How We Got Here: The ATF’s Unconstitutional Pistol Brace Ban By: TTAG Contributor

Abolish the ATF

By Brandon Williamson

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As you’ve no doubt heard, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has recently unilaterally declared virtually all AR and AK-style pistols with attached stabilizing braces to be short barreled rifles (SBRs). This change places these firearms under regulation by the National Firearms Act (NFA).

This is a significant change and a step backward for Second Amendment rights in our nation.

Because of this change, millions of Americans will soon technically be felons and staring at a potential 10-year prison sentence and fines of up to $250 thousand.

The ATF has declared a 120-day grace period in which they will allow owners to register these firearms with the ATF’s NFA division tax-free. Failure to register could result in serious criminal penalties for anyone caught with one. On the downside, it’s being reported that a denial will result in “enforcement action,” even if it’s an automatic denial, which happens when a NICS check takes longer than 88 days to complete.

How did we come to this point, and who gave the ATF the authority to redefine items of their own volition?

Back in 2020, former President Donald J. Trump, who was a registered Democrat from 2001-2009 and endorsed Hilary Clinton in the 2008 primaries, ordered the ATF to reclassify bump stocks as machine guns despite their not meeting the statutory definition of such a firearm.

According to 26 U.S.C. § 5845(b) a machine gun is “Any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot without manual reloading, by a single function of the trigger.”

A bump stock allows the stock to slide over a receiver extension during recoil to assist in resetting the trigger. It then slides back to the rear of the receiver extension during the strip, chambering, and locking sequence of firing. During the course of firing, the trigger goes through two distinct functions; releasing the hammer and resetting the hammer against the trigger sear.

If this were in fact fully automatic fire as you would get with a machine gun, an interrupter, also called an auto sear, would prevent the hammer from resetting during the firing sequence. By any measure, this precludes a bump stock from being considered a machine gun under U.S. law as written.

The ATF recently used this authority that Trump unconstitutionally bestowed on them to target forced reset triggers which operate using springs’ mechanical force from the firing components to force the trigger and trigger finger forward to allow the hammer to be reset. They followed this up with 2021r-08F, “Factoring Criteria for Firearms with Attached Stabilizing Braces.”

As previously mentioned, under this new rule, which Congress had no say in, the ATF has yet again changed the law to the detriment of the American people and our rights.

There are an estimated 30 to 50 million braces in civilian ownership in the U.S. The number of owners of braced firearms is harder to determine. There is speculation they are owned by between five and seven million individuals, but I’ve not found an actual source for that figure.

That makes the change unconstitutional on multiple fronts. First, Congress makes laws, not regulatory agencies. This is an issue being fought over in multiple Chevron Deference cases currently.

Second, 30 to 50 million units in the hands of five to seven million individuals is clearly well within the “common use” arena that the 2001 Heller decision referenced. And finally, there was no regulation such as these in 1791, making this an obvious violation of the recent Bruen ruling.

Recently, a number of Congressmen have rebuked the ATF for their actions. There has been a bill introduced to abolish the ATF and another to repeal the NFA. I don’t believe either of those bills will pass, though I wish they would.

The best and most realistic things we can do are to take a page from the cannabis activists’ handbook and nullify federal laws on a state level en masse. We should also make a concerted effort to only support candidates with a die-hard dedication to protecting our Second Amendment rights.

We should also chip away at the most vulnerable bits of the NFA. The SBR and silencer portions are the best targets. Silencers have a huge benefit for hearing safety, and the SBR provision has very strong constitutional arguments for why they should be removed from the NFA.

Brandon Williamson is a U.S. Army veteran and the Director of Social Media at Young Americans for Liberty. He lives in Wyoming.