DOJ Issues Proposed Rule On Pistol Braces, Model "Red Flag" Legislation

AP Photo/Evan Vucci

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.

You can read the full proposed rule regarding pistol braces here, but in essence the DOJ and ATF are proposing the adoption of a new “worksheet” that the firearms industry and individual gun owners can use to determine if an AR-style pistol equipped with a stabilizing brace will likely be considered by the ATF to be a pistol or a short-barreled rifle subject to registration under the National Firearms Act. I say likely because the agency still hasn’t issued a clear directive one way or the other. If the firearm in question has certain characteristics that the ATF says make it more likely to be shoulder-fired, then the ATF will likely determine that the gun is in fact a short-barreled rifle.

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.

The worksheet itself lacks objective criteria in many regards. For instance, if the “rear surface” of the stabilizing brace is “useful for shouldering the firearm,” then that makes it more likely that the firearm the stabilizing brace is attached to will be considered a short-barreled rifle, but the agency doesn’t explain what would make that surface “useful” or not. A telescoping or adjustable brace also makes it more likely that the gun in question would be considered an NFA item, though an adjustable brace is useful for AR-style pistols, since not everyone’s arm is the same length and an adjustable brace makes it easier for a user to correctly use the brace as it’s intended.

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.

Under the model legislation, law enforcement, family members, household members, dating or “intimate partners”, health care providers, school officials, and “any other appropriate persons” included by the state could start the “red flag” process, and the first court hearing could take place before the person who’s the subject of the petition is even aware that it’s been filed. After that ex parte hearing has taken place, a second hearing would be held where the subject can try to rebut the allegations of the petitioner, but it’s important to note that nothing in the DOJ proposal provides for any sort of public defender in cases where the petitioner cannot afford an attorney.

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.