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Something as important as firearm policy deserves a deliberative and legislative approach, rather than changing classifications at the whim of regulatory fiat.
1934. It was the time of infamous bank robbers like Bonnie and Clyde, John Dillinger, and Baby Face Nelson. It was the age of the Mafia. Interstate crime sprees left trails of death in their wake. Mobsters like Al Capone held entire cities hostage to the whims of criminal empires. Headlines across the nation carried news of gruesome killings, such as the St. Valentine’s Day massacre.
Throughout American society in the 1920s and early 1930s, there was a growing sense that things had gone off the rails. This sense of lawlessness among Americans was reinforced further by the attempted assassination of then-President-elect Franklin D. Roosevelt in 1933. A growing consensus agreed that it was time to take a different approach.
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Later in 1933, the federal government ended the ill-fated effort of Prohibition, robbing mobsters of their most lucrative trade while also ending the ease with which robbers and bandits could blend in with the criminal element. But, sensing that more had to be done to end the wave of violence, a piece of legislation was brought before Congress that would come to be known as the National Firearms Act or the NFA.
The NFA was co-written by the National Rifle Association, which helped ensure that the law would be narrow in scope and focused on ensuring the criminal element could not easily obtain the means to outgun law enforcement and endanger ordinary citizens while continuing to safeguard the means of self-defense for the law-abiding.
The key provisions of the NFA regulated Machine Guns, Short-Barreled Rifles (SBRs), and Silencers (usually called suppressors in the firearm community). The law defined a Machine Gun as any weapon that fired multiple rounds with a single trigger pull and SBRs as any weapon with a buttstock and a barrel length of less than 16 inches. Heavy restrictions were placed on Machine Guns, which has led to only a single instance of their use in a murder since the enaction of the NFA. SBRs and Silencers were far easier to obtain than Machine Guns and simply required the purchase of a tax stamp for the price of $200.
While the NFA has been updated several times over the years, and some additional laws (like the Assault Weapons Ban) have come and gone, the basic provisions on Machine Guns, SBRs, and Silencers remain. However, new technology and weapon accessories have thrown a wrench in the clear interpretation of the law and led to a furious debate across America.
The Pistol Brace
The first pistol stabilizing brace was invented in 2012 by Army veteran Alex Bosco. Several different designs of pistol brace soon proliferated throughout the firearm community, with some designed to attach to the arm and others designed to stabilize by resting on the shooter’s cheek (but not the shoulder). The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) initially approved the use of pistol braces on AR-15 style pistols without being classified as SBRs, since the braces were not designed to be fired from the shoulder.
In 2015, the ATF rescinded its approval of the pistol stabilizing brace for AR-15 style pistols as it had become clear that many firearm owners were putting braces on AR-15s but then functionally using them as butt stocks, essentially circumventing the NFA rules requiring registration of SBRs.
In 2017, the ATF changed course again, once more allowing the use of pistol stabilizing braces. That status quo held for five years until the use of “AR pistols” in several mass shootings in 2022. In response to these events, President Biden directed the ATF to reconsider its classification of pistol braces. This led to its decision in recent days that pistol braces would once more be considered butt stocks and that, moving forward, all weapons previously classified as “pistol builds” would now have to be registered as SBRs.
Bump Stocks, Trigger Cranks, Etc.
Unlike pistol stabilizing braces, firearm attachments such as bump stocks and trigger cranks that mimic or simulate automatic fire have been around for quite some time and have only recently faced attempts of regulation by the ATF. This is because the NFA is very specific in the language used to define a Machine Gun.
A weapon is not considered automatic and subject to regulation under the NFA if it does not have an internal mechanism that allows for multiple shots with one trigger pull. Even though external devices such as bump stocks and trigger cranks allow for a far more rapid rate of fire than can typically be accomplished by manually pulling the trigger, there is still, nevertheless, one shot for every time a trigger is pulled. Additionally, such devices have traditionally been considered “knick-knacks” with little practical application since they heavily affect the accurate use and control of the weapons they’re attached to.
But such devices gained infamy after their use in the 2017 Las Vegas Shooting, which left 60 dead and wounded at least 413. The investigations into the shooting have concluded that a little over 1,000 shots were fired from fifteen different weapons over the course of only ten minutes of shooting. This shooting demonstrated the deadliness with which external devices could be used to approximate automatic fire. Soon thereafter, President Donald Trump responded to bipartisan calls to ban bump stocks by directing the ATF to classify weapons fitted with bump stocks as Machine Guns.
However, the Fifth Circuit Court of Appeals recently struck down the Trump Era ban on bump stocks. As mentioned above, the NFA is very specific in the language used to define a Machine Gun, and the Court ruled that the ATF did not have the regulatory authority to expand that definition to include external devices.
An Unwieldy Status Quo
Wherever a given person comes down on their opinions on firearm policy, I think most reasonable people can agree that the back-and-forth nature of ATF designations for these various firearms accessories is a mind-boggling mess. With these determinations being left to changing and evolving regulatory fiat (often at the behest of whoever happens to occupy the White House), the American people are not getting a straightforward, consistent, or even reasonable set of laws regarding firearms.
Particularly concerning is that the violation of these changing policies carries severe penalties. Over the last ten years, both individual gun owners and sporting goods distributors have lived under a constant state of uncertainty related to whether firearms in their possession will remain legal or will subject them to felony consequences. For store owners, they could face the loss of their Federal Firearms Licensing, essentially consigning them to bankruptcy. For individual gun owners, a felony not only means heavy fines and prison time but essentially takes away their right to bear arms for the rest of their lives. (Especially concerning is the fact that pistol stabilizing devices, as originally designed, were primarily intended for disabled veterans who should be the last people to face the fear of felony charges at the whim of changing regulations).
Part of the rule of law is having consistent and clearly understood laws with processes of amendment that are also consistent and clear. The NFA was established through the proper process of government as an act of Congress, and the changes and adjustments made to the NFA over the years have undergone similar proper processes. But over time, Congress stopped engaging in the difficult but essential function of deliberation and legislation and surrendered its authority to regulatory agencies, who make the unpopular decisions for them and thus insulate legislators from the backlash of their constituents.
This is unacceptable. It is the opposite of the rule of law. Americans do not know what the regulations are going to be in any given year, and they are robbed of their appropriate voice in the crafting of such regulations since they are the result of the decisions of unelected bureaucrats rather than the fruits of deliberation and legislation by the people’s actual representatives.
Whatever the laws regulating firearms are going to be, let them be laws. Let them be the result of the proper processes of government, with input flowing from voters to their representatives, who then craft legislation based on transparent deliberation, legislation that requires a similar process to amend and further define.
Under the Trump administration, many on the Right cheered when the ATF allowed pistol braces to be used, while most on the Left cheered when bump stocks were banned. Now, it’s the Left who cheers the classification of pistol braces as butt stocks, and the Right who cheers the Court’s stay on the bump stock ban. What will the next year bring in this ongoing story, or the year after that?
It’s time we get serious and have a conversation on how the laws should actually be crafted and what they should entail.
As a thought exercise, I spent the last weekend considering what kind of legislation could result from a truly deliberative process in the halls of Congress. Setting aside the institutional dysfunction and the runaway hyperpartisanship currently infecting our nation’s Capitol, what kind of a law might actually come forward through a give-and-take discussion of what a bipartisan majority might be willing to accept? I’m not under any illusions that the chances of such a development aren’t slim to none, but I nevertheless thought it might be beneficial to put forward my thoughts on this matter if, at some point in the future, the American people finally become as sick of the current status quo as I am.
To begin, it’s very clear what Democrats would want from any legislation on this matter. They see the use of pistol stabilizing braces as a circumvention of the intent of the NFA to require the registration of all rifles with barrels under sixteen inches as SBRs. They also feel it is self-evident that if we have laws highly regulating automatic weapons, any external device that mimics, simulates, or approximates automatic fire should be similarly regulated.
So, before pretty much any Democrat would be on board with a piece of legislation that addresses pistol braces and bump stocks, it would have to include similar language to the following:
“Any firearm attachment used to brace a weapon against the shoulder is classified as a buttstock, regardless of the intent of the design.”
“The attachment of any external device to a firearm that rapidly pulls a trigger in a manner approaching or approximating the rate of fire of internally driven automatic fire is classified as a Machine Gun.”
This language or something similar would satisfy most Democrats. But what kinds of concessions might Republicans need to agree to such a law? This is where the give-and-take of actual deliberation would have to come into play. As a Republican, modern conservative, and gun owner myself, perhaps I might offer some suggestions on what provisions of this law would at least be tempting.
Firstly, the length designation for an SBR of sixteen inches has always felt frustrating and arbitrary. The intent of SBR law has always been to restrict the criminal element from utilizing easily concealable rifles. But is a rifle with, say, a fourteen-inch barrel easily concealable? The M4 currently used by our nation’s military utilizes a 14.5-inch barrel, which is still highly difficult to conceal. Additionally, even with the proliferation of “AR pistols” over the last decade, traditional pistols continued to be used in the perpetration of most firearm-related crimes. Barrel lengths between 12 and 16 inches are more appropriately considered carbines. Their use is far more typical in law enforcement and the military for close-quarters combat and by law-abiding citizens for home defense. Today’s criminal element is not concealing carbines in their perpetration of violent crime but using traditional pistols.
Secondly, one of the items regulated by the NFA, silencers, has never been favored by the criminal element. Criminals learned long ago that these devices do not silence firearms as much as the movies would have you believe (which is why we gun nuts prefer to call them suppressors). These devices also tend to make traditional pistols unwieldy and far more challenging to conceal. However, silencers have gained growing popularity in recent decades as law-abiding gun owners have sought additional means of hearing protection. Every year, more and more hunters, recreational shooters, and those interested in home defense are gaining interest in utilizing silencers as hearing protection.
So, this would be my suggestion of what kinds of language our proposed law would have to include in order to get Republicans on board with its passage:
“A Short-Barreled Rifle shall be defined as any shoulder-fired weapon with a barrel length less than 12 inches.”
“Silencers/Suppressors shall be designated as hearing protective devices and no longer subject to NFA registration.”
In summary, what I envision as the result of a deliberative process in Congress would be closing the “pistol brace loophole” to SBR law while redefining an SBR as a shoulder-fired firearm with a barrel less than 12 inches, and banning external devices such as bump stocks and pistol braces while removing the NFA regulations on silencers/suppressors.
The provisions of such a, dare I say it, compromise would be, or should be, tempting to all sides of the debate. No doubt, plenty will decry anything that gives a “victory to the other side” as a betrayal. But I think such a piece of legislation would go a long way to addressing concerns equally across the board, a genuine give-and-take that few probably prefer but most could live with. And, perhaps, most importantly, it would make the law clear and no longer subject to the whims of changing regulations.
Again, I’m not holding my breath that such a deliberative piece of legislation will bubble up from the floors of Congress anytime soon. But…I’m just putting it out there. You never know.
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