Friday, June 11, 2021

The ATF's new regulations may effectively ban most AR-15 pistols


The agency has issued for comment (for 90 days) a proposed new set of regulations that are cause for a good deal of concern.

I'm not going to discuss the Gun Control Act (GCA) of 1968, or the provisions of the National Firearms Act (NFA) of 1934.  At this point, both are settled US law, whether we like it or not, whether they're "good laws" or not, and no matter what we might prefer instead.  They're givens.  If we don't like them, we are free to lobby to change those laws;  but unless and until Congress does so, they stand as they are.

The ATF's job (again, whether we like it or not) is, among other things, to enforce their provisions.  However, the way in which they do so (particularly when some of the provisions of those laws require regulatory interpretation in order to be applied to actual firearms and cases) is open to discussion.  In its proposed new regulations, the ATF has put forward a set of criteria to determine whether or not a so-called AR-15 "pistol" is, in fact, a handgun, or whether it's a thinly disguised short-barreled rifle (which is subject to regulation under the NFA).

This is where things get complicated.  The first and most important new restriction proposed for AR-15 pistols is that the overall length of the firearm, from the muzzle to the rear of the buffer tube (with or without a pistol brace), may not exceed 26".  This would allow for a typical barrel length of no more than 7½" without exceeding that overall length.  That immediately disqualifies a very large proportion of the AR-15 pistols out there.  Due to the characteristics of the 5.56x45mm cartridge (the usual chambering of most AR-15's), a longer barrel is needed to burn most of the powder charge propelling the bullet.  A 7½" barrel simply isn't long enough to accomplish that (hence the very large muzzle flash and deafening report from such barrels, as the unburnt powder is consumed outside the barrel after the bullet is on its way).  Most AR-15 pistols in that chambering that I've seen have 10½" or 11½" barrels for that reason.

Other chamberings suffer from a similar limitation, although some of them less so than 5.56mm.  For example, the 300 AAC Blackout round was designed from the outset to burn all its powder in the first 9" of travel.  Many 300 BLK pistols therefore have 8" to 10½" barrels, to take advantage of that.  However, they would fall afoul of this new proposed regulation, and force their owners to adopt a barrel shorter than that for which the cartridge was designed.  The Russian 7.62x39mm cartridge can work out of a shorter barrel, but is also subject to enlarged muzzle flash and uncomfortable blast when fired from one.  By enforcing an unrealistically short barrel length, the ATF would make it much less pleasant (indeed, actively unpleasant) to shoot such weapons, and would also render them ballistically less effective.

The agency goes on to list a point scale for evaluation of whether or not an AR-15 pistol is intended to be fired as a handgun, or from the shoulder.  The point scale is, of course, subjective:  the agency has determined for itself what attributes earn how many points.  In doing so, a number of problems reveal themselves.  For example, the existence of so-called "iron sights" gives the weapon a single point;  the use of a red dot sight gives it two points (out of only four necessary for it to be classified as a shoulder-fired weapon).  How, precisely, is one intended to accurately shoot any weapon without some form of sight?  If it's negatively evaluated on the grounds that it's even minimally equipped to hit its target, what sense does that make?  It seems counterproductive at best.

A final problem is the disposition of such weapons if they are ruled by the ATF to be short-barreled rifles, rather than handguns.  Several options are offered, all of which involve added expense to the owner, either by modifying it to bring it into compliance with the new regulations, or disposing of it and losing his investment in it.  All appear to me to involve either a forced expenditure on modification of, or an actual "taking" of, private property by the federal government - property that was formerly legal to possess, because the new regulations were not then in force and did not prohibit its features.

Such a "taking" falls under the Fifth Amendment to the US Constitution.

The "Takings Clause", the last clause of the Fifth Amendment, limits the power of eminent domain by requiring "just compensation" be paid if private property is taken for public use ... The federal courts ... have shown much deference to the determinations of Congress, and even more so to the determinations of the state legislatures, of what constitutes "public use". The property need not actually be used by the public; rather, it must be used or disposed of in such a manner as to benefit the public welfare or public interest. One exception that restrains the federal government is that the property must be used in exercise of a government's enumerated powers.

If the ATF confiscates, or forces the modification or destruction, of a non-conforming weapon under its new regulations, I think that would be a very clear "taking" of private property, invoking the Fifth Amendment;  yet the regulations contain no provision for compensating its owner.  The value of such a weapon might be considerable, certainly several hundred dollars, and possibly several thousand for high-end models.  There are literally millions of them in circulation.  Where will the money come from to pay for them?  Are taxpayers expected to pay that?  If so, how?  Under whose budget?  Under what law to appropriate the funds?

My biggest objection is that the ATF's new regulations criminalize weapons that until now had been considered legal, whether by direct authorization from the ATF (for certain models of wrist brace) or by implication (due to their resemblance to already authorized models, and/or the ATF's years-long lack of any action to control them).  This is effectively a retroactive ("ex post facto") banning of a formerly legal item.  That's a problem in itself.

Ex post facto laws are expressly forbidden by the United States Constitution in Article 1, Section 9, Clause 3 (with respect to federal laws) and Article 1, Section 10 (with respect to state laws) ... Ex post facto criminalization is also prohibited by Article 7 of the European Convention on Human Rights, Article 15(1) of the International Covenant on Civil and Political Rights, and Article 9 of the American Convention on Human Rights ... American jurisdictions generally prohibit ex post facto laws...

Lawyers will split hairs about whether a departmental regulation (often authorized under a given law) is the same as a law (even though the former may have the same practical effect as the latter).  As far as I'm aware, courts have generally been skeptical about allowing bureaucrats the authority to change the wording, meaning or applicability of laws and regulations ex post facto.  If that's the case with the ATF's proposed regulations, I foresee a lot of litigation around that point, which could take years to sort out.

I think the obvious answer lies in one of the following solutions:

  1. The ATF "grandfathers" previously legal AR-15 pistols, allowing them to escape modification, confiscation or destruction by recognizing their formerly legal status (whether explicit or de facto), while prohibiting the manufacture or sale of new weapons that contravene the new regulations.
  2. Failing that, the ATF allows the owners of such pistols to register them as short-barreled rifles under the NFA, but waives the payment of the usual $200 tax to do so, thereby not penalizing the owners for what was formerly a legally possessed firearm.

Either would, of course, require registration of the firearm in question.  I don't like registration, as history has shown it to be all too frequently a precursor to confiscation;  but I doubt whether a solution can be found to this impasse that doesn't require it for at least the weapons under discussion.  I worry that such registration might be the camel's nose in terms of possibly expanding the registry in future to include more types of firearms - something I would regard as a grave threat to our Second Amendment rights.  Many gun rights activists see the ATF's latest efforts as a direct threat in that regard.

The proposed new regulations are open for comment for a 90-day period.  I strongly suggest that gun owners read them carefully, read the many articles out there discussing them, then (respectfully and politely) put their objections in writing, using the form provided online.  Our views may be ignored, but they'll be on the record;  and if there's an overwhelming preponderance of negative comments, the ATF may find it difficult to justify (in court or otherwise) why it proceeded to implement the regulations in question.  Certainly, such comments might provide grounds for a future administration to instruct the ATF to change its regulations once again, making them more tolerant and less oppressive.  One may hope...



LindaG said...

The liberals way of getting around the second amendment.

Arthur Sido said...

Many "Trust the system!" folks thought we had won a great victory last year when the ATF withdrew similar proposed regs on pistol braced weapons but it was clear then and now that the 2020 version was just a trial run. I encourage people to comment away but it won't stop what they are going to do and then we are in a position where millions of firearm owners are going to have to make a choice to either give in or become felons.

KingTooter said...

there's no more giving in - we are at the end of the road and the edge of the cliff -- it's time for people to pay the price

heresolong said...

The fact that every firearm made in the past 200 years starts out with 1/4 points towards being a "rifle" is the most ridiculous thing in this argument. Iron sights? Really?

The rest is just par for the course. The ATFE is going to do everything they can to restrict as much as they can. If the Administration had been smarter they would have nominated someone who was just as anti-gun as Chipman but not so visible. He would have been confirmed already and be busy dismantling the Second Amendment.

heresolong said...

My comment, FWIW


These regulations are disingenuous when they include the requirement that any firearm with iron sights is already 1/4 of the way to being classified as a rifle. Just about every firearm made in the past 200 years has some form of iron sights. And then to add red dot sights (gaining significant popularity amongst handgun shooters over the past few years) to upgrade that to halfway (2 points out of 4 necessary) is just idiotic. These regulations are clearly written to ensure that as many firearms as possible are classified as short barreled rifles, with the apparent purpose of making it as hard as possible for the average citizen to own firearms.

Uncle Lar said...

Has anyone even bothered to raise the question of whether there has ever been a recorded case of an AR pistol or SBR involved in the commission of a crime other than that of being in possession of an unregistered NFA weapon?

Jeff McPhate said...

I completely disagree with the ATF retroactively going after pistol brace ARs after approving the design HOWEVER, anyone who didn't see this coming was ignoring the obvious. I NEVER saw anyone on youtube using a pistol brace as a brace and firing the weapon one handed, but instead they were all shouldering the weapon and using it as an SBR. I kept wondering where all these SBRs were coming from and then found out these were "pistols" and those weren't shoulder stocks, they were "braces". Yeah, right. I remember when the Street Sweeper was declared a destructive device in 1994. The ATF was slow coming after these, but I'm not at all surprised. The trick will be how do they stop them now that there are millions out there. If any configuration remains legal, and other configurations are grandfathered but not registered, people will simply keep building them and claiming they are pre-ban. ARs are nothing if not modular.

Peter said...

Folks, we all know that these proposed regulations are inspired more by anti-gun sentiment than by an actual criminal problem. There's no point in re-hashing that argument ad nauseam. It's a fact of life.

I'm doing two things to prepare for what looks inevitable, right now:

1. I'm looking for relatively low-cost 7.5" barrels in the calibers I shoot from AR pistols. If I can find them, I'll retrofit them so as to be as legal as possible.

2. I'll fit long flash-hiders (XM177 style) to my AR pistol barrels, so that when pinned and welded, they measure 16" or longer in combination. That'll bring them into compliance.

I reckon many people will simply defy these regulations. That's their choice. However, if they're convicted of a felony firearms offense (which violating the regulations will almost certainly be), they'll lose their Second Amendment rights for life, quite apart from jail time and/or fines, and the cost of their lawyers. If that doesn't worry you, fine. It worries me!

The Lab Manager said...

I don't have a firearms collection by any means, but it's getting time for states to stick up for gun owners. A lot of these laws really simply need to be ignored. How many of these can realistically be enforced? Should a county sheriff or city police chief even bother when there are real criminals on the street that need to be locked up.

We know ATF is a Satanic agency and Republicans do little to punish them for their transgressions.

The left simply uses 'the law' to benefit their cause.

Paul said...

If you are not armed you are a slave.

The government wants all your money.

Remember those two and act accordingly.

Aesop said...

Judge Benitez' recent ruling in Miller may make any regulations concerning any AR-15 other than SBRs moot.

And, as noted, "takings" and ex post facto laws are moot from the get-go.

BATFE is liable to be dining soon, on their own undershorts.

Tree Mike said...

All the Commie states that have enacted unconstitutional (scary) gun bans have, at best, possibly as much as 10% compliance. With the populace becoming less trustful of the Dot Gov, I think they are going to have their hands full. There are so many millions of illegal, scary guns out there, there is no chance successful confiscation.

tsquared said...

I carefully research all the parts on my AR-9 to be compliant with the law. I even went with a "Tailhook" arm brace because it was not lumped in with the Blade or velcro strap brace that was under question. I have a 10.5" barrel because I wanted the extra 200fps over my 1911 9mm. I have had this pistol over 4 years. It is currently legal and needs to be grandfathered exempt from any SBR tax.

Bibliotheca Servare said...

If you pin and weld that flash hider, doesn't that just increase the length of the pistol? Wouldn't they classify the end of the flash hider as the end of the "muzzle" for measuring purposes? It'd be stupid or, rather, malicious, but that's what these people are. Stupid and malicious.

Fwiw, I don't own an AR pistol, I just care a great deal about the 2nd amendment, especially the "shall not be infringed" bit.

John T. Block said...

F-Troop can only write regulations, Congress must write laws. Anyone expecting ATF regs to make sense is as demented as Xiden is. They wish to make us all outlaws, so let the outlawry commence, with a vengeance. Read John Ross's book "Unintended Consequences", for helpful hints. They've got us surrounded, the poor bastards... I wonder if they go full stupid, how many of the top tier military units will side with the Constitutionalists, and bring their fancy toys with them....

Eric Wilner said...

The overall length thing raises a couple of questions.
First, if you take an ordinary pistol and install a 20" barrel on it, does it become an SBR with a 20" barrel and >26" overall length?
Second, how long will it take someone to create an AR-15 / AR-180 hybrid upper design that allows eliminating or at least radically shortening the buffer tube while using the same barrel, gas system, handguards, etc.?