The Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) published a new rule that went into effect Tuesday, reclassifying millions of certain styles of pistols as short-barreled rifles and telling gun owners they have 120 days to register or surrender them or face felony charges — which prompted Texas gun rights advocates to immediately file multiple lawsuits.
At issue is a federal law known as the National Firearms Act (NFA) that involves short-barreled rifles, which it defines as a weapon with a barrel of fewer than 16 inches in length “designed or redesigned, made or remade, and intended to be fired from the shoulder.”
A stabilizing brace is a type of attachment for firearms that, as opposed to a regular rifle stock, allows the gun to be held and aimed more accurately with one hand.
These braces have enabled millions of firearms to be built under the designation of a handgun as opposed to a rifle, and handguns are not required to be registered under the NFA.
Litigants point out in their filings that the ATF approved these braces over a decade ago after a review of the part led the agency to determine that it “does not convert that weapon to be fired from the shoulder and would not alter the classification of a pistol or other firearm.”
Fast forward to the present, the Biden administration is forcing the ATF to reverse that decision and issue a rule determining that the brace now constitutes a regulated NFA weapon.
Texas gun rights advocates filed a flurry of federal lawsuits challenging the rule, with Amarillo resident Darren Britto joining two other plaintiffs in a challenge filed in the Northern District of Texas by attorneys with the Wisconsin Institute for Law and Liberty, styled Britto v. ATF, and another similar lawsuit was filed by attorneys with the Texas Public Policy Foundation (TPPF), Watterson v. Garland, in Texas’ Eastern District, seeking to declare the rule unconstitutional.
“I’m not a lawyer. I don’t know the legalese portion of it, but essentially, there’s about 40 million braces out there. I own one of those braces on on my particular firearm and it’s, ATF, what they’re doing is arbitrary. It’s not going through the proper channels.
“These arbitrary rules are just an incremental step in eroding the Second Amendment because what happens is, now to have the brace in its current configuration, if I don’t want to register it, I have to modify it, which can be cost exorbitant," Britto said.
Gun store owner and Second Amendment rights activist Michael Cargill expressed confidence that his recent victory before the U.S. Fifth Circuit Court of Appeals in Cargill v. Garland to strike down a Trump-era rule banning bump stocks has established case precedent favoring gun owners.
“This is a ‘common-use’ gun which a lot of Americans possess,” Cargill said, referencing language used in the landmark Second Amendment case District of Columbia v. Heller, where the court held the Second Amendment protects an individual’s right to bear arms “in common use at the time” and struck down a D.C. law limiting the possession of a handgun within the owner’s home.
Cargill said the ATF was briefing gun stores on the effects of the new rule the day it went into effect. According to him, the ATF said that if gun owners placed their firearms in a trust before Tuesday, they would be allowed to register the gun under the NFA within 120 days and the ATF would waive the standard $200 tax.
Gun owners who did not place their firearm in a trust before the rule went into effect must register the firearm directly, which limits the gun owner’s ability to allow others to shoot the gun.
Cargill also explained how in states that prohibit short-barreled rifles, gun owners will be forced to destroy their pistol brace or surrender them to authorities, and any gun owner in Texas who fails to register their gun in 120 days could face felony charges.
“So many people are unaware this is happening,” Cargill added. “If they are stopped by police, use their gun for self-defense, they will find out they are in possession of a felony.”
He noted this as an example of why he is urging the Texas Legislature to pass legislation that prohibits local and state law enforcement from aiding federal agents in enforcing laws like this that people are unaware of.
Cargill’s recent court victory in court contained nearly identical circumstances.
In the en banc 13-3 decision, the appeals court determined that the rule expanding the meaning of a “machine gun” to bump stocks was an illegal extension of the statutory definition.
The Fifth Circuit noted that the ATF had previously reviewed bump stocks and determined they were not machine guns, but the executive branch “short-circuited” the legislative process by sidestepping Congress to enact law through administrative rule-making.
The Britto case argues just that, writing, “The new rule unlawfully usurps Congressional authority by significantly expanding the definition of ‘rifle’ under federal law and, with it, imposes potential criminal liability on millions of Americans exercising their Second Amendment rights.”
The similar elements in each case are why Cargill feels the new plaintiffs will prevail.
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