Texas Attorney General Ken Paxton and Gun Owners of America (GOA) filed a federal lawsuit yesterday challenging the Biden administration’s ban on unregistered handguns equipped with stabilizer bars, which took effect on January 31. The suit, filed in the US District Court for the Southern District of Texas, claims the ban is arbitrary and capricious, against the law and in violation of the Second Amendment.
Like the Trump administration’s ban on bump stocks, the handgun holder rule is based on an unlikely reinterpretation of federal law that has contradicted the position of federal regulators for years. So it raises some of the same questions that convinced the US Court of Appeals for the 5th Circuit (which includes Texas) to rule that the ban on bump stocks violated the Administrative Procedure Act. Finally, the question is whether administrative agencies can criminalize the possession of hitherto legal products without Congressional approval.
When President Joe Biden announced the new rule in April 2021, he said it would “make it clear” that the addition of a stabilizing mount “effectively turns a handgun into a short-barreled rifle subject to the requirements of the National Firearms Act.” This means that anyone who owns a pistol with a stabilizing grip must register it with the federal government. The GOA warned that the new policy “will certainly result in the confiscation, destruction or forced registration of millions of AR-15 and other legally purchased handguns.”
Do such handguns actually qualify as short-barreled rifles under the National Firearms Act (NFA)? The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has repeatedly said no.
The NFA defines a rifle as “a weapon designed or redesigned, made or modified and intended to be fired from the shoulder.” In 2017, the ATF reaffirmed that “stabilization mounts are perfectly legal accessories for large handguns or handguns,” although the addition “used as a stock” would make any firearm with a barrel less than 16 inches a “non-registered NFA firearm.”
Biden told the ATF to reverse that position, meaning any stabilizing clip would qualify as a shoulder stock, even if the gun it’s attached to is not “intended to be fired from the shoulder.” Like the Trump administration’s claim that rifles equipped with bump stocks qualify as machine guns under the NFA, that spin seems inconsistent with the statutory definition. “The purported ‘interpretation’ offered by ATF of the statute in the Final Rule,” the suit says, “is incomprehensible, arbitrary and capricious and certainly not the ‘best interpretation’ of the law.”
When the NFA was passed in 1934, the $200 tax it imposed on the transfer of the guns it covered, which was about $4,500 in today’s dollars, was supposed to be too high. The ATF said the “fundamental purpose of the law was to limit, if not prohibit, transactions of NFA firearms.” Originally, that “NFA firearm” was meant to include handguns. The ban on short-barreled rifles was intended to prevent people from circumventing the handgun ban by shortening long guns to make them easier to conceal.
“Although handguns were ultimately removed from the NFA language before it was enacted, short-barreled rifles and weapons made from rifles were not removed and continue to be taxed,” the lawsuit states. “This makes absolutely no sense from a ‘public safety’ or common sense perspective, since a person can legally own, without NFA registration, both a pistol (short) and a rifle (long) version of the same platform firearm (such as an AR-15 or AK-47), but cannot possess the ‘short-barreled rifle’ (medium) version of the same platform.”
Whether it makes sense or not, it’s a rule passed by Congress. But now the ATF says that handguns are covered by the NFA when equipped with stabilizing mounts, even though it has argued otherwise for a decade. When the issue first arose in 2012, the ATF said that “the supplied ‘corset,’ when attached to a firearm, ‘did not convert that weapon to a shoulder-fired weapon and would not change the classification of a pistol or other firearm,’ and therefore , ‘such firearms would not be subject to NFA control.'”
Since then, the ATF has repeatedly approved similar designs. Back in July 2018, the ATF said that a sling “used to help shooters stabilize their pistol while firing one-handed … is not considered a shoulder stock and therefore can be attached to a pistol without making the firearm NFA. ” As a result of those classification decisions, the lawsuit states, “millions of Americans already legally own pistols with stabilizing grips, purchased and manufactured in the years since they were invented and first approved by the ATF in 2012.”
A new ATF rule makes those handguns illegal unless owners go through a registration process, which includes submitting fingerprints, identifying information and photos of the owner and the firearm. If they fail to comply with those requirements by May 31, their continued possession of handguns with stabilizing grips will be a felony punishable by a fine of up to $10,000 and/or up to 10 years in prison. The ATF rule, the lawsuit alleges, “subjects millions of American citizens to criminal penalties for possessing firearms they have legally purchased, often with the express approval of the ATF.”
The ATF has waived taxes on previously owned guns it now considers “short barrel rifles.” The agency said it was “appropriate to waive this retroactive tax liability” in light of “public confusion” over the status of handguns equipped with slings. But that confusion, the suit says, is entirely due to ATF’s reversal of its longstanding position: “ATF has repeatedly and expressly stated that various stabilizing mounts do not convert firearms into the short-barreled firearms that ATF now claims they are.”
Under the new rule, a handgun becomes a rifle when “it is equipped with an additional component or other rear accessory (eg, a ‘stabilizing brace’) that provides a surface to allow the weapon to be fired from the shoulder, provided that other factors … show that the weapon was designed, made and intended for shooting from the shoulder.” The rule lists six “other factors,” including the “weight or length” of the weapon, “length of draw,” “marketing and promotional materials” and “information showing the likely use of the weapon.”
The lawsuit claims the new definition is hopelessly confusing, leaving gun owners to guess how exactly the ATF will weigh those “other factors.” He notes that the ATF “doesn’t even want to promise AR-15-style pistols without straps (which have been around for decades) are not short-barreled rifles.”
The rule was “designed from the outset to be vague and incomprehensible, leaving gun owners with absolutely no way to conclusively determine whether their firearm is an unregistered short-barreled rifle,” prosecutors say. “None of the purported factors in the regulation have any meaning, because it is completely devoid of any measurable standard. This is not the rule of law. Americans are not required to draw conclusions to determine whether they are committing crimes, at the risk of ruining their lives if the ATF draws a different, arbitrary conclusion.” The rule’s vagueness, plaintiffs argue, violates the Fifth Amendment’s guarantee of due process, as well as the Administrative Procedure Act.
The lawsuit also claims that ATF’s redefinition of short-barreled rifles violates the Administrative Procedure Act because it is “arbitrary and capricious.” Gun manufacturers and gun owners who relied on ATF guidance to determine how to comply with the law suddenly face a new risk of felony charges, even though the law hasn’t changed. That threat, prosecutors say, exceeds the authority Congress gave the ATF.
ATF “may not legislate through regulations to carry out the perceived intent of Congress or the purported congressional purpose behind federal gun control statutes,” the lawsuit said. “Congress did not authorize the ATF, decades after the law was enacted and at least a decade after the first stabilizing mount was permissively classified, to change its longstanding policy, materially revise the definitions, and reclassify millions of legally purchased firearms to come under NFA control.”
The NFA was allegedly an exercise of the taxing power, and the registration was allegedly designed to facilitate revenue collection. Although the ATF claims it is using its authority to tax short-barreled rifles, it has no plans to collect taxes from current owners of stock guns. The requirement to register without collecting taxes, the plaintiffs claim, removes the constitutional justification of the law.
The lawsuit also claims that banning handgun straps infringes on the right to keep and bear arms. Because these products are “in common use” for “lawful purposes,” prosecutors say, they are covered by the Second Amendment, meaning the government has the burden of proving that the ban is “consistent with the nation’s historic tradition of firearms regulation.” Because the government “cannot meet this burden,” they argue, “this muzzled handgun regulation is unconstitutional.”
Even if holster guns qualified as “short-barreled rifles,” the suit says, that would not exclude them from the Second Amendment. “There is a broad historical tradition, contemporaneous with the founding era, of widespread short-barreled pistols or short-barreled rifles,” the lawsuit says, citing many examples. “Such firearms have never been restricted as to who may possess them and have never been required to be registered until the passage of the NFA.”
Plaintiffs also argue that the ATF’s registration requirements violate the Fifth Amendment’s protection against self-incrimination. Despite its earlier advice to the contrary, the ATF now maintains that handguns with grips have always been covered by the NFA. “The ATF alleges that someone in possession of a handgun with a holster unlawfully possessed and was in unlawful possession [short-barreled rifle] but the ATF will nonetheless allow an individual to remain in possession of their illegal [short-barreled rifle], provided the possessor provides the ATF with their identification information, along with identification information for the firearm (i.e., proof of the alleged crime). ATF claims it allows this by using its ‘enforcement discretion’.”
But what about the 24 states that independently prohibit the possession of short-barreled rifles unless they are registered with the federal government? If gun owners living in those states meet the ATF’s new registration requirements, they will provide evidence that they have violated those laws in the past. The lawsuit notes that the registration information will be shared with government authorities, “which could then use it to prosecute the registrant.”
This frightening and confusing situation is what happens when the executive branch invents crimes under the guise of law enforcement. Americans who followed the rules as explained by the government were turned into criminals by administrative decision.