Comment on ATF’s Proposed Rule 2021R-08 “Factoring Criteria for Firearms With Attached ‘Stabilizing Braces’”

Quick preface: Below I’ve pasted the entirety of my comment on the ATF’s new proposed rule regarding pistol braces/brace-equipped pistols. This is one of the worst measures I have seen the ATF propose — and that’s saying something. In short, this rule would turn many thousands — possibly millions — of peaceable, ordinary Americans into felons. It’s bad and you should be bothered — even if you don’t care about guns or gun rights, this kind of arbitrary federal rulemaking (which I’ve previously referred to as “felony by fiat”) should disturb you. You can submit your own comment here, and it certainly need not be as long as mine. Just a few sentences can make a difference! I had a lot to say, but I also left a great deal unsaid, and I hope other folks will make their voices heard as well.

Docket No. ATF 2021R-08

AG Order №5070–2021

To whom it may concern,

As a certified firearms instructor and firearms policy researcher, I wish to offer my comments on ATF proposed rule 2021R-08, “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces.’”

In my considered judgment, the proposed rule is unnecessary, incoherent, and unjust. In summary form, the essential problems of the rule are:

1. The proposed rule does not adequately account for the fact that pistols equipped with stabilizing braces (“braced pistols”) are in “common use for lawful purposes” and are neither unusual nor unusually dangerous.

2. To the limited extent that braced pistols are used for criminal purposes, the proposed rule offers no remedy. Instead, it burdens conscientious and peaceable gun owners exclusively.

3. While the proposed rule claims to provide clarity and objectivity, it actually compounds years of unclear and contradictory ATF guidance regarding stabilizing braces and braced pistols.

4. The criteria by which the ATF would determine a braced pistol to be a short-barreled rifle are arbitrary and defective.

5. The proposed rule is inconsiderate of and abusive toward persons who, on the basis of and fully consistent with previously-issued ATF guidance, lawfully manufactured, purchased, and/or currently possess braced pistols.

The following numbered sections will address the points above in turn.

  1. Braced pistols are in common use for lawful purposes and pose no special public safety concern.

In District of Columbia v. Heller, the Supreme Court recognized an individual’s right to own such weapons as are in “common use for lawful purposes.” Braced pistols clearly fit that description. Proposed rule 2021R-08 itself acknowledges that “manufacturers of stabilizing braces have sold 3 million stabilizing braces since 2013.” The Congressional Research Service offers a much higher estimate of 10–40 million braces in circulation. Since braces are useless when not attached to a pistol, it is safe to assume that there are certainly millions — perhaps tens of millions — braced pistols in the United States.

Surely those figures meet the threshold of “common use” for a consumer good. For perspective, the best-selling vehicle in America is the Ford F-Series pickup truck, and fewer than a million of them are sold each year.

Americans’ millions of braced pistols are overwhelmingly used for lawful purposes. The proposed rule explicitly mentions only two instances in which braced pistols were used in criminal shootings, and offers no further anecdotes, figures, or data to support the claim that braced pistols are especially dangerous or disproportionately used for criminal purposes.

The cited rationale by which braced pistols — and short-barreled rifles, for that matter — could hypothetically be especially dangerous is the fact that they are “concealable” (relative to full-size rifles, presumably). Given the legality of pistols and revolvers without braces and the fact that they are even more concealable, any “concealability” rationale for heightened scrutiny cannot be taken seriously.

Moreover, FBI data clearly show that criminals have favored handguns over other firearms — by an enormous margin — long before the advent of pistol braces. And, since the primary advantages of a handgun to a criminal are its portability and concealability, a braced pistol would generally be contraindicated for criminals’ purposes, since a brace diminishes both attributes.

2. The proposed rule does not actually address ostensible public safety concerns/criminality.

Even if braced pistols — wielded as if they were short-barreled rifles, as described in the proposed rule — did pose an exceptional public safety concern, is there any reason to believe that this rule would address that problem?

I addressed a similar question in a previous work:

Does restricting short-barreled firearms actually prevent criminals from acquiring them?

No, not at all. There are many ways of easily and effectively shortening an otherwise legal rifle or shotgun. For example, it takes no mechanical skill or tools to replace the upper receiver of a perfectly legal AR rifle with the upper receiver taken from a perfectly legal AR pistol, thereby creating a short-barreled rifle. Sure, it’s a felony to do so, but I think it’s safe to say anyone who’s willing to murder innocent people is not concerned about violating National Firearms Act statutes.

Aside from swapping components to create short-barreled firearms, longer barrels may simply be cut with commonly available tools: criminalizing the possession of “sawed-off shotguns” does nothing to complicate the simple act of lopping off a few inches of barrel with a saw.

And shortening a rifle isn’t the only way to create a short-barreled rifle: one could also add a stock to a pistol, which, legally speaking, would constitute the construction of a short-barreled rifle. For some combinations of pistols and stocks, this would also be an extremely easy task, requiring little or no mechanical ability. Configuring a firearm as such without the ATF’s approval would be a felony, but, again, it’s unlikely that murderers are interested in the ATF’s technical — and somewhat fluid — definitions of “short barreled rifle” or “any other weapon.”

The existing regulatory regime does nothing to prevent criminals from acquiring or making short-barreled firearms. It’s all for nothing: a burden upon and a liability to only those people who are interested in complying with the law, not the malicious actors who actually threaten public safety.

It is absurd to even speculate about the hypothetical danger of criminals “circumventing” the NFA by using braced pistols, as if criminals would concern themselves with strict adherence to the particulars of the National Firearms Act of 1934 as they arm themselves for murder.

If criminals want short-barreled rifles, there is nothing stopping them from making, assembling, or configuring short-barreled rifles out of legal and readily accessible components. “Circumvention” is not a salient issue here.

3. The proposed rule compounds the ambiguity and confusion created by past ATF guidance on brace-equipped pistols.

The proposed rule correctly recognizes that prior guidance on braced pistols has lacked clarity and consistency. Unfortunately, that problem is exacerbated by the proposed rule. Manufacturers, retailers, and users of pistol braces are left with even more ambiguity about how their braced pistols will be regarded by the ATF.

Consider Worksheet 4999, which, on the surface, appears to clearly lay out “objective” criteria and a scoring system by which a brace-equipped pistol would be determined to be either a legal pistol or an NFA-restricted short-barreled rifle.

However, the literal “small print” tells a different story. The ATF “reserves the right” to classify a brace-equipped pistol as a short-barreled rifle even if such a classification would otherwise contradict the worksheet’s scoring system.

In other words, the worksheet cannot be relied upon for any useful purpose whatsoever. By reserving the right to ignore the results of its own scoring system, the ATF renders that scoring system irrelevant. This is an utterly unhelpful sort of regulatory guidance.

There are also direct and clear contradictions between prior ATF guidance and the proposed rule. For example, the Worksheet 4999 guidelines are dismissive of the possibility of a “fin-type” brace being used as a brace (and not a shouldering device/stock) in the absence of a strap. Because a strapless fin-type brace ostensibly cannot be used as a brace, it accrues points in the Worksheet 4999 scoring. However, in this letter, the ATF itself describes precisely how such a brace, without a strap, can be used to stabilize a pistol.

Real people — gun owners, retailers, manufacturers — made decisions on the basis of that guidance, and it is unacceptable for the ATF to now threaten them with felonies in spite of full compliance with and conformity to ATF’s past proclamations.

4. There are numerous defects in the criteria used in Worksheet 4999.

Arguably, any discussion of Worksheet 4999’s scoring criteria is moot, since the ATF holds that it is not bound to respect the outcomes of the scoring anyway. Nonetheless, to further explain the dysfunctionality of the proposed rule, some of the defects of the criteria will be discussed here.

The minimum and maximum weight parameters of the “Prerequisites” section are arbitrary and lack due consideration for the diversity of shooters who might choose to use a braced pistol. The proposed rule regards braces as unnecessary — and therefore proscribed — for pistols weighing less than 64 ounces. This judgment fails to consider that shooters vary greatly in their stature, strength, age, health, and physical ability. It is unacceptable to craft policy with the assumption that all people have something like a “median” level of physical ability — mathematically speaking, half of all people have less than that. The 64 ounce minimum weight is not only arbitrary — it is ableist.

The maximum weight of 120 ounces is similarly problematic. The proposed rule claims that any braced pistol weighing more than 120 ounces is too heavy to be fired one-handed. That is demonstrably false: I recently recorded a video of myself shooting an unbraced rifle one-handed. That rifle weighs approximately 11lbs (176 ounces). If I can shoot an unbraced 11lb rifle one-handed, surely a braced pistol weighing much more than 120 ounces could readily be shot one-handed as well. Arbitrary rulemaking should be regarded as unacceptable in any case, but especially so when the application of that rule will have severe consequences for millions of Americans.

What is true for the weight parameters is also true for the length parameters: they are arbitrary and fail to account for the diversity of human sizes and abilities. The same problem arises yet again in a subsequent section of the worksheet where it is implied that the only utility of brace adjustability is to facilitate shouldering — this premise suggests that human arms are uniform in length, which is clearly false.

On the matter of measurement, also note that the worksheet stipulates that length measurements are to be taken with “non-operational accessories removed.” It is not entirely clear what is meant by the term “non-operational.” Undoubtedly, this ambiguity will lead to inconsistent and “incorrect” measurements.

This comment’s focus on Worksheet 4999’s weight and length parameters should not be taken as an indication that those are the only problems with the worksheet’s criteria — though they cannot all be addressed here, other problems abound. For example, the “Attachment Method” section assumes that gun owners will know what kind of buffer tube their AR pistols are equipped with. This is moderately technical information that many gun owners — especially casual gun owners who bought complete, brace-equipped pistols instead of assembling their own — have never had cause to know. These gun owners would face the risk of felony charges on account of the fact that they lack technical knowledge that was not previously important to have for any compliance-related purposes.

Many additional problems with the scoring can be identified. Nonetheless, the problems noted here should be more than sufficient to show that Worksheet 4999 is utterly defective and unworkable.

But let us not forget that Worksheet 4999 is meaningless anyway, since the ATF does not consider itself bound to respect the determinations of the worksheet’s scoring.

5. The proposed rule is disturbingly inconsiderate of its impact on the Americans who would be detrimentally affected by it.

Millions of peaceable Americans lawfully acquired and lawfully own stabilizing braces and braced pistols. The proposed rule is coldly indifferent about the prospect of turning thousands or millions of those Americans into unwitting felons. This sort of abusive regulatory action must be regarded as wholly unacceptable within a free and democratic republic.

NFA penalties are extremely severe, including up to a decade of prison time, massive fines, and the loss of rights that accompanies a felony conviction. It is outrageous to alter rules such that those penalties would threaten ordinary, peaceable Americans, many of whom will be unaware that any rule change affecting them has even taken place — they may become aware at the time that they are arrested.

Furthermore, it is entirely reasonable for brace-owning Americans to assume that they have done nothing illegal or noncompliant. Most gun owners who bought a firearm equipped with a brace even completed an ATF 4473 form for that firearm. They did everything “by the book,” hid nothing, and have every reason to believe that they were, are, and will continue to be in full compliance with the law so long as they commit no criminal acts. The proposed rule change would cruelly pull the proverbial rug out from under them by making them felons on account of their lawful acquisitions.

Even those Americans who are fully aware of the rule change would be put in the position of needing to figure out if the ATF has decided that they are felons. And for these Americans to make that determination, they will need to start by literally weighing and measuring their lawfully-purchased guns. As comically absurd as that sounds, it is precisely what would be required by Worksheet 4999. In reality, there is nothing comical about this — it would be a disturbing state of affairs to observe in an ostensibly free country.

The ATF’s “Options for Affected Persons” are paltry and unsatisfying. Broadly speaking, all of these options amount to uncompensated “takings,” in the legal sense of the term: individuals would lose the utility of their braced pistols through some combination of mandatory separation, destruction, and/or surrender of braces and/or pistols. Braces and firearms are not inexpensive items, and insofar as they function as personal protection tools, they have an especially valuable function within one’s household. Again, the ATF’s cold indifference toward those upon whom the rule would be enforced is evident here.

The Americans who would be made felons by this rule change have committed no crime. They would simply find themselves to be in possession of an item that was declared — outside of our democratic lawmaking process — to be contraband.

That is not a case of citizens violating the law. Rather, it is a matter of the law violating citizens — and that is an intolerable state of governance.

Conclusion

The ATF’s attempt to expand the operative definition of “short-barreled rifle” through proposed rule 2021R-08 is a mistake. The ATF would do well to recognize the inherent contradiction within the National Firearms Act: the law simultaneously proscribes concealable guns (SBRs, SBS, etc.) while it permits the smallest and most concealable guns (pistols and revolvers) of all. The NFA, until repealed or amended, will remain in tension with itself.

The ATF cannot fix that and should not try — that is a problem for Congress to resolve. It is not the ATF’s responsibility to reconcile the NFA’s contradictions through dubious and extralegal rulemaking. Moreover, any ATF enforcement efforts which threaten millions of ordinary Americans — who have chosen to exercise a constitutionally-guaranteed right — are equally unacceptable and beyond any just authority the agency could possibly claim.

As we approach the Fourth of July, let us remember that government exists to secure the rights of the people. State agencies must remain vigilant against the ever-present temptation to become an abuser of those rights.

Thank you for considering my comment.

Sincerely,

Mark Houser

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