Just days before the election, and after early voting has already begun, the ATF has quietly started re-interpreting the definition of “handgun” as defined by the Gun Control Act, at least as it applies to handguns that are imported from overseas, and it’s already starting to impact some AR and AK-style pistols. The problem could grow exponentially worse, however, as one law firm is warning that a consistent application of the ATF’s apparent re-interpretation of a handgun could lead to major issues for many existing gun owners.

On today’s Bearing Arms’ Cam & Co, Josh Savani, the director of research and information at NRA’s Institute for Legislative Action, says that the ATF’s new moves are a preview of the regulatory assault on the Second Amendment that we can expect if Joe Biden is elected president. Others, including Gun Owners of America’s Erich Pratt, accuse the ATF of “going rogue” in an attempt to hurt Donald Trump’s support from gun owners right before the election.

“The recent Honey Badger gun ban and revelation of absurd private classification rulings represents a pro-Biden ‘October Surprise’ by an out-of-control, anti-gun ATF. By disregarding orders to stand down, rogue ATF agents seem prepared to help usher in a Joe Biden Administration, especially because their actions appear to be purposefully timed to anger President Trump’s base immediately before an election.

“ATF’s actions are just a taste of what is to come in Joe Biden’s gun controlled-America. The Biden gun control plan seeks to treat many commonly-owned, semi-automatic rifles as NFA weapons, which endangers the freedom of tens of millions of peaceful individuals who own these guns, possession in and of itself should not be a crime,” Pratt concluded.

As Savani explains, under the Gun Control Act of 1968, firearms are not allowed to be imported into the U.S. unless the ATF determines they have a “sporting purpose,” but the ATF has suddenly changed their idea of what makes a handgun “sporting.” For many years, generally speaking, the heavier and bulkier the pistol, the more likely it was to be classified as “sporting,” in large part because the GCA aimed to crack down on small, easily concealable firearms.

Recently, however, the ATF has completely reversed course, and now appears to be targeting the larger, bulkier AR and AK-style pistols. As the Wiley law firm recently put in an alert to clients:

Despite ATF previously stating that there is no limit to how long or heavy a handgun should be to qualify as “sporting” under section 925(d)(3), ATF private classification letters issued within the past few months indicate that the agency has shifted course by reinterpreting what constitutes a “handgun.” In company-specific letters, ATF takes the position that if a submitted firearm is too long or too heavy, it fails to meet the definition of “handgun” under the Gun Control Act, as it is not “designed to be held and fired by the use of a single hand.” The Firearms and Ammunition Technology Division (FATD) of ATF—which conducts importability evaluations—says that it is taking a subjective approach to the statute by allowing individual examiners to determine if he or she can fire the weapon with one hand without difficulty.

This approach is resulting in inconsistent determinations, of which the regulated community should take note. Within the past few months, at least one HK91 pistol-style submission as light as 8 pounds, with a barrel length of 8-3/4 inches and an overall length of 21-3/4 inches, has been determined to fall outside the definition of “handgun.” This is a change from previous determinations where firearms weighing over 8 pounds, with 20-inch barrels, and an overall length of approximately 31-1/2 inches were held by FATD to be “handguns.” Since the letters are not publicly available, it is impossible for regulated companies to know the full range of FATD’s determinations. This has serious implications for regulated businesses.

And as both Wiley and Savani note, if the ATF decides that this new interpretation of what constitutes a handgun starts to be applied to domestically produced firearms, it could leave millions of existing gun owners in possession of pistols that the ATF would now classify as AOW (any other weapon). If that happens, gun owners would have to register their newly-classified AOWs with the federal government or risk a decade behind bars.

Under the National Firearms Act, a firearm that has an overall length of less than 26 inches and is neither a pistol, rifle nor shotgun is classified as an “Any Other Weapon” (AOW).² This means that if a firearm under 26 inches in overall length is determined not to be a pistol, rifle, or shotgun, it would necessarily be classified as an AOW.³ AOWs require the payment of a tax and registration with the federal government.

Under ATF’s new reading of the definition, firearms previously classified as large-sized handguns by ATF may now require registration under the National Firearms Act as an AOW. Possession of such a firearm without registration is punishable by up to ten years in prison. Since ATF has not articulated a standard, it is difficult to definitively know whether a large handgun is now an AOW because it may be deemed by the agency to be “too large, or too heavy” to fit within the statutory definition of handgun. The only definitive way to know is to submit the firearm to ATF for evaluation, a process that can take over a year.

If President Trump is re-elected, one of the first things he needs to do is clean house over at the ATF. Personally, I’d prefer to see the agency scrapped completely, but at the very least Trump should appoint a permanent ATF director that will crack down on the arbitrary and capricious rulemaking and establish clear, transparent policies for firearms manufacturers and consumers alike.

On the other hand, if Joe Biden is elected, the recent moves by the ATF are just a taste of things to come. I think Biden and Kamala Harris, along with their anti-gun allies in Congress, would move quickly to institute Biden’s gun ban and compensated confiscation efforts, but even before that he could use the regulatory power of the ATF to re-classify commonly-owned firearms as restricted arms that must be registered under the National Firearms Act. It sure looks like some within the ATF are already signaling their willingness to impose new restrictions on gun owners via regulation in addition to any legislation that Democrats are dreaming up in the case of a Biden/Harris administration.