Joe Manchin Should Oppose Biden's ATF Nominee, But Will He?

AP Photo/Manuel Balce Ceneta

Based on West Virginia Senator Joe Manchin’s own past comments, there’s no way that the Democrat should vote to confirm David Chipman as head of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, but Manchin himself has been coy about whether he’ll give Chipman the nod when the full Senate votes to confirm Biden’s nominee as permanent director of the ATF.

Back in 2012, Manchin expressed some support for imposing new restrictions on modern sporting rifles, but since then has shied away from embracing a ban. In 2018 the senator told MSNBC that he wouldn’t take anyone’s gun away, and in 2019 he was even more explicit when Robert Francis “Beto” O’Rourke declared that if he was elected president, he’d pass a mandatory confiscation of firearms.

“I can tell you one thing: Beto O’Rourke’s not taking my guns away from me,” Manchin told reporters at the time.

I hope West Virginia gun owners are flooding Manchin’s office with calls and emails reminding the senator that while Beto O’Rourke isn’t in the White House, Joe Biden himself has called for the exact same ban, and his ATF nominee is in full support of taking guns away from legal gun owners. During his confirmation hearing on Wednesday, David Chipman admitted that he’d like to see even current gun owners banned from keeping their rifles unless they registered them with the federal government. If they didn’t do so, Chipman believes they should be prosecuted under the National Firearms Act, which means a potential ten-year federal prison sentence for anyone who simply maintains possession of a gun they lawfully purchased.

There are an awful lot of West Virginians who wouldn’t register their legally-owned guns with the government, and Manchin has to know that. Does he really think that those constituents of his should all be sent to prison for the “crime” of possessing the most popular rifle in the United States?

Chipman has tried to explain away his views by telling senators that while he personally believes AR-15s should be banned, if he’s confirmed as ATF director he’ll follow the current law. The problem with that defense is that the ATF has the power to set the rules and regulations for the firearms industry to follow, and the Biden administration is already demonstrating its desire to go around Congress and impose a new gun ban through administrative action instead of a vote in Congress.

The Department of Justice and the ATF are currently drafting a proposed rule that would re-define millions of AR-style pistols equipped with stabilizing braces as “short-barreled rifles,” which must be registered under the National Firearms Act. The text of that proposal is likely to be released to the public next week, but when Biden outlined his plan back in April, he made it clear that his intent was to expand the list of NFA items by executive fiat.

Biden and Chipman could easily attempt to the same thing with AR-15s and other semi-automatic rifles by declaring that semi-automatic rifles can be “readily” converted into machine guns, and therefore should also fall under the auspices of the NFA. In fact, the ATF is already trying to broadly redefine its definition of “readily” in another proposed rule change published last week:

To provide guidance on how the term “readily” is used to classify firearms, including frame or receiver parts kits or weapon parts kits sold with incomplete or unassembled frames or receivers, the NPRM adds this term to 27 CFR 478.11 and 479.11 and defined as “a process that is fairly or reasonably efficient, quick, and easy, but not necessarily the most efficient, speedy, or easy process.” It would further list factors relevant in making this determining to include: (a) Time, i.e., how long it takes to finish the process; (b) ease, i.e., how difficult it is to do so; (c) expertise, i.e., what knowledge and skills are required; (d) equipment, i.e., what tools are required; (e) availability, i.e., whether additional parts are required, and how easily they can be obtained; (f) expense, i.e., how much it costs; (g) scope, i.e., the extent to which the subject of the process must be changed to finish it; and (h) feasibility, i.e., whether the process would damage or destroy the subject of the process, or cause it to malfunction. This definition and factors considered in determining whether a weapon, including a weapon parts kit, or unfinished or damaged frame or receiver may readily be assembled, completed, converted, or restored to function are based on case law interpreting the terms “may readily be converted to expel a projectile” in 18 U.S.C. 921(a)(3)(A) and “can be readily restored to shoot” in 26 U.S.C. 5845(b).

With their new, broad, and vague definition of “readily,” the ATF under Biden could easily determine that all existing modern sporting rifles meet the definition of “machine gun,” which is defined in the National Firearms Act as any firearm that “shoots, is designed to shoot, or can be readily restored to shoot automatically more than one shot, without manual reloading, by a single function of the trigger.”

Gun owners actually got a hint of this strategy during the Trump administration, when the ATF reclassified bump stocks as “machine guns.” It wouldn’t be much of a stretch for the agency to do the same with semi-automatic rifles themselves, and given that David Chipman has already embraced the idea of classifying these rifles as machine guns, it’s ludicrous to believe that Chipman and the Biden administration would wait for Congress to pass a new “assault weapons ban” if they thought they could do it themselves.

Obviously any such rule change would be challenged in court, but there’s no guarantee that gun owners would be successful in defeating the backdoor gun ban. The best way to prevent this from happening is to ensure that the BATFE isn’t run by a zealous anti-gun activist like David Chipman, and if Joe Manchin is serious about protecting the rights of his constituents to continue to be able to purchase and possess the most commonly-sold rifle in the United States, he must vote “no” when Chipman’s nomination comes up for a vote on the Senate floor.