ATF Proposed Rule to Make Pistols Registered Short Barreled Rifles

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.

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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.