OSD 96: The frog jumps out of the pot
A debate is won in how it’s defined.

Last week’s newsletter — “OSD 95: Schrödinger’s gat — the ATF and Polymer80” — closed like this:

The flip side to that coin, though, is that norms work to stabilize a relationship. And relationships are two-sided. So when one side unilaterally throws out the norms, now both sides of the relationship are destabilized, and therefore suddenly hard to predict. For the past few years, manufacturers (particularly in the pistol brace and 80% receiver industries) have tried hard to play ball with the ATF. With the ATF suddenly signaling that it doesn’t want to play anymore, we’ll see what manufacturers —and customers — do.

One effect: this is likely to accelerate technology and business practices that are fundamentally ungovernable. You can model reliable, stable norms essentially as “incentive to play ball with the system” — it’s not all peachy, but hey, you get predictability. Getting rid of that incentive isn’t the end of the game, it’s the beginning. It’ll be interesting to see how it plays out.

The piece was about 80% receivers, but we framed it broadly like that because we figured there’d be more ATF kerfuffles soon. But we didn’t figure on it being quite so soon. Three days later, news came out that the ATF was restating its position on braces. It’s too early to know what the exact effect will be, but at least some pistol brace configurations which today don’t raise an eyebrow are going to start being treated as SBRs by the ATF.

The temptation here is to start litigating the specifics of each pistol brace design. The ATF even mentions that in their statement, listing things like length of pull, the surface area of the back of the brace, and what kind of sight picture you can get when using the brace at arm’s length.

But to dive into that debate is a) to grant the underlying premise of the law being enforced here (the NFA of 1934), and b) to let that law define the rules of what is right or wrong. Let’s take those one by one.

First, (a) is self-evidently a fairly barbaric anachronism. This is a law from 1934, and it’s casually pro-imprisonment in a way that today is usually considered embarrassing. The premise of the law is simple: a 16” barrel is fine, but a 15” barrel without ATF permission is punishable by 10 years in federal prison. Would you grant that as a starting point for a discussion?

Second, (b) is inevitably a losing game. If you start from false premises, anything can be “proved” true — so if you’re interested in the truth, agreeing to a false premise means agreeing upfront to abandon the very thing you’re after. It is not acceptable that a 15” barrel is a crime. So why spend time playing a game about exactly which guns with 15” barrels are or aren’t crimes.

Now, there’s an obvious objection here: wait, braces have pushed gun rights forward! And that is undoubtedly true. We all owe brace makers a lot, and should be supporting them in the likely-several-years of litigation ahead about this. There are 3-4 million braced pistols in circulation, and they’ve made more types of guns more available to more people. Especially in restrictive states where braces have allowed people to work inside of laws that left no other path to owning modern guns. All of that has moved the needle for gun rights.

This isn’t meant to question that. The fewer restrictions on braces, the better. What this is meant to do is to keep our eye on the ball: the elimination of barrel length laws altogether. Braces are awesome, but they’re not the goal in and of themselves, they’re a powerful tool on the way to having no illegal barrel lengths.

“Just any ol’ barrel length? That sounds crazy.” And for a lot of people today, it is. But that’s only because for decades, by engaging the ATF and gun control groups on the legal minutiae of the NFA, we’ve granted the law’s underlying premise. As we simply tell people the truth, “any ol’ barrel length” will seem pretty reasonable to regular people. Here’s what will seem unreasonable:

• Sending thousands of people to federal prison for up to 10 years over the barrel length measurement on a gun. It also bears mention, since gun control orgs are striving to frame minority rights and gun rights as being mutually exclusive, that the people prosecuted most aggressively under these laws are disproportionately poor folks and minorities.
• Toggling the country’s millions of braced pistol owners from law-abiding people to felons. As an example from recent history, in 2013 New York state passed its SAFE Act, which punished certain rifle cosmetics/ergonomics with seven years in prison. The SAFE Act achieved 4% compliance. And that’s in New York, which has one of the smallest gun cultures (by percentage) in the country. There are now up to 1 million New Yorkers with a seven-year felony sitting in their basement. Many of them don’t even know it.
• Doubling down (with a decade in prison) on a paperwork mistake from 1934. The NFA’s barrel length rules are a vestigial organ of the NFA itself. Early drafts of the NFA included all handguns; in 1934 the $200 tax was equivalent to $3700 today, and the bill was designed to de facto ban all firearms other than a hunting rifle or shotgun.

  The bill’s writers added the barrel length rules to stop people from buying a rifle, cutting down the barrel and the stock to make it almost as short as a handgun, and then saying, “It’s a rifle, not a handgun.”

  Just one problem: a handgun ban was too unpopular. So they removed handguns from the NFA — but never removed the barrel length rules that were only added to close a handgun loophole. That is why today, 86 years later, a 16” barrel is fine but a 15” barrel is 10 years in prison.

So yes, braces are awesome. But keep your eye on the ball: the elimination of barrel length laws. That is reasonable by default. The three points above aren’t. So get out there, stay level-headed, and spread the facts. If gun control groups want to defend indefensible points, let’s start making them need to.