Regulatory Comment: “Objective Factors for Classifying Weapons with ‘Stabilizing Braces’”

What follows is my comment on the ATF’s recent and highly problematic notice. Nearly 50,000 comments have been submitted over the past few days. I encourage you to add your own, but please be thoughtful about what you write — explain what’s wrong with the proposed guidance. Don’t just rail against the NFA. I like doing that, too, but this isn’t the place for it.

Dear Acting Director Lombardo,

As a firearms policy researcher and certified firearms instructor, I wish to offer my thoughts on “Objective Factors for Classifying Weapons with ‘Stabilizing Braces’” (85 FR 82516, Docket No. 2020R-10).

The notice correctly recognizes that the “GCA and NFA generally regulate ‘firearms’ and not individual components and, as such, ATF does not classify unregulated components or accessories alone.” The notice also states that the “ATF must evaluate whether a particular firearm configured with a stabilizing brace bears the objective features of a firearm designed and intended to be fired from the shoulder, and thus subject to the NFA, on a case-by-case basis.”

The notice thus indicates the ATF’s intent to “holistically” consider the characteristics of a brace-equipped firearm to determine if it is in fact an NFA firearm (rather than a pistol). However, several of the characteristics by which the ATF seeks to make this determination do not actually and/or consistently convey information that illuminates whether or not the firearm is designed or intended to be fired from the shoulder.

If the ATF is making its determinations on the basis of factors which do not convey that information, then those determinations will be arbitrary, inconsistent, and legally perilous for peaceful and otherwise law-abiding Americans.

Type and Caliber

The notice states, without any further explanation, that a weapon’s “type” may be used in determining if the weapon is intended to be fired from the shoulder. Obviously, this is problematically vague and circular guidance. “Type” is a veritable catchall by which any number of design elements might be subjectively regarded as being characteristic of weapons fired from the shoulder. That is not an actionable guideline for manufacturers or consumers.

The notice also states that “(a) large caliber firearm that is impractical to fire with one hand because of recoil or other factors, even with an arm brace, is likely to be considered a rifle or shotgun.” However, a weapon’s caliber is largely irrelevant to determining whether or not it is designed or intended to be shouldered. Large-caliber cartridges with heavy recoil (such as .500 S&W, .50 AE, .454 Casull .460 S&W, and .44 Magnum) are very commonly used in handguns even without stabilizer braces. Conversely, very small and soft-recoiling calibers (such as .17 HMR and .22LR) are commonly used in firearms (rifles) that are in fact designed and intended to be fired from the shoulder.

Caliber size and recoil force do not intrinsically convey information about how a firearm is designed and intended to be held, and are therefore not pertinent to determining whether a firearm falls within the scope of the NFA.

Finally, it must be noted that colloquial terms like “pistol caliber” and “rifle caliber” do not have strict or technical definitions and are not tied to particular cartridge dimensions or ballistic parameters. Moreover, there is a very long history of chambering rifles in what are colloquially called “pistol calibers” and vice-versa. These terms are therefore not useful in making the sort of legal determinations at issue here.

Weight, Length, and Length of Pull

The notice states that “(a) firearm that is so heavy that it is impractical to fire or aim with one hand, or so long that it is difficult to balance the firearm to fire with one hand, is likely to be considered a rifle or shotgun.” The problem here is that “heavy” and “long,” in the absence of explicit numerical definitions, are relative to the strength and size of the shooter.

The notice is proposing a rule by which the same firearm could be either a pistol or an NFA firearm depending on physical attributes which vary from shooter to shooter, and also across time (as training, aging, injuries, etc. alter the shooter’s physical abilities).

Conceivably, a large brace-equipped weapon could be determined to be a pistol for a large, strong person, while the same weapon could be determined to be an NFA firearm (SBR) for a smaller, weaker person. And a shooter who once used a brace-equipped pistol comfortably in one hand could become a felon as he aged, lost the ability to use that pistol as such, and the classification of the weapon magically changed from “pistol” to “SBR” as the shooter’s strength diminished. This is obviously an extremely problematic rule.

Likewise for length of pull: a pistol brace of appropriate length to be used as such by a large man might be deemed to be of excessive length — and therefore, an SBR stock — in the hands of his petite wife. This is particularly true as optimal length of pull for a rifle varies not only from person to person, but also with clothing and other equipment choices.

The proposed rule creates situations in which a weapon is variously determined to be legal or felonious depending on who handles said weapon, when they do so, and under what particular circumstances. It is unjust for a rule to be constructed such that determinations of the weapon’s classification are so variable: this situation exposes innocent gun owners, through no fault of their own, to severe criminal liability.

Finally, without explicit, numerical length of pull guidelines, gun owners may unwittingly find themselves victimized by subjective and inconsistent determinations of what exactly constitutes a “stock-like” length of pull. Vague, subjective guidance does not help consumers and manufacturers to make legal decisions.

Conclusion

The guidance provided in “Objective Factors for Classifying Weapons with ‘Stabilizing Braces’” is unhelpful — and certainly not objective. The proposed criteria by which brace-equipped weapons may be determined to be NFA firearms are deeply flawed and collapse under scrutiny. These criteria are rife with subjectivity and carry tremendous potential to penalize innocent gun owners.

Revised criteria must better recognize that thousands of Americans acquired (or assembled) and have been using millions of brace-equipped firearms in a manner which they have justifiably understood to be perfectly legal. None of these people should have to fear becoming felons on account of entirely unreasonable changes in regulatory guidance.