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March 28, 2023

Fireworks at Congressional Hearing on ATF and Who Makes the Laws

By Larry Keane

There were fireworks at a Congressional hearing covering a critical topic not just to the firearm industry and Second Amendment supporters, but to all Americans. It wasn’t entirely unexpected.

The U.S. House Subcommittee on Crime and Federal Government Surveillance’s hearing titled, “ATF’s Assault on the Second Amendment: When is Enough Enough?” posed a simple question.

Who writes law in the United States? That begged other questions. Can government agencies go rogue and create sweeping regulations that turn law-abiding citizens into criminals? Or does law-making authority reside with the people through their duly elected representatives in Congress?

The Background

The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) promulgated a new Final Rule in January with drastic implications for millions of existing law-abiding gun owners. The agency unilaterally decreed that stabilizing arm braces attached to pistols are now defined as short-barreled rifles (SBRs) subject to registration under the National Firearms Act (NFA). That means owners who already legally purchased the firearm accessory must register their purchase, submit photos and fingerprints, pass an additional background check and alert local law enforcement that they possess one. If they don’t, they risk facing felony charges and imprisonment. The Congressional Research Service estimates there could be upwards of 40 million braces in circulation today.

Alex Bosco testified about how we got here today. The former Marine invented the forearm stabilizing brace in 2012 to help disabled veterans more safely participate in recreational pistol shooting.

“Since I began my business, I’ve made every effort to comply with all the rules and regulations set out by ATF. After submitting the original brace to ATF for review, ATF responded in writing stating that attaching a stabilizing brace – quote – would not alter the classification of a pistol or other firearm, and that – quote – such a firearm would not be subject to National Firearms Act controls,” Bosco explained. He added ATF has “repeatedly held that various pistol brace designs did not convert a pistol to a short-barreled rifle.”

That all changed once ATF reclassified stabilizing arm brace-attached pistols as SBRs, putting Bosco’s livelihood, and millions of other law-abiding Americans, at serious risk.

Whose Authority?

Subcommittee Chairman Rep. Pat Fallon (R-Texas) asked the central question of who writes law for the United States.

“Ever since Mr. Biden took office, his administration has actively sought to infringe on the Second Amendment and I’m deeply concerned about the ATF and their recent actions,” Rep. Fallon said. “This rule will effectively turn millions of law-abiding gun owners into criminals if they fail to comply even though Congress did not act. We didn’t pass any new criminal laws or penalties related to pistol stabilizing braces. We had unelected bureaucrats do it. That’s not the way this works.”

Rep. Chip Roy (R-Texas) echoed, adding that bureaucratic rulemaking is wrong under Republican and Democratic administrations.

“This should send shivers done the spine of all members under Article II,” Rep. Roy said. “And look, I don’t view this through the lens of being a Democratic administration. I didn’t like it when the Trump administration was doing stuff like this. Whether it was the bump stock ban – I didn’t like that either.”

Heritage Foundation’s Amy Swearer agreed the ATF rulemaking is Constitutionally problematic.

“Our Constitution is set up with a separation of powers. You have the Executive Branch, whose job it is to enforce the law and you have Congress who passes laws because Congress is held accountable to the people,” Swearer said. “No official at the ATF… is elected and held accountable through that process.”

The overreach by ATF may be rectified in due time if recent precedent plays out. The U.S. Court of Appeals for the Fifth Circuit overwhelmingly overruled the Trump administration’s ATF Final Rule, saying it overstepped its authority to classify bump stocks as “machineguns.” In 2021, the U.S. Supreme Court overruled the Environmental Protection Agency (EPA) Clean Power Plan in West Virginia v. EPA because the agency overstepped its authority with similar rulemaking without clear congressional authorization.

The ATF stabilizing arm brace rule could be headed toward a similar fate.

Know What You’re Talking About

Democratic lawmakers demonstrated they are uninformed about the arm brace accessory.

Democratic lawmakers used terminology like “high-powered,” “increasingly lethal,” and “weapons of war.” Rep. Sheila Jackson Lee (D-Texas) praised the ATF for usurping her congressional authority “to prevent…the misuse of stabilizing braces, which convert everyday firearms into killing machines.”

It was similar to when Rep. David Cicilline (D-R.I.) misidentified an arm brace, confusing it for a bump stock, during a previous debate.

Rep. Chuck Edwards (R-N.C), a Federal Firearms Licensee, asked Everytown for Gun Safety Senior Director for Policy Rob Wilcox about the accessory. “Will a pistol brace change the capacity of a firearm? Meaning the number of rounds?”

“No sir,” Wilcox responded.

“Will a pistol brace change the firing speed of a firearm?” Rep. Edwards continued.

“No sir.” Wilcox answered.

Rep. Edwards asked Bosco about the confusion.

“I think the problem is that a lot of people aren’t informed about what is and isn’t a pistol and what is and isn’t a rifle. It’s very nuanced,” Bosco replied. “A stabilizing brace is not a force multiplier.”

Gun Control Won’t Stop

The ATF pistol brace rule is yet another example of the Biden administration going beyond its authority to restrict the Second Amendment rights of law-abiding Americans. Gun control groups have grown frustrated that more hasn’t been done, while ignoring the criminals who are the ones committing violent crimes.

Manuel Oliver, whose son was murdered in the 2018 Parkland high school shooting, disrupted the committee hearing, was removed and subsequently arrested. Oliver also disrupted and was removed from a White House ceremony when President Biden announced several gun control executive actions.

The actions by gun control groups, Democratic lawmakers shaming companies for not doing their gun control bidding and the ATF overreaching its authority on the pistol brace Final Rule are a pattern. It shows the goal is not to hold criminals accountable. It’s about controlling law-abiding Americans.

You may also be interested in:

Firearm Industry Expert, Veteran Testifies Against ATF Overreach

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