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OSD 204: When you come at the king, you best not miss
The ATF's gamble on the brace ban.
On Friday, “the Attorney General signed ATF final rule 2021R-08F”, the rule saying that in the ATF’s eyes, braces are stocks. It takes effect as soon as it’s published in the Federal Register (which will be any hour/day now). Per the ATF:
This rule is effective the date it is published in the Federal Register. Any weapons with “stabilizing braces” or similar attachments that constitute rifles under the NFA must be registered no later than 120 days after date of publication in the Federal Register; or the short barrel removed and a 16-inch or longer rifle barrel attached to the firearm; or permanently remove and dispose of, or alter, the “stabilizing brace” such that it cannot be reattached; or the firearm is turned in to your local ATF office. Or the firearm is destroyed.
First a procedural note: there are lawsuits in flight about this, and their proximate goal is to secure an injunction that prevents the ban from taking effect. Then they’ll litigate the ban itself. At first that’s going to be on administrative law grounds more than Second Amendment grounds. The idea there is that it’s illegal for the ATF to do all of the following at the same time: interpret criminal law; make vague interpretations; reverse and re-reverse itself multiple times; settle on a final position that criminalizes conduct it had previously allowed.
The interpretative principle that frowns on this sort of agency conduct is called “the rule of lenity”. It has been making a bit of a comeback in the past few years, after a few decades where courts generally allowed administrative agencies to go full Judge Dredd. That comeback picked up steam two weeks ago, when the en banc Fifth Circuit struck down the bump stock ban by a 13-3 vote. Eight judges in the majority ruled that the relevant law’s (the Gun Control Act of 1968) definition of machine guns clearly does not cover bump stocks. And seven judges in the majority were willing to go further, concluding (per the Volokh Conspiracy’s writeup) “that ATF should not get Chevron deference because the statute imposes criminal penalties and the ATF reversed its prior interpretation of the statute.”
That’s mixed news for the brace ban. The case that braces don’t make an SBR is not (by the exact wording of the GCA) quite as airtight as the case that bump stocks aren’t machine guns. But it’s not clear that the ATF’s argument is legally correct either. And if the Fifth Circuit’s approach in the bump stock case holds up, then the ATF will find itself in a world where courts say that if it’s not clearly right, then it’s clearly wrong. Administrative agencies are used to friendly treatment from courts. They don’t train for getting dragged to deep water. Whereas that’s all that their plaintiffs train for. (Cue the Bane “you merely adopted the dark, I was born in it, molded by it” clip.)
But administrative law isn’t the deepest water here. The real deep water is SBRs.
As a structure for the legal status of tens of millions of gun owners, “owning a 16-inch rifle is fine, but owning a 15-inch rifle will send you to prison for a decade if you don’t get fingerprinted and do some paperwork first” is a state with a lot of potential energy. That energy has held back by an unstable equilibrium between two groups. One group says, “We’re going to use braces to get around this meaningless distinction.” The other says “And we’ll agree that you’re legally fine, just don’t make too much noise about it.”
Once braces got mainstream attention, it was inevitable that the the ATF would backtrack. If there’s an iron law of administrate action, it’s that one rule stands above all the others: don’t make the agency look ridiculous. They can choose to be flexible about lots of things, but any rational bureaucrat cannot be flexible about something that undermines their legitimacy.
So with rule 2021R-08F, the ATF is choosing (well, “choosing” in the same way that your white blood cells “choose” to fight an infection — “fated by its inherent structure” is a better description) to break the unstable equilibrium on braces. Implicitly, that’s a bet that the new equilibrium will be better for them. In 1934 or 1968 or 1994, that would be a lock. In 2023, it’s a risky move.
The administrative law challenges will take years to play out, and they won’t stop the ATF from coming back with another, slightly narrower brace ban. So the biggest effect of 2021R-08F is that it forces gun rights groups to make a legal attack on the underlying barrel length laws. That attack would have been DOA even 10-15 years ago. But today, short-barreled weapons are:
✅ Passing 2008’s Heller test of being in common use
✅ Passing 2022’s Bruen test — other than the law in question, the “text, history, and tradition” of regulating gun possession by arbitrary barrel length measurements is approximately nonexistent
✅ In the splash zone of a wave of post-Bruen court rulings forcing some gun laws (like the possession ban for people with felony convictions) to be actively justified for the first time
Those are all the advantages that SBRs have in court. They’ll have one additional one in the public consciousness.
Since the NFA passed in 1934, the phrase “sawed-off shotgun” has been a magic incantation, shorthand to cast the spell that a short barrel is contraband. Search this transcript of the House committee hearing on the NFA for the term “sawed-off”.
You’ll find the NFA’s proponents exercised about short barrels (Rep. Doughton of North Carolina, the committee’s chairman: “What excuse or what justification is there for anyone having a sawed-off shotgun?”) and its opponents willing to throw short barrels under the bus in order to keep pistols out of the NFA (Seth Gordon, president of the American Game Association, testified that the NFA should cover only machine guns, and when asked about whether he’d settle for including “sawed-off shotguns” too he said, “If you can find a way to regulate them, I am in favor of it. When you go into pistols and sidearms that sportsmen carry on their hunting trips and require them every time they cross a State line to get a permit in order to do it, there will be 6,000,000 sportsmen opposed to it.“)
Nobody cared (or, more charitably, could afford to care) about short-barreled weapons. Among the public, people “knew” that they were dangerous, and the discussion was closed. Outside of gun rights circles, nobody has given that any thought for 90 years.
For that whole time, the hardest thing about educating the public about SBRs has been getting them to think about SBRs at all. By deciding that this is the time to upset the equilibrium, the ATF has now solved that problem. They’re betting that “the police should take you to prison if your barrel is 15 inches long” will be received in 2023 the same way it was in 1934.
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