ATF has a new Catch-22 requirement for home-built silencers

(AP Photo/Lisa Marie Pane)

The Biden administration is expected to roll out a news ATF rules on home-built firearms and stabilizing braces for pistols at some point in the next couple of months, but ahead of those new regulations officially taking effect it looks like the agency has also changed its policy on home-built suppressors.

Late last month, the ATF rejected approximately 850 applications from gun owners looking to legally make their own suppressors, and according to NRA’s Institute for Legislative Action, the agency’s new interpretation of an existing regulation has created a Catch-22 for gun owners who are trying to comply with federal law.

Under federal law, firearm suppressors, called firearm silencers or firearm mufflers in federal statute, are treated legally the same as other firearms and subject to the registration and taxation requirements of the NFA.

The recent change in policy stems from ATF’s interpretation of the definition of “firearm silencer or firearm muffler” which is “any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part intended only for use in such assembly or fabrication.”

In this case, ATF is specifically concerned with a “combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler . . . .” According to ATF, companies who are selling products that can be used for the assembly or fabrication of a silencer must treat those products as if they are already silencer. The company would need to be a licensed manufacturer, pay a special tax, and the product would need to be transferred on ATF’s Form 4 application, rather than being registered via a Form 1 by the person who intends to use the parts in assembling a functional silencer.

Beyond the equitable issues of denying applicants who in good faith attempted to comply with ATF’s long-time application of federal law, this new interpretation has serious logical problems. If ATF now considers any parts that are intended to be assembled into a silencer as if they are already legally a silencer, then completing a Form 1 for a silencer is now impossible. When an applicant completes a Form 1, they are evidencing an intent to assemble or fabricate a silencer. Any part used in that process would seemingly already be a silencer under ATF’s new twisted reading of the definition.

As the NRA notes, the ATF is asking applicants for detailed information about the parts they plan on using to build their suppressor, which could be legally problematic given that the agency is now considering silencer components as silencers themselves.

It also sounds like an easy fix is going to be hard to find, with the NRA saying its “working with pro-gun members of Congress to push back on ATF’s newest overreach” without mentioning any plans for a potential lawsuit. With Democrats in control of both chambers, pushing back on this overreach isn’t likely to bear fruit until next year at best, and that’s only if Republicans take control of the House and Senate.

The Biden administration has been criticized by some gun control activists for not doing enough on their issue, and it could very well be that the White House decided to throw them a bone by directly targeting those gun owners who want to comply with federal law. It won’t do a thing to reduce violence, and it could very easily turn law-abiding gun owners into paperwork criminals through no fault or ill intent of their own, but that’s a feature and not a bug for the gun prohibitionists.

We’ll have more on this situation in the coming days, but for now I’d urge gun owners hoping to legally and lawfully build their own suppressor to be very cautious now that the ATF has changed its rules. As idiotic as the new interpretation is, the agency can still use it to make life hell for applicants, and that’s exactly what Joe Biden’s allies in the gun control lobby are rooting for.