Two months ago, President Joe Biden announced his first executive actions on gun control, promising that the Department of Justice and the ATF would issue proposed rules aimed at cracking down on the proliferation of home-built firearms and AR-style pistols that use stabilizing braces, which Biden and other anti-gun advocates want to declare as items subject to the National Firearms Act. The DOJ’s proposed rule on so-called “ghost guns” was unveiled a few weeks ago, and today the DOJ released the agency’s proposed rule dealing with pistol braces, along with model “red flag” legislation that the administration is hoping states will adopt in the coming months.
In order to make their new proposal comply with existing law, the ATF is proposing to redefine what a rifle is under both the Gun Control Act and the National Firearms act by adding an additional sentence to the current definition.
The new sentence would clarify that the term “rifle” includes any weapon with a rifled barrel and equipped with an attached “stabilizing brace” that has objective design features and characteristics that indicate that the firearm is designed to be fired from the shoulder, as indicated on ATF Worksheet 4999.
If that sounds like a really vague definition of “rifle” to you, you’re not alone. You shouldn’t have to fill out a worksheet to figure out if a gun is a rifle or not, but that’s exactly what the ATF would require as opposed to establishing (or keeping) the clear definition that’s been in place in the National Firearms Act since the 1930s.
In short, this looks like an attempt by the DOJ, the ATF, and the Biden administration to declare that millions of legally-owned AR-style pistols are actually subject to the provisions of the National Firearms Act without directly saying so.
As for the model “red flag” legislation, the DOJ has come up with an incredibly broad proposal that would allow almost anyone to petition the courts to seize someone’s firearms using a very low legal standard, but would make it incredibly difficult for those subject to an Extreme Risk Protection Order to get their guns returned to them. At the same time, the model legislation is incredibly vague on many of the specific details, leaving it up to the states to determine many of the particulars in terms of implementation.
The Biden administration recommends that any red flag order lasts for a year, but again leaves it up to the states to decide how long the firearms seizure should last. Under the model legislation, any “red flag” order could also be renewed an unlimited amount of times, turning what’s supposed to be a temporary measure aimed at a person in crisis into a potential lifetime ban on owning guns, even if the petitioner has never been accused of any criminal activity whatsoever.
The model legislation is a suggestion to the states, unlike the proposed rule on stabilizing braces, which have the potential to turn millions of legal gun owners into felons for simply maintaining possession of their brace-equipped AR-style pistol if the ATF were to decide that their firearm is actually a short-barreled rifle. The public comment period hasn’t yet opened, but when it does gun owners and Second Amendment supporters should speak out and reject another attempt by the Biden administration to rewrite the Gun Control Act and the National Firearms Act through regulations instead of using Congress to make those changes via legislation. The votes may not be there for Congress to enact these changes, but that doesn’t give the administration the authority to do so unilaterally.