Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
According to the new rules issued by the Bureau of Alcohol, Tobacco, Firearms, and Explosives, all owners of pistol-stabilizing braces have until the end of the month to either register their brace-equipped pistols as short barreled rifles under the National Firearms Act, or “permanently remove and dispose of, or alter, the stabilizing brace such that it cannot be reattached.”
But Rep. Thomas Massie says ATF Director Steve Dettelbach may have given gun owners a way to keep ahold of their braces without registering their guns under the NFA. In a Twitter thread, Massie highlighted Dettelbach’s recent testimony before a House committee on how the pistol brace rules will be enforced and how gun owners can comply.
"(1/5) Did the ATF Director create a new legal defense for millions of pistol brace owners in his sworn testimony? He suggested that compliance can be achieved by simply detaching the accessory from the firearm, but his advice could conflict with other ATF guidance."
As Massie pointed out, Dettelbach’s statement appears to be in direct conflict with the ATF’s own language.
"(3/5) But the written ATF rule says to comply in this manner the owner must: 'Permanently remove and dispose of, or alter, the stabilizing brace such that it cannot be reattached, thereby removing the weapon from regulation as a ‘firearm’ under the NFA.'”
"(4/5) I’ll be sending ATF Director Dettelbach a letter asking him to clarify whether the compliance option he suggested for pistol brace owners in his Congressional testimony was accurate and complete. If he was wrong, he may have just put millions of owners in legal jeopardy."
Maybe Dettelbach doesn’t have a clue what his own agency’s rule actually says, or he’s interpreting the new rule in a way that would be beneficial to those current owners of pistol braces and would outrage gun control activists. A third possibility is that Dettelbach was trying to mollify members of congress like Massie while the agency is still prepping to go after any gun owner who might remove their brace and believe they’re in compliance with the new rule.
"(5/5) his testimony also conflicts with ATF’s 'constructive possession' theory: 'Can I possess a pistol and unattached stabilizing brace? An NFA firearm need not be assembled to be regulated as such. Whether a person may be in constructive possession of an NFA firearm depends on the facts of a particular case.'”
Hopefully this will be a moot point by the end of the month and a federal judge will grant an injunction blocking enforcement of the stabilizing brace rule altogether, but if the rule is allowed to take effect then Massie is right about Dettelbach giving gun owners a new legal defense while still putting them at risk of arrest and prosecution.
I have a feeling that since the cameras are no longer on him Dettelbach’s response to Massie will say something about having mispoke in his congressional testimony, and that yes, simply possessing a pistol brace that could be attached to a pistol will be a violation of the ATF rule and make gun owners open to federal felony charges and the possibility of a ten-year prison sentence.
There are more than a half-dozen lawsuits taking on the stabilizing brace rule pending around the country, and the broader issue is whether the ATF has the authority to designate brace-equipped pistols as SBRs or whether Congress is the appropriate body to re-classify and expand the arms covered by the National Firearms Act (though there are several lawsuits that argue the ATF rule is also a violation of the Second Amendment and not just the Administrative Procedures Act). Dettelbach’s comments during his congressional testimony could prove useful to the plaintiffs in these cases since they’re an indication that the rule is so vaguely written even the ATF’s own director is unclear about how gun owners can comply. Given that a violation of these rules could result in a decade behind bars, the rule of lenity should lead the courts to side with the plaintiffs here, just as we saw with the Fifth and Sixth Circuits when it came to the ATF’s ban on bump stocks.
I honestly have no idea what led Dettelbach to respond to Massie’s questions the way he did, but I do know that his answer to Massie’s queries aren’t going to be helpful to the Biden administration’s defense of its pistol brace rule in the weeks ahead of the May 31st registration deadline.