As expected, the Biden administration released proposed new rules for pistol braces and model legislation for "red flag" laws that make it easier to confiscate privately owned firearms. Also as expected, the proposals are ludicrous. On the one hand, they are pointless and nitpicky rules that are ultimately unenforceable, and on the other hand they are dangerous end-runs around due process that threaten fundamental rights. Taken together, they illustrate the unserious nature of gun regulations which are crafted more to appeal to political audiences than to achieve positive results.
The silliness inherent in this sort of rulemaking is apparent from the Department of Justice's announcement of "a notice of proposed rulemaking that makes clear that when individuals use accessories to convert pistols into short-barreled rifles, they must comply with the heightened regulations on those dangerous and easily concealable weapons."
For those new to this controversy, stabilizing braces were developed to help disabled veterans more accurately shoot pistols (usually those built around AR-15 receivers) one-handed. The "problem" is that many resemble shoulder stocks and can be used in that role. By no means does an attachment that lets a pistol be fired from the shoulder make it especially "dangerous and easily concealable." Instead, it makes it less concealable since it has a brace sticking off the back. Braces do render pistols more accurate, which could be interpreted as dangerous if you're upset by shooters hitting where they aim.
But a pistol that can be fired from the shoulder is arguably a short-barreled rifle under the National Firearms Act (NFA), and subject to special restrictions, taxes, and registration requirements that don't apply to regular pistols or regular rifles, but do apply to (among other weapons) rifles with barrels shorter than 16 inches. These regulations are not evidence that short-barreled rifles are particularly dangerous, but that, like many laws, the NFA is thoroughly idiotic.
Braces have been treated as legal devices for years but have recently been targeted by the sort of people who see advantage in pretending that a firearm with a buttstock and a short barrel is more "dangerous and easily concealable" than stock-less pistols and long-barreled rifles. In compliance with White House direction, proposed rules from the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) would impose new requirements to determine if braced pistols achieve Great Pumpkin-level sincerity, or are super-dangerous and concealable short-barreled rifles in disguise.
Among other tests, the rule would set the maximum length of a pistol at 26 inches (because 27 inches is super-dangerous and concealable). These tests add up to a four-point assessment, ranging from "1 point: Minor Indicator (the weapon could be fired from the shoulder)" to "4 points: Decisive Indicator (the weapon is designed and intended to be fired from the shoulder)" with four points the ultimate sign that a firearm crosses the line into very naughty territory indeed.
The ATF estimates that between 3 million and 7 million braces owned by at least 1.4 million individuals will be affected should the new rules be adopted and proposes four possible scenarios in response. Owners could: surrender firearms with attached braces to the ATF for disposal, convert firearms into long-barreled rifles, apply for NFA registration so that the supposedly "dangerous and easily concealable" firearms are taxed and registered, or remove or alter affected braces.
A fourth scenario, and probably the most popular, will be for owners to ignore the ATF rules, keep their braced pistols, and even continue to attach braces to pistols purchased in the future. This would certainly defy official intent but, given the arbitrary and shifting nature of the rules, it's difficult to imagine anybody feeling an obligation to comply beyond a desire to avoid legal trouble.
But foolish stabilizer brace rules affect mostly disabled shooters and fanciers of a particular type of firearm. Red flag laws affect potentially any gun owner by allowing for property seizures and confrontations with law enforcement without due process.
Red flag laws "make it easier for states to craft 'extreme risk protection orders' authorizing courts to temporarily bar people in crisis from accessing firearms," insists the Department of Justice. "By allowing family members or law enforcement to intervene and to petition for these orders before warning signs turn into tragedy, 'extreme risk protection orders' can save lives."
Maybe such orders "can save lives"—all sorts of restrictions on personal liberty theoretically "can save lives" if that's your only criteria. But the model legislation proposed by the Biden administration requires same-day issuance of orders that "prohibit the respondent from possessing, using, purchasing, manufacturing, or otherwise receiving a firearm" with a hearing to be held only after the fact. That certainly deprives those affected of their rights without due process of any sort before cops show up on their doorsteps to search the premises and confiscate property.
Respondents would be allowed to file a motion to terminate an order only once during the period that it is in effect, and "shall have the burden of proving, by the same standard of proof required for issuance of such an order, that he or she does not pose a" risk.
"[W]e are deeply concerned about its breadth, its impact on civil liberties, and the precedent it sets for the use of coercive measures against individuals not because they are alleged to have committed any crime, but because somebody believes they might, someday, commit one," the ACLU of Rhode Island objected in 2018 to legislation very similar to the Biden administration's model law.
California's red flag law, signed in 2019 by Gov. Gavin Newsom, "poses a significant threat to civil liberties" because it allowed people to seek seizure orders without giving gun owners an opportunity to object, that state's ACLU similarly protested.
Rhode Island's ACLU warns that red flag laws could be used to penalize people for "overblown political rhetoric" and others warn they can be wielded vindictively by personal enemies and by opponents of gun ownership. That danger is illustrated by the misuse of similar non-adversarial systems: Colorado's Safe2Tell tip system has been abused in exactly that way, with bogus reports of school threats sending police to innocent kids' homes.
"Intentionally making false reports is not a good use of school, law enforcement or Safe2Tell time," the system prominently warns in an acknowledgement that it has been weaponized by malicious users.
Red flag laws don't allow for anonymous tips, but they still put gun owners on the receiving end of property seizures and searches without an opportunity to contest complaints, whether legitimate, overblown, or ill-intentioned.
Unfortunately, this is the face of firearms regulation in 21st-century America. Rules range from absurd to appalling and are crafted to please gun-phobes without respect for civil liberties or basic logic. We should expect more such rule-making as officials have grown accustomed to using their power to reward friends and punish enemies.