The ATF recently released a rule clarification reclassifying some weapons as falling under the National Firearms Act. These weapons are rifle-caliber pistols with a stabilizing brace attached. A Rifle-Caliber Pistol is a gun manufactured without a stock that is made to fire bullets the same caliber as a firearm that typically has a stock attached. These can be used for a portable deer gun in a hunting caliber. Most often rifle-caliber pistols are AR or AK pattern pistols paired with a stabilizing brace, a device that replaces a stock and fastens the rear of the gun to the arm. These firearms were quite contentious for a long time. The ATF could not decide if they were actually Short Barreled Rifles, which are rifles with a barrel shorter than sixteen inches. This is important because a Short Barrel Rifles are regulated by the National Firearms Act, meaning that someone needs to register for a NFA tax stamp (previously incorrect I called that an FFL) with the federal government.
After long deliberations the ATF decided that these guns are, in fact, Short Barrel Rifles, and subject to Short Barrel Rifle rules. This was a bit of a reversal, because the ATF previously said that such braced pistols would not be classified as Short Barrel Firearms. The ATF originally said using a brace as a stock is changing the intended use such that the firearm would be regulated by the NFA, but that simply having a gun with a brace would not be construed as designing or manufacturing a Short Barrel Rifle. The linked letter is a clarification letter released in 2017 to clear confusion an open letter the ATF released in 2015. Now, six years after the original letter saying there were legal to own but not misuse, the ATF released its final rule regarding braces. The rule essentially states that braces are allowed, but if a brace could be used as a stock than it is a stock. The only braced pistols not considered Short Barrel Rifles are one that cannot feasibly be used as a stock. The result of this ruling is that all owners of braced pistols were considered to be committing a felony. The ATF did institute a four-month long amnesty program where one could get a tax stamp for free making the crime null, but after that every person who kept their pistol is breaking federal law.
Since the ATF took years and years to decide this rule, they were sold on the civilian market for a long time so there are plenty of owners. The ATF said in the Final Regulatory Impact Analysis, page 11, that there are approximately 1.4 million firearms owners with stabilizing braces. They placed the actual number of braces at between 3 and 7 million devices. It may come as a shock that of these, only 250,000 weapons were registered as Short Barrel Rifles. That is the total number of guns, so it should be compared to between 3 and 7 million firearms in total. That is not the whole story though, as the Congressional Research Service put the count much higher at between 10 and 40 million devices estimated sold to civilians. If the ATF is correct than they were able to register between 3.6 and 8.3 percent of firearms. If the Congressional Research Service is correct then between 2.5 percent and 0.6 percent of these firearms were actually registered.
We can learn a lot from this, especially about how effective the National Firearms Act would be as a regulatory tool. I have seen many people say “The NFA stopped machine gun crime, why can’t it stop semiautomatic guns too?” This is a really hard comparison to make because the NFA was a really expensive tax (about $4000 at the time it was enacted) on an equally expensive and rare gun. The Thompson company did not like that criminals were very visibly handling their guns, which were intended primarily for police and military. Many of these guns were stolen from the police and were not very feasible for civilians to own, which is why they were notoriously used by criminals who could pilfer them. Thus, adding an expensive tax to an already hard to find weapon was the final nail in the coffin as far as criminal use goes.
This comparison does not hold up well to AR-15s. AR-15s are in widespread use by a large number of shooters, about 20% of all gun owners. It is used at the range, in competition, for home defense, and in hunting. It is by far the most owned rifle by gun enthusiasts. There are also an estimated 20 million in circulation compared to the estimated 20,000 Thompson guns manufactured when the NFA was passed, most of which were owned by military police. In other words, there is no good way to deduce what would happen to all the AR-15s if we banned them or semiautomatic weapons in the National Firearm Act from what happened when machine guns were banned. A much better comparison is braced pistols. There are tens of millions in circulation, they were added to the National Firearms act in very recent history, and they even had an amnesty period as previously mentioned. That gives us a rough comparison to what would happen if AR-15s (just AR-15s and not the myriad of other semiautomatic guns) were added to the list of NFA regulated items with a free tax stamp.
The results of that comparative deduction? Near complete noncompliance on the part of gun owners. Even the best estimates that 8% have been registered would not regulate the vast majority of devices. If the lowest guess of 3 million was correct than there would be 2.75 million devices remaining. That is when there is no forced buyback, ownership is completely allowed to remain once registered, and the tax stamp is free. This impies that if there was forced buy back or money had to be paid than compliance would be even lower. Even if we did try to regulate the 20 million ARs estimated to be in the US, that would be 80 times the amount of forms the ATF just accepted for pistol brace amnesty, and those wait times are already about 8-9 months instead of 45 days as the ATF say they should be.
What lessons can we take from the pistol brace rule? If we did want to regulate more firearms directly through the bureau we would have to fund the ATF a lot more. Throwing that many applications at the bureau without having the funding and manpower to process it would just short circuit other work they are doing. The second lesson is that we either need to legislate with firearm owners or against them. If we can’t find a large contingent of gun owners willing to craft legislation with us, the only option is to set aside enough money to force repossession. I have doubts about schemes to tax firearm owners or require insurance based on ownership as a deterrent won’t work because we have no national gun registry to track down all the owners. That would amount to the cost of hiring a PI for every single one of the 20 million AR-15s in the US just to find them all, again just AR-15s and not the large number of other semiautomatic rifles that are equally destructive. That in mind, the only effective way to remove firearm ownership without the will of the owner is by force, otherwise they will be kept at home and shot in private while gun violence continues unabated and a black market flourishes. I know many are tempted to say we should be as draconian as possible to stop them at all costs, but such policies have history of targeting people of color while doing nothing to reduce gun violence. The third lesson is that even in these cases, there are policy organizations that will fight regulation. It didn’t need a whole section because it isn’t part of the comparison, but there are already injunctions preventing these rules from applying to all Americans. These injunctions cover every rank-and-file member of the Firearm Policy Coalition and Maxim Defense’s customers from the new rule. In response, the Firearm Policy Coalition released a statement that they were offering reduced price memberships that retroactively extend to a year before the injunction date for a few days.
I wanted to bring this situation to everyone’s attention because of how often I see amending the National Firearm Act proposed as a solution. It is something that sounds good in concept but has so many logistical leaps required to make that regulation possible. At the end of the day, crafting a law we could get gun owners to comply with would be much easier than trying to force compliance for such a large class of guns. I understand many disagree with that sentiment, but if the plan is to make the ATF process tens of millions of applications and not take 100 years to hold people to account, then we should figure out how to do that too and not act like because the NFA fixed a small but disruptive gun issue it will automatically fix our current gun problem that is very different.
edit: I previously said an FFL license was needed to own an NFA item. This is incorrect, an FFL is needed to sell NFA accessories such as silencers, but an NFA tax stamp is what allows ownership.