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There were fireworks at a Congressional hearing covering a critical topic not just to the firearm industry and Second Amendment supporters, but to all Americans. It wasn’t entirely unexpected. The U.S. House Subcommittee on Crime and Federal Government Surveillance’s hearing titled, “ATF’s Assault on the Second Amendment: When is Enough Enough?” posed a simple question. And the question gets to the heart of whether or not the ATF makes the rules.
Sorry ATF, You Don’t Make the Rules
Who writes law in the United States? That begged other questions. Can government agencies go rogue and create sweeping regulations that turn law-abiding citizens into criminals? Or does law-making authority reside with the people through their duly elected representatives in Congress?The Background
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) promulgated a new Final Rule in January. This new rule has drastic implications for millions of existing law-abiding gun owners. The agency unilaterally decreed that stabilizing arm braces attached to pistols are now defined as short-barreled rifles (SBRs). As such they are subject to registration under the National Firearms Act (NFA).That means owners who already legally purchased the firearm accessory must register their purchase. Likewise, they must submit photos and fingerprints, pass an additional background check and alert local law enforcement that they possess one.
If they don’t, they risk facing felony charges and imprisonment. The Congressional Research Service estimates there could be upwards of 40 million braces in circulation today.
Alex Bosco testified about how we got here today. The former Marine invented the forearm stabilizing brace in 2012 to help disabled veterans more safely participate in recreational pistol shooting.
Pretty long read, so I'm sticking a spoiler tag here.
https://www.personaldefenseworld.com/2023/03/atf-rules/
“Since I began my business, I’ve made every effort to comply with all the rules and regulations set out by ATF. After submitting the original brace to ATF for review, ATF responded in writing stating that attaching a stabilizing brace – quote – would not alter the classification of a pistol or other firearm, and that – quote – such a firearm would not be subject to National Firearms Act controls,” Bosco explained.
He added ATF has “repeatedly held that various pistol brace designs did not convert a pistol to a short-barreled rifle.”
That all changed once ATF reclassified stabilizing arm brace-attached pistols as SBRs. This put Bosco’s livelihood, and millions of other law-abiding Americans, at serious risk.
Whose Authority?
Subcommittee Chairman Rep. Pat Fallon (R-Texas) asked the central question of who writes law for the United States.“Ever since Mr. Biden took office, his administration has actively sought to infringe on the Second Amendment and I’m deeply concerned about the ATF and their recent actions,” Rep. Fallon said. “This rule will effectively turn millions of law-abiding gun owners into criminals if they fail to comply even though Congress did not act. We didn’t pass any new criminal laws or penalties related to pistol stabilizing braces. We had unelected bureaucrats do it. That’s not the way this works.”
Rep. Chip Roy (R-Texas) echoed, adding that bureaucratic rulemaking is wrong under Republican and Democratic administrations.
“This should send shivers down the spine of all members under Article II,” Rep. Roy said. “And look, I don’t view this through the lens of being a Democratic administration. I didn’t like it when the Trump administration was doing stuff like this. Whether it was the bump stock ban – I didn’t like that either.”
Constitutionally Problematic
Heritage Foundation’s Amy Swearer agreed the ATF rulemaking is Constitutionally problematic.“Our Constitution is set up with a separation of powers. You have the Executive Branch, whose job it is to enforce the law and you have Congress who passes laws because Congress is held accountable to the people,” Swearer said. “No official at the ATF… is elected and held accountable through that process.”
The overreach by ATF may be rectified in due time if recent precedent plays out. The U.S. Court of Appeals for the Fifth Circuit overwhelmingly overruled the Trump administration’s ATF Final Rule. It said the rule overstepped its authority to classify bump stocks as “machineguns.”
In 2021, the U.S. Supreme Court overruled the Environmental Protection Agency (EPA) Clean Power Plan in West Virginia v. EPA because the agency overstepped its authority with similar rulemaking without clear congressional authorization.
The ATF stabilizing arm brace rule could be approaching a similar fate.
Know What You’re Talking About
Democratic lawmakers demonstrated they are uninformed about the arm brace accessory.Democratic lawmakers used terminology like “high-powered,” “increasingly lethal,” and “weapons of war.”
Rep. Sheila Jackson Lee (D-Texas) praised the ATF for usurping her congressional authority “to prevent…the misuse of stabilizing braces, which convert everyday firearms into killing machines.”
It was similar to when Rep. David Cicilline (D-R.I.) misidentified an arm brace, confusing it for a bump stock, during a previous debate.
Rep. Chuck Edwards (R-N.C), a Federal Firearms Licensee, asked Everytown for Gun Safety Senior Director for Policy Rob Wilcox about the accessory. “Will a pistol brace change the capacity of a firearm? Meaning the number of rounds?”
“No sir,” Wilcox responded.
“Will a pistol brace change the firing speed of a firearm?” Rep. Edwards continued.
“No sir.” Wilcox answered.
Rep. Edwards asked Bosco about the confusion.
“I think the problem is that a lot of people aren’t informed about what is and isn’t a pistol and what is and isn’t a rifle. It’s very nuanced,” Bosco replied. “A stabilizing brace is not a force multiplier.”
Gun Control Won’t Stop
The ATF pistol brace rule is yet another example of the Biden administration going beyond its authority to restrict the Second Amendment rights of law-abiding Americans. Gun control groups have grown frustrated that more hasn’t been done. However, they ignore the criminals who are the ones committing violent crimes.Manuel Oliver, whose son was murdered in the 2018 Parkland high school shooting, disrupted the committee hearing, was removed, and subsequently arrested. Oliver also disrupted and was removed from a White House ceremony when President Biden announced several gun control executive actions.
The actions by gun control groups, Democratic lawmakers shaming companies for not doing their gun control bidding and the ATF overreaching its authority on the pistol brace Final Rule are a pattern. It shows the goal is not to hold criminals accountable. It’s about controlling law-abiding Americans.
Story originally posted to NSSF.org.
This question has come up before, and it has never been firmly dealt with. The Environmental Protection Agency has assumed authorities that it does not have, in the past. The Transportation Department has acted unilaterally under questionable authorities. Ditto the Federal Communications Commission.
The heart of the issue here, is the question: Who makes law in this country? Constitutionally speaking, only Congress may enact a law, change a law, or repeal a law. The Executive Branch's one and only responsibility and authority, is to enforce the law that Congress passes.
Donald Trump can't make certain gun accessories legal, or illegal. Joe Biden can't make certain guns legal or illegal. The ATF can't make certain gun accessories legal or illegal. Only Congress has the authority to do that.
It's high time that Congress took notice, and reigned in all government agencies!
(Score: 2, Insightful) by khallow on Thursday March 30, @03:50AM (29 children)
Congress can't pass a law to relinquish [cornell.edu] its law-making authority. It's unconstitutional.
For example, what's the intelligible principle by which "stabilizing arm braces attached to pistols" become short barreled rifles when the ATF had previously determined they were not? What keeps some future administration from completely reversing this determination on a whim?
(Score: 3, Informative) by Anonymous Coward on Thursday March 30, @04:58AM (4 children)
As much as people like to talk about the nondelegation doctrine, the Supreme Court has only struck down a law using that doctrine twice. Ever. And the Administrative Procedure Act and Congressional Review Act cut much of those nondelegation arguments down even further as a side effect.
And the intelligible principle for their regulation is the Gun Control Act of 1968, specifically 18 U.S.C. 921 & 922 and the National Firearms Act of 1934, specifically 26 U.S.C. 5801, 5802, 5811, 5812, 5822, 5841, & 5845. It's all right there, including their reasoning of why it would fall under the definitions of "rifle," in black and white in the final rule. It even includes pretty pictures, in case the 98 pages has too many words.
(Score: 2, Informative) by khallow on Thursday March 30, @05:55AM
So in other words, it does happen. I notice that in a recent case, Gundy v. US [wikipedia.org] almost became number three in 2019.
Yea, right. I guess you missed the discussion of Cargill v. Garland [thetruthaboutguns.com] in Runaway's linked story which struck down a similar ATF decision on classifying bump stocks as machine guns. It will no doubt be appealed, but it's a very similar case decided on the same grounds.
So a Supreme Court that is willing to revisit their leniency on the delegation clause combined with a lower court already going there.
(Score: 2, Insightful) by Anonymous Coward on Thursday March 30, @08:11AM (2 children)
Those pictures tell the whole story, don’t they? I should play a game of “rifle or pistol” with them and my friends based on what the manufacturers labeled them. I bet I’ll get at least one accusation of changing the answer just to trip them up or showing the same weapon twice.
(Score: 0) by Anonymous Coward on Saturday April 01, @08:17AM (1 child)
I called it. Someone just accused me of mistakenly swapping the pistol and rifle on page 6494 (17 on the PDF).
(Score: -1, Troll) by Anonymous Coward on Thursday April 06, @01:14AM
Silly conservative ammosexuals! Wanting to have a AR-15 based SBR so they can play Russian Roulette!
(Score: 0) by Anonymous Coward on Thursday March 30, @05:44AM (4 children)
Lawsuits? Public disapproval? Storm the White House? Legislation (assuming you can get POTUS to sign it)?
(Score: 3, Insightful) by khallow on Thursday March 30, @05:58AM (3 children)
Notice that one is not like the others! The whole point here is that laws aren't something that should shift with the political wind. Do you really want to be in a situation where you have to make huge changes in your life and finances depending on who's in power and what they decide is illegal this year?
(Score: 3, Informative) by DeathMonkey on Thursday March 30, @05:10PM (2 children)
Ummm.....yes? The people who win the elections to the Legislative branch of government get to write the legislation....
(Score: 2, Insightful) by khallow on Thursday March 30, @05:32PM (1 child)
So right there, there's an acknowledgement that it's different. That plus the deliberate slowness of the legislation approach creates a much more stable and legal environment.
(Score: 1, Insightful) by Anonymous Coward on Friday March 31, @05:56PM
So you are saying Trump's supreme court licks should be disbarred and their decisions revoked? But you also argue that the situation you're complaining about creates a more stable legal environment?
I think you might be a ChatGPT bot.
(Score: 2) by DeathMonkey on Thursday March 30, @05:28PM (18 children)
I like how your first example says they absolutely CAN delegate their authority so long as they express the intent behind the delegation.
(Score: 2, Informative) by khallow on Thursday March 30, @05:33PM (17 children)
(Score: 3, Informative) by DeathMonkey on Thursday March 30, @05:40PM (16 children)
Zero new laws were created by the EPA w/r/t defining the Waters of the United States.
Zero new laws were created by the ATF w/r/t defining Short Barreled rifles.
The existing laws already grant those agencies the powers to define those things while promulgating regulation.
(Score: 1, Informative) by Anonymous Coward on Thursday March 30, @05:54PM
Facts don't really work for khallow. Can you check the Babylon Bee for a more conservative frenly approach?
(Score: 1) by khallow on Thursday March 30, @06:33PM (14 children)
Except that 1) the definition of the term is part of the law. By changing the definition just by itself, the EPA changes the law.
Same.
(Score: 3, Informative) by DeathMonkey on Thursday March 30, @06:55PM (13 children)
Wrong. You are simply, objectively, factually incorrect.
The definition of "Waters of the US" is in the Code of Federal REGULATIONS (CFR)
As in 33 CFR PART 328 - DEFINITION OF WATERS OF THE UNITED STATES [ecfr.gov]
(Score: 2) by DeathMonkey on Thursday March 30, @07:01PM
And for the ATF: 27 CFR Part 479.11 Meaning of terms [atf.gov]
(Score: 1) by khallow on Thursday March 30, @09:54PM (11 children)
And? Let us look at the very first sentence:
This definition as included in the above reference is authorized by an explicit law. It also dates from 1986. As an exercise perhaps you could explain how the Sackett's land fell under the purview of this definition? For example, should we consider the alleged pools of the Sackett property as wetlands or swales. Qualifying features:
or disqualifying features:
Remember the Sackett land was landlocked and not adjacent to the lake. My take is that the pools and mildly marshy land are "swales" [wikipedia.org] which are a disqualifying feature:
(Score: 2) by DeathMonkey on Thursday March 30, @10:16PM (4 children)
Correct, the Clean Water Act authorizes the EPA and the Army Corps of Engineers to define the term "Waters of the US" for use in the relevant regulations.
(Score: 1) by khallow on Thursday March 30, @10:23PM (3 children)
Which they did by 1986. It didn't authorize them to redefine the term later. That's how new law crept in.
(Score: 2) by DeathMonkey on Thursday March 30, @10:37PM (2 children)
It's happened about eleven times since the term was first used in 1972. [everycrsreport.com]
(Score: 1) by khallow on Thursday March 30, @11:45PM (1 child)
(Score: 0) by Anonymous Coward on Friday March 31, @05:58PM
Why?
(Score: 0) by Anonymous Coward on Thursday March 30, @10:23PM (5 children)
Khallow has ruled that the land in question is a "swale". Case closed! Thanks, Justice Khallow! (BTW, who exactly did you clerk for?)
(Score: 1) by khallow on Thursday March 30, @10:27PM (4 children)
(Score: 0) by Anonymous Coward on Friday March 31, @06:06PM (3 children)
For those interested
https://www.nrdc.org/stories/what-you-need-know-about-sackett-v-epa [nrdc.org]
Sacketts wanted to fill in wetlands on the lake shore, got told no. Once again khallow prefers making money over the long term health and safety of humanity. Article points out how after 2000 the government winds shifted to allow much more corporate rapung of the land and people.
(Score: 1) by khallow on Friday March 31, @07:27PM (2 children)
From your link:
So right away, we get a bit of divergence from the narrative. The alleged wetlands were not on the lake shore!
In other words, heeding these arguments would radically expand what is covered under the Clean Water Act. Now, it's not just anything that is near qualifying bodies of water and wetlands, but anything mucky that "flows" into such. There are ways to legally get this sort of protection: 1) change the wording of the Clean Water Act to reflect this alleged scientific understanding, or 2) buy the property outright and put it into conservationship so that the sort of construction doesn't happen. To bluster that there's a "science shows" is not such a legal approach. Science does not show what is legal and illegal.
It also ignores the onerous burden on a property owner who now has to keep up with whatever science decides to show this year. Spend a huge sum of money and hope (which probably means bribe someone) that the science doesn't show your construction plans are to be scuttled.
(Score: 0) by Anonymous Coward on Tuesday April 04, @01:55PM (1 child)
If you're too thick to understand a few hundred feet is still lajeshore property then best of luck to you with your reality optional approach to discussions.
(Score: 1) by khallow on Tuesday April 04, @09:58PM
In other words, you're redefining what lakeshore means. This sort of gimmick, redefining words on the fly to expand an argument or an abuse of power, is a powerful technique of the EPA overreach in the first place.