Editor’s note: In addition to his work at The Dispatch, Kevin D. Williamson is a writer in residence at the Competitive Enterprise Institute, in which capacity he has written about a number of subjects, including climate policy and regulation, for a number of publications. This series on the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) and firearms regulation is part of that work. Today’s installment looks at how the ATF’s political motivations shape its rulemaking.
Part 2: The ATF Is a Tax Collector
Part 4: The View From the Back Office
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.
Please note that we at The Dispatch hold ourselves, our work, and our commenters to a higher standard than other places on the internet. We welcome comments that foster genuine debate or discussion—including comments critical of us or our work—but responses that include ad hominem attacks on fellow Dispatch members or are intended to stoke fear and anger may be moderated.
With your membership, you only have the ability to comment on The Morning Dispatch articles. Consider upgrading to join the conversation everywhere.