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Sorry ATF, You Don’t Make the Rules

Journal by Runaway1956

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!

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  • (Score: 1) by khallow on Thursday March 30, @09:54PM (11 children)

    by khallow (3766) Subscriber Badge on Thursday March 30, @09:54PM (#1298988) Journal

    The definition of "Waters of the US" is in the Code of Federal REGULATIONS (CFR)

    And? Let us look at the very first sentence:

    This section defines the term “waters of the United States” as it applies to the jurisdictional limits of the authority of the Corps of Engineers under the Clean Water Act.

    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:

    Wetlands adjacent to the following waters:

    or disqualifying features:

    Swales and erosional features (e.g., gullies, small washes) characterized by low volume, infrequent, or short duration flow.

    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:

    A swale is a shady spot, or a sunken or marshy place.

  • (Score: 2) by DeathMonkey on Thursday March 30, @10:16PM (4 children)

    by DeathMonkey (1380) on Thursday March 30, @10:16PM (#1298991) Journal

    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: 0) by Anonymous Coward on Thursday March 30, @10:23PM (5 children)

    by Anonymous Coward on Thursday March 30, @10:23PM (#1298994)

    My take is that the pools and mildly marshy land are "swales" [wikipedia.org] which are a disqualifying feature:

    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)

      by khallow (3766) Subscriber Badge on Thursday March 30, @10:27PM (#1298997) Journal
      Indeed. It's quite interesting that there's an explicit exception for the very feature on the Sacketts' property that was used to invoke the Clean Water Act.

      • (Score: 0) by Anonymous Coward on Friday March 31, @06:06PM (3 children)

        by Anonymous Coward on Friday March 31, @06:06PM (#1299224)

        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)

          by khallow (3766) Subscriber Badge on Friday March 31, @07:27PM (#1299239) Journal

          Sacketts wanted to fill in wetlands on the lake shore, got told no.

          From your link:

          Michael and Chantell Sackett, who ran an excavation company, sought to develop property a few hundred feet from Priest Lake, a popular vacation site in the Idaho Panhandle, with plans to build a home there. To prepare the lot for construction, the Sacketts began to fill it with gravel. In 2007, the EPA halted the work after determining that the Sacketts’ lot contained a federally protected wetland. Under the authority granted to it by the Clean Water Act, the agency ordered the couple to remove the gravel and cease any further construction. The Sacketts sued in 2008, and the case wound its way through the federal court system for the next 14 years. Now, before the Supreme Court, their lawyers will argue, among other things, that the wetland the Sacketts filled is not, jurisdictionally speaking, a “water of the United States,” and thus not subject to EPA regulation.

          So right away, we get a bit of divergence from the narrative. The alleged wetlands were not on the lake shore!

          For Devine, the answer is clear—so clear that he and his colleagues at NRDC and the Southern Environmental Law Center felt compelled to file a friend-of-the-court brief on the matter, in support of the EPA, that was entered into the court’s docket earlier this year. In that document, Devine says, more than 100 conservation and community organizations argue that “based on the history of the Clean Water Act, and on prior Supreme Court cases, the law—at the very least—protects the kinds of things found on the Sacketts’ property.” Not only is the wetland in question spitting distance from a huge lake that’s also a popular recreational spot, but this particular wetland is also part of a larger complex of wetlands through which water flows, underground, to the lake. And like nearly all other wetlands, it provides all kinds of water purification, water regulation, and wildlife habitat. “The law should protect these wetlands that, the science shows, have such an important effect on downstream waters,” Devine says.

          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)

            by Anonymous Coward on Tuesday April 04, @01:55PM (#1299707)

            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

              by khallow (3766) Subscriber Badge on Tuesday April 04, @09:58PM (#1299791) Journal

              If you're too thick to understand a few hundred feet is still lajeshore property

              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.