Bill of Rights: shall not be infringed. All gun control laws are unconstitutional, and are only operating under the color of law.

Last edited 4 months ago by Arizona
Arizona
Arizona
4 months ago
Reply to  RoyD

The Leftist Marxist America-haters have been working the long game, picking away at our rights, adding one infringement on top of another. I refuse to play, or to give any more ground. We all need to stand up and say “no more, not another step” and personally hold those responsible accountable.

RoyD
RoyD
4 months ago
Reply to  RoyD

My “generic” use of the word “felon” is due to having dealt with thousands of felons and reading many of their life stories and with no exceptions did I find an incarcerated “felon” that did not have violence worthy of being of a “felonious” nature being present in their past. But you go ahead and do you.

RoyD
RoyD
4 months ago
Reply to  RoyD

You appear to be having a problem differentiating between what I am and who I am. That’s alright, I am capable of dealing with the less than intelligent who think they are.

Finnky
Finnky
4 months ago
Reply to  RoyD

@RoyD – I would guess that the “incarcerated” part of your statement has a lot to do with your experience. Government has grown weary of housing and feeding all the felons they are creating. Non-violent felons, being punished for things which possibly should not be criminal, are given less restrictive punishment — or simply fined to pay for supporting those actual violent felons who are properly incarcerated. Government is served by taking human rights, particularly the right to own arms and the right to vote from political opposition. Government is served by seizing assets (including cash) from the disfavored. Government… Read more »

Last edited 4 months ago by Finnky
RoyD
RoyD
4 months ago
Reply to  Finnky

My words, almost always, are chosen and used for a reason. Every now and then I will cut loose and just be silly. But, not often.