A Texas-Backed Lawsuit Argues That the ATF's Pistol Brace Rule Is Arbitrary and Unconstitutional

Although the law did not change, regulators suddenly decided to criminalize unregistered possession of braced pistols.

Texas Attorney General Ken Paxton and Gun Owners of America (GOA) yesterday filed a federal lawsuit challenging the Biden administration's ban on unregistered possession of pistols equipped with stabilizing braces, which took effect on January 31. The lawsuit, which was filed in the U.S. District Court for the Southern District of Texas, argues that the ban is arbitrary and capricious, contrary to law, and inconsistent with the Second Amendment.

Like the Trump administration's ban on bump stocks, the pistol brace rule is based on an implausible reinterpretation of federal law that contradicted the position that federal regulators had taken for years. It therefore raises some of the same issues that persuaded the U.S. Court of Appeals for the 5th Circuit (which includes Texas) to rule that the bump stock ban violated the Administrative Procedure Act. At bottom, the question is whether administrative agencies can criminalize possession of heretofore legal products without congressional authorization.

When President Joe Biden announced the new rule in April 2021, he said it would "make clear" that the addition of a stabilizing brace "effectively turns a pistol into a short-barreled rifle subject to the requirements of the National Firearms Act." That means anyone who owns a pistol with a stabilizing brace has to register it with the federal government. GOA warned that the new policy was "certain to result in the confiscation, destruction or coerced registration of millions of pistol AR-15s and other legally purchased pistols."

Do such pistols actually qualify as short-barreled rifles under the National Firearms Act (NFA)? The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has repeatedly said they do not.

The NFA defines a rifle as "a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder." In 2017, the ATF reaffirmed that "stabilizing braces are perfectly legal accessories for large handguns or pistols," although an accessory "employed as a shoulder stock" would make any firearm with a barrel less than 16 inches long "an unregistered NFA firearm."

Biden told the ATF to reverse that position, meaning that any stabilizing brace would qualify as a shoulder stock, even if the pistol to which it is attached is not "intended to be fired from the shoulder." Like the Trump administration's claim that rifles equipped with bump stocks qualify as machine guns under the NFA, that about-face seems inconsistent with the statutory definition. "The purported 'interpretation' that ATF has offered of the statute in the Final Rule," the lawsuit says, "is incomprehensible, arbitrary, and capricious and certainly is not the 'best interpretation' of the law."

When the NFA was enacted in 1934, the $200 tax it imposed on transfers of the weapons it covered, which amounted to about $4,500 in current dollars, was meant to be prohibitive. The ATF has said the law's "underlying purpose was to curtail, if not prohibit, transactions in NFA firearms." Originally, those "NFA firearms" were meant to include pistols. The ban on short-barreled rifles was aimed at preventing people from circumventing the ban on pistols by cutting down long guns, making them easier to conceal.

"Although pistols were ultimately removed from the NFA's language before it was enacted, short-barreled rifles and weapons made from rifles were not removed and continue to be taxed," the lawsuit notes. "This makes absolutely no sense from the perspective of 'public safety' or common sense, as a person can lawfully possess, without NFA registration, both a handgun (short) and rifle (long) version of the same platform firearm (such as an AR-15 or AK-47), but cannot possess a 'short barreled rifle' (medium) version of the same platform."

Whether or not it makes sense, that was the rule Congress enacted. But now the ATF is saying pistols are covered by the NFA when they are equipped with stabilizing braces, even though it said the opposite for a decade. When the question first came up in 2012, the ATF said "the submitted 'brace,' when attached to a firearm, did 'not convert that weapon to be fired from the shoulder and would not alter the classification of a pistol or other firearm,' and therefore, 'such a firearm would not be subject to NFA controls.'"

Since then, the ATF has repeatedly approved similar designs. As recently as July 2018, the ATF said a brace "used as designed to assist shooters in stabilizing a handgun while shooting with a single hand…is not considered a shoulder stock and therefore may be attached to a handgun without making a NFA firearm." As a result of those classification decisions, the lawsuit notes, "millions of Americans already legally own pistols with stabilizing braces, purchased and manufactured in the years since they were invented and first approved by ATF in 2012."

The ATF's new rule makes those pistols illegal unless the owners go through the registration process, which involves submitting fingerprints, identifying information, and photographs of the owner and the firearm. If they do not comply with those requirements by May 31, their continued possession of pistols with stabilizing braces will be a felony punishable by a fine of up to $10,000 and/or up to 10 years in prison. The ATF's rule, the lawsuit notes, "subjects millions of American citizens to criminal penalties for the possession of firearms they lawfully purchased, often based on the express authorization of ATF."

The ATF waived the tax for previously owned guns that it now deems "short-barreled rifles." The agency said it was "appropriate to forbear this retroactive tax liability" in light of "public confusion" about the status of pistols equipped with braces. But that confusion, the lawsuit notes, is entirely due to the ATF's reversal of its longstanding position: "ATF has repeatedly and explicitly stated that various stabilizing braces do not turn firearms into the short-barreled firearms ATF now claims them to be."

Under the new rule, a pistol becomes a rifle when it is "equipped with an accessory component, or other rearward attachment (e.g., a 'stabilizing brace') that provides surface area that allows the weapon to be fired from the shoulder, provided other factors…indicate that the weapon is designed, made, and intended to be fired from the shoulder." The rule lists six "other factors," including the "weight or length" of the weapon, the "length of pull," "marketing and promotional materials," and "information demonstrating the likely use of the weapon."

The lawsuit argues that the new definition is a hopeless muddle, leaving gun owners to guess exactly how the ATF will weigh those "other factors." It notes that the ATF is "unwilling even to promise that AR-15 style pistols without braces (which have been around for decades) are not short-barreled rifles."

The rule "is designed from the ground up to be vague and incomprehensible, leaving gun owners with absolutely no way to conclusively determine if their firearms are unregistered short-barreled rifles," the plaintiffs say. "None of the purported factors in the regulation has any meaning, being entirely devoid of any measurable standard. That is not the rule of law. Americans are not required to draw inferences in order to deduce whether they are committing felony crimes, at risk of having their lives ruined if ATF draws a different, arbitrary conclusion." The rule's vagueness, the plaintiffs argue, violates the Fifth Amendment's guarantee of due process as well as the Administrative Procedure Act.

The lawsuit also argues that the ATF's redefinition of short-barreled rifles violates the Administrative Procedure Act because it is "arbitrary and capricious." Manufacturers and gun owners who relied on the ATF's guidance in determining how to comply with the law are suddenly confronting a new risk of felony charges, even though the law has not changed. That threat, the plaintiffs say, exceeds the authority that Congress gave the ATF.

The ATF "may not legislate through regulation in order to implement the perceived intent of Congress or purported congressional purpose behind federal gun control statutes," the lawsuit says. "Congress did not authorize ATF to, decades after the law was passed and at least a decade after the first stabilizing brace was permissively classified, reverse its longstanding policy, materially revise definitions, and alter the classification of millions of lawfully-purchased firearms to bring them under the NFA's control."

The NFA ostensibly was an exercise of the tax power, and registration supposedly was designed to facilitate the collection of revenue. Although the ATF claims it is exercising its authority to tax short-barreled rifles, it does not plan to collect taxes from current owners of braced pistols. Demanding registration without collecting taxes, the plaintiffs argue, removes the law's constitutional justification.

The lawsuit also argues that the ban on pistol braces violates the right to keep and bear arms. Since those products are "in common use" for "lawful purposes," the plaintiffs say, they are covered by the Second Amendment, which means the government has the burden of showing that the ban is "consistent with the Nation's historical tradition of firearm regulation." Since the government "cannot meet this burden," they argue, "this regulation of braced pistols is unconstitutional."

Even if pistols with braces qualified as "short-barreled rifles," the lawsuit says, that would not exclude them from the Second Amendment. "There is a broad historical tradition, contemporaneous with the founding era, of short-stocked pistols or short-barreled rifles in widespread existence," the lawsuit says, citing many examples. "Such firearms were never restricted with respect to who could possess them, and were never required to be registered until passage of the NFA."

The plaintiffs also argue that the ATF's registration requirements violate the Fifth Amendment's protection against self-incrimination. Notwithstanding its earlier advice to the contrary, the ATF now maintains that braced pistols have always been covered by the NFA. "ATF claims that someone who possesses a braced pistol is and has been in unlawful possession of an illegal [short-barreled rifle] but ATF will nonetheless allow the individual to remain in possession of their illegal [short-barreled rifle], provided the possessor provides ATF with their identifying information, along with identifying information for the firearm (i.e., evidence of the alleged crime). ATF claims to allow this through an exercise of its 'enforcement discretion.'"

But what about the 24 states that independently prohibit possession of short-barreled rifles unless they have been registered with the federal government? If gun owners who live in those states comply with the ATF's new registration requirements, they will be providing evidence that they had previously violated those laws. The lawsuit notes that registration information will be shared with state authorities, "who could then use it to prosecute the registrant."

This daunting and perplexing situation is the sort of thing that happens when the executive branch invents crimes in the guise of enforcing the law. Americans who followed the rules as the government explained them are transformed into felons by administrative fiat.