Brian G. Mattson is a public theologian, Senior Scholar of Public Theology for the Center for Cultural Leadership, and adjunct professor at Westminster Theological Seminary. He holds a Ph.D. from the University of Aberdeen, has written several books, and lectures on theology and culture.

I am an American citizen enthusiastic about the Bill of Rights, including the 2nd Amendment. As a citizen I must first register my objection to the rule-making process itself: namely, concerned citizens are at an inherent disadvantage having to provide public comment directly to the governmental agency seeking to make them felons by their proposed rule. This conflict of interest or power disparity will inherently distort the true levels of opposition to the proposed rule, given that a vast number of gun owners and enthusiasts will be reluctant to “signal” themselves as out of compliance with the proposed rule. It is, nevertheless, my civic duty to comment.

I have grave concerns about BATFE’s newly proposed rule (Docket Number ATF 2021R-08) regarding “stabilizing pistol braces.” Allow me to summarize them, and then more fully explain each in turn.

1. AR-15 “pistol” variants clearly fall within the definition of “common use” under District of Columbia v. Heller.

2. AR-15 pistol variants are not “especially dangerous and/or unusual weapons.”

3. ATF’s claims about the public benefit of this rule are simply mistaken.

4. The proposed rule’s “Options for Affected Persons” are ineffective and unduly burdensome on law-abiding citizens.

5. ATF’s proposed rule is prima facie ineffective unless the component itself (the “stabilizing brace”) is regulated as an NFA item, thus making it more difficult to obtain; however, ATF admits that “The GCA and NFA regulate ‘firearms’ and, with limited exceptions, do not regulate individual components.”

Explanation:

(1) District of Columbia v. Heller clearly upheld a citizen’s right to keep and bear firearms in common use. The Bureau’s own background summary reveals that at minimum 3 million “stabilizing braces” are in circulation, and this is almost certainly an underestimation. SB Tactical, the most popular manufacturer of stabilizing braces, claims to have manufactured 3 million braces alone. The addition of other popular manufacturers would significantly revise the number upward.

Moreover, in ATF’s OMB Accounting Statement, they claim that the rule would affect “1.4 million purchasers of AR pistols.” That number is obviously incomplete. It may refer to purchasers of fully built, retail purchases of AR pistols, but leaves out the millions of gun enthusiasts who purchased a stabilizing brace to incorporate into other gun platforms.

The sheer numbers of these weapons leaves no doubt that AR pistol variants are very much in “common use.” Anyone familiar with the firearms industry knows that they are in common use. The very fact that ATF has proposed this rule demonstrates that they know these weapons are in common use. What is uncommon is criminal use. (More on that under [3] below.) For now, under Heller, these weapons are not “unusual” or “rare” in any sense of those terms, and should therefore be free from burdensome governmental infringement.

(2) The Bureau states that the NFA was passed to regulate “gangster” type weapons, which were viewed as “especially dangerous and unusual.” It is not a self-evident fact that AR-15s of any type are “especially dangerous.” What is self-evident is that they are not unusual. The Bureau is well-aware that a typical AR-15 caliber is significantly smaller than most hunting ammunition, a fact that by itself refutes the notion of “especially dangerous.” One might counter that muzzle velocities of AR weapons (often exceeding 3,000 feet per second) renders a weapon “especially dangerous,” but that raises an insoluble problem. ATF is ostensibly concerned about shorter barrel lengths; yet shorter barrel lengths reduce muzzle velocity and effective firing range, thus making them less, not more, dangerous. It is simply not cogent as a matter of logic and law why Congress and Federal agencies wish to make the less dangerous weapon subject to burdensome regulations; it directly contradicts the stated purpose of the NFA, which they admit regulates “especially dangerous and unusual” weapons.

(3) The Bureau’s claims about the public benefit of this proposed rule are mistaken. The OMB Accounting statement asserts that the rule: “Prevents manufacturers and individuals from circumventing the requirements of the NFA.” But the rule does not prohibit the manufacture of pistol stabilizing braces; nor does it subject such braces to NFA regulation. The rule, in other words, does nothing to make the production of AR pistols more difficult. Therefore, it “prevents” nothing; all it does it put ink on some paper. This may, by definition, prevent a law-abiding citizen from utilizing a pistol stabilizing brace; but in the incredibly rare event of a criminal using such a weapon, it is unlikely that a person bent on violence will be deterred by the proposed rule.

Secondly, the OMB statement asserts that the rule “Enhances public safety by reducing the criminal use of such firearms, which are easily concealable from the public and first responders.” Given the observation in the foregoing paragraph, this is simply mistaken. It does nothing to “reduce the criminal use of such firearms.” It is still perfectly legal to buy an AR pistol variant without a stabilizing brace, and perfectly legal to buy a stabilizing brace. Nothing has been proposed that would actually reduce the (newly) criminal activity of putting the two together. Furthermore, the notion that an AR-15 pistol variant is “easily concealable” is ridiculous. It is not. This is why such weapons are rarely used in crime, and the weapon of choice in the vast majority of crimes is a handgun. The Bureau is well-aware of this fact.

The Bureau raises two examples of AR-15 pistol variants being used in “mass shootings.” First, these events are irrelevant unless the Bureau can establish that the pistol brace involved in those shootings somehow made the weapon more dangerous than a handgun or a 16-inch rifle would have been in those circumstances. ATF should not be allowed to simply assert this as a fact. Second, the fact that the Bureau appeals to two incidents is quite revelatory. Recall for a moment the Bureau’s own (certainly low) numbers: 3 million pistol braces; 1.4 million purchasers of AR pistol variants. Millions of people “keep and bear” AR pistol variants and there are two examples of criminal use? This would suggest to me that there is no acute public health crisis to precipitate the intrusive infringement of the proposed rule.

(4) The proposed rule makes law-abiding citizens retroactive felons. There is no “grandfather” arrangement proposed. This is intolerable as a matter of law; no citizen, having engaged in good faith to legally purchase a firearm should be retroactively rendered a felon by fiat. Moreover, the proposed “Options for Affected Persons” has zero chance of success. Leaving aside the paternalistic language (“we want to help you with compliance”) and options seemingly drafted in such a way as to infuriate the populace (e.g., “destroy the firearm”), the Bureau will quickly find itself, should the rule go forward, tasked with actively seeking out millions of citizens who refuse to comply. As the Bureau is likely aware, a scheme in New Jersey to “buy back” standard-capacity magazines netted the state zero magazines. If gun-owning citizens refused to part with their magazines, the likelihood of them parting with their AR-15s is even less.

(5) Finally, the Bureau is clearly frustrated in its task of enforcing the requirements of the NFA, and complains that the firearms industry is “circumventing” the NFA with the use of stabilizing braces. I understand their frustration. However, the problem is not the industry; the problem is the NFA itself and the statutory limitations it places on the ATF. The Bureau admits that the NFA does not give jurisdiction to regulate (most) individual firearm components—they cannot prohibit the manufacture of a stabilizing brace or effectively prohibit someone from utilizing one on their personal weapon. Rather ironically, the proposed rule represents ATF attempting to circumvent their own statutory limitations.

In sum, AR-15 pistol variants are in common use; they are not “especially dangerous or unusual”; there is no acute public health interest in regulating them under the NFA; law-abiding citizens of this country should never be retroactively declared felons by fiat; and as a simple matter of fact, the rule faces very little possibility of actual compliance. It is thus impractical and an example of bad public policy.

I strongly oppose the proposed rule, and encourage the Bureau to lobby Congress to abolish the real source of this longstanding institutional problem: the National Firearms Act of 1934.