By Kevin D. Williamson
Wednesday, January 08, 2025
Consider the saga of the forearm brace, a footlong bit of
plastic that might or might not have made you a federal felon, depending on how
the ATF is feeling on any given Wednesday morning. Set aside questions about
guns and violent crime and think about this as an issue of administrative
license being used as a substitute for law made by duly elected
lawmakers.
The first thing you need to know about forearm braces is
that they are … nonsense. I know I am going to hear from some disabled veteran
writing to tell me that forearm braces made it possible for him to shoot again
after suffering some terrible injury, and I am sure that is true. But forearm
braces really were never about forearm braces. They were about short-barreled
rifles (SBRs).
As described
earlier in the series, putting a shoulder stock on a handgun with a barrel
less than 16 inches long—notice the immediate descent into regulatory
minutiae—makes it a short-barreled rifle under the National Firearms Act, and
making or having or selling one without a special federal permission slip in
the form of an ATF-issued tax stamp is a felonious no-no. If you go into a gun
shop and look at these “handguns”—and they say “handgun” right there on the
side, to prevent any federally felonious misunderstanding—the thing you’ll
notice is that a lot of them don’t look like what you’re thinking of when you
think of a handgun. They look like AR-15s or other rifles with shoulder stocks
removed and short barrels. Because that is what they are. For example,
conventional handguns generally have a magazine well within the grip, but many
of these “handguns” have magazines in front of the trigger, as in the familiar
AR-pattern rifle and most other semiautomatic rifles as well as many
bolt-action rifles. The stock is gone, and you can’t put a new one on without a
tax stamp. But you can—or could—put a forearm brace on. And if that forearm
brace happened to be roughly in the shape of a folding rifle stock, and if it
happened to be just the right size and shape to use as a rifle stock—in that
case, then you’ve got your SBR in effect without having to go through the
rigamarole with the pile of paperwork and the tax stamp and the fingerprinting
and becoming a firearms manufacturer.
Of course, the forearm brace thing was nonsense, but it
was ATF-approved nonsense, at least for a long time. Federally licensed
firearms dealers are a conservative and risk-averse bunch, and they have to be:
Lose that license and you’ve lost your business. You can’t have a gun shop that
doesn’t sell guns. So FFLs asked ATF about the braces. Everybody probably kind
of rolled their eyes, but braces got the green light.
That lasted until December 2020. (Joe Biden had won the
election and Donald Trump was on his way out, but the executive power had not
officially changed over yet.) That was when ATF—very possibly anticipating that
the Biden administration would press it for more aggressive interpretations of
the law—issued a notice that it was going to use its rulemaking authority to
reclassify pistols with forearm braces as SBRs and, thus, as restricted items
under the NFA. And then ATF changed its mind and withdrew the rule. Once the
Biden administration was in place, Attorney General Merrick Garland signed rule
2021R-08, “Factoring
Criteria for Firearms with Attached ‘Stabilizing Braces,” which put
handguns equipped with forearm braces back on the NFA naughty list if those
handguns have “features inherent in shoulder-fired weapons.” What might those
features be? The list is mostly subjective evaluations of the weight and length
of the firearm as well as such ironclad empirical criteria as “information
demonstrating the likely use of the weapon in the general community.”
(I should mention here that I contacted ATF several times
over several months for comment on this essay, and the agency ignored those
inquiries.)
The U.S. District Court in the Northern District of Texas
(Amarillo) issued an injunction against the rule. The fight went up to the 5th
Circuit and back down to the district court, and, ultimately, the rule was
thrown out. The court
ruled that the ATF’s actions had been “arbitrary and capricious,” which, of
course, they were. As the opinion (edited lightly to remove legal citations,
etc.) puts it:
For close to a decade, the ATF
concluded that “attaching the brace to a firearm does not alter the
classification of the firearm or subject the firearm to NFA control.” The
ATF changed course on this position for the first time in 2023, when it issued
the Final Rule reversing the agency’s otherwise long-standing policy. “When an
agency changes course, as [the ATF] did here, it must ‘be cognizant that
longstanding policies may have engendered serious reliance interests that must
be taken into account.’”
“It would be arbitrary and
capricious to ignore such matters.” But this is exactly what Defendants did
when they inexplicably and fundamentally switched their position on stabilizing
braces without providing sufficient explanations and notice.
Under the Final Rule, the ATF
estimated about 99% of pistols with stabilizing braces would be reclassified as
NFA rifles. The ATF contemporaneously issued approximately sixty adjudications
pursuant to the Final Rule that reclassified different configurations of
firearms with stabilizing braces as NFA rifles. The ATF provided no
explanations for how the agency came to these classifications and there is no
“meaningful clarity about what constitutes an impermissible stabilizing brace.”
In fact, the Fifth Circuit “[could
not] find a single given example of a pistol with a stabilizing brace that
would constitute an NFA-exempt braced pistol.” Such “‘unexplained’ and
‘inconsistent’ positions” are arbitrary and capricious.
Even with the question notionally settled in favor of
permitting the sale of handguns with braces, there are many retailers who will
not sell those weapons. They are worried that the legal status of such firearms
will once again change—possibly in an arbitrary and capricious way—and a lot of
those retailers are small businesses that do not want to order $50,000 worth of
merchandise they are not sure they can sell.
Arbitrary and capricious, yes. But far from
unpredictable, and not without a sense of being politically directed. Directed
toward what and why isn’t always exactly clear: Nobody who knows the first
thing about firearms really understands why we are fighting about
short-barreled rifles. The short-barreled kind isn’t any more dangerous than
the long-barreled kind. If anything, short-barreled rifles are a little less
dangerous than their long-barreled counterparts, because bullets coming out of
shorter barrels generally move a bit more slowly than those coming out of
longer barrels (the physics here gets a little complicated, and sometimes it
doesn’t make very much difference, but it is generally true) and hence are
carrying less energy, and short-barreled rifles are a little more difficult to
shoot accurately than are longer-barreled rifles. (Do you know who is happy
that long-barreled, well-tuned, bolt-action rifles haven’t become a fetish
object the way more compact AR-style rifles have? Donald Trump.) But that gets
into a whole other consideration that we’ll get into later: The most powerful
firearms in private hands in the United States are—by far—relatively common
hunting rifles and big-game rifles that hardly ever even enter the gun-control
conversation. Supposedly, the case for treating SBRs as a special dangerous
class of weapons has to do with concealability, which is pretty silly:
Criminals do care about concealability, which is why the overwhelming majority
of criminal gun use in the United States involves ordinary handguns. Yes, a
rifle with a 12-inch barrel is easier to conceal than the same rifle with a
16-inch barrel, but neither is as easy to stuff into the glovebox or down your
pants as an old-fashioned pistol.
But there is a kind of mirroring effect at work: The
regulators fetishize what the gun nuts fetishize, and the gun nuts want what
the regulators don’t want them to want. And that’s really the story with SBRs,
which are used in violent crimes only vanishingly rarely. And thus did millions
of law-abiding Americans became felons—or had to scramble to avoid becoming
felons—without anybody having passed a law. When libertarian types complain
about the unpredictable convulsions of the administrative state, that is what
they are talking about. Arbitrary and capricious, sure.
But also vindictive.
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