A response to the BATFE and its proposed rulemaking on Pistol Braces

As I’m sure you know, the Bureau of Alcohol, Tobacco, Firearms, and Explosives recently published a proposed rule in the Federal Register. In it, the ATF purports to “Objectively” define the criteria under which a braced pistol magically becomes a Short Barreled Rifle.

I don’t think “Objective” means what they think it means, however, since the criteria they set forth are anything but. They are open to interpretation by individual agents, depending on the circumstances… which is the very definition of SUBjective.

The ATF is asking for public comment (as they are REQUIRED to) but is only accepting them until Midnight (Eastern, of course) on January 4th, 2021. So go to THIS page and leave a comment. Be POLITE. Be PROFESSIONAL. DO NOT MAKE THREATS or leave profanity-laden rants- they will ignore those. Make sure you say what you want to say in 5000 characters or less- I had to post an edited version of my letter (which you can read below) and upload the full version as an attachment.

Let your voice be heard now, while you have a chance. Remember the M855 debacle- our 80,000 comments caused the ATF to back down on an importation ban… maybe we can do the same again. One thing is sure, though- if you do NOTHING, then you have NO CHANCE of having an effect.

Feel free to use parts of this if you want- just be sure to change some things and put them in your own words.

To: Bureau of Alcohol, Tobacco, Firearms, and Explosives

From: Michael Kreitzer, Budget Guns and Gear Reviews

RE: Docket Number ATF 2020R-10

To Whom it May Concern,

                I’m writing this letter as a comment in response to the document in the Federal Register entitled “Objective Factors for Classifying Weapons with “Stabilizing Braces””.

                I must strongly encourage the BATFE to abandon the course of action laid out in the document. In summary, I believe the proposed rulemaking to be an unconstitutional infringement on the Second Amendment rights of millions of law-abiding gun owners.

BATFE’s back-and-forth “first-it’s-legal-and-then-it-isn’t-but-now-it-is-and-now-it-isn’t approach to the pistol brace issue has left the firearm owning community in a puzzled state on many occasions, and this latest foray into the matter is, unfortunately, apparently more of the same.

First, let’s deal with the repeated misuse of the word “Objective”.  Merriam-Webster defines Objective as: “Expressing or dealing with facts or conditions as perceived without distortion by personal feelings, prejudices, or interpretations.” Dictionary.com says much the same, defining the word as: “Not influenced by personal feelings, interpretations, or prejudice; based on facts; unbiased.” Vocabulary.com agrees with them both, saying that Objective means: Undistorted by emotion or personal bias; based on observable phenomena.”

There is a key concept that is common to all three definitions. In order to be Objective, an opinion must be based on concrete, observable, not-open-to-interpretation criteria. In this case, the proposed rulemaking lacks ANY concrete criteria. NOTHING is clearly defined. The criteria by which BATFE proposes to determine whether a given pistol with an attached stabilizing brace have no concrete parameters, therefore they are NOT, in fact, Objective. They are SUBjective. Subjective is defined as “Modified or affected by personal views, experience, or background” by Merriam-Webster, as “Pertaining to or characteristic of an individual; personal; individual” by Dictionary.com, and as “Taking place within the mind and modified by individual bias” by Vocabulary.com… in other words, reliant SOLELY on what the individual feels about a given subject on a given day, without clear, concrete definitions to guide the determination.

The proposed rulemaking is NOT Objective at all, and is, as defined above, Subjective. It could even be called Arbitrary and Capricious. Let’s explore what I’m talking about item by item. (My comments are in BOLD print.)

  • Type and Caliber. A large caliber firearm that is impractical to fire with one hand because of recoil or other factors, even with an arm brace, is likely to be considered a rifle or shotgun.
    • What, exactly, is “large caliber”?
    • How, exactly, is “recoil” measured? The force of recoil could be totally different for different people, even in the same pistol. For example, a bodybuilder could have NO trouble with one-handing a 12-gauge shotgun while a person with limited grip strength might have difficulty with a .380.
  • Weight and Length. The weight and length of the firearm used with the stabilizing brace. A firearm that is so heavy that it is impractical to fire or aim with one hand, or so long that it is difficult to balance the firearm to fire with one hand, is likely to be considered a rifle or shotgun.
    • How heavy is too heavy? How long is too long? These criteria are also subjective- using the hypothetical body builder and arthritic persons above, a pistol that one could easily handle could pose great difficulty for the other.
  • Length of Pull. The “length of pull” refers to the distance from the trigger to the point at which a stock meets the shoulder. This is a measurement for rifles and shotguns used to accommodate shooters of different sizes. Because an arm brace need only reach the forearm, the distance between the trigger and the back of the brace is generally expected to be shorter than the distance between the trigger and the back of a stock on a weapon designed and intended to be fired from the shoulder. This measurement is not necessarily determinative of the intent of the manufacturer but is used in making an evaluation of the firearm. If a brace is of a length that makes it impractical to attach to the shooter’s wrist or forearm, then that may demonstrate that it is not designed as brace but rather for shoulder fire.
    • What length of pull is permitted? Is the current benchmark of 13.5 inches going to remain?
    • Different shooters have forearms of different length and thickness. Does a 6 foot 6 inch goon get to have a longer length of pull than a 5 foot four inch weakling?
  • Attachment Method. The method of attachment of the stabilizing brace, to include modified stock attachments, extended receiver extensions, and the use of spacers. These items extend the distance between the trigger and the part of the weapon that contacts the shooter, whether it is a stock or stabilizing brace. Use of these items indicates that the weapon is designed and intended to be fired from the shoulder because they extend a stabilizing brace beyond a point that is useful for something other than shoulder support.
    • Which attachment methods are allowed, and which are Verboten?
  • Stabilizing Brace Design Features. The objective design features of the attached stabilizing brace itself are relevant to the classification of the assembled weapon, and include:
    • The comparative function of the attachment when utilized as a stabilizing brace compared to its alternate use as a shouldering device;
    • The design of the stabilizing brace compared to known shoulder stock designs;
      • So, if it LOOKS LIKE a stock, it’s a stock?
    •  The amount of rear contact surface area of the stabilizing brace that can be used in shouldering the weapon as compared to the surface area necessary for use as a stabilizing brace;
      • How much surface area is permitted? How is the area measured? Does it include any gaps at the rear of the brace, or is it just the solid material?
    • The material used to make the attachment that indicates whether the brace is designed and intended to be pressed against the shoulder for support, or actually used on the arm;
      • What materials are acceptable and what are not? Is there a certain amount of required “flex”, and if so, how much? How is this to be measured?
    • Any shared or interchangeable parts with known shoulder stocks; and
      • Which design features can it share and which must be proprietary to the brace?
    • Any other feature of the brace that improves the weapon’s effectiveness from the shoulder-firing position without providing a corresponding benefit to the effectiveness of the stability and support provided by the brace’s use on the arm.
      • Aim Point. Appropriate aim point when utilizing the attachment as a stabilizing brace. If the aim point when using the arm brace attachment results in an upward or downward trajectory that could not accurately hit a target, this may indicate the attachment was not designed as a stabilizing brace.
        • How is this determined? What testing method?
      • Secondary Grip. The presence of a secondary grip may indicate that the weapon is not a “pistol” because it is not designed to be held and fired by one hand.
        • What is a “secondary grip”? Is it an angled foregrip, a vertical foregrip, a handguard, a hand stop, a barrel shroud, a magazine well forward of the trigger?
      • Sights and Scopes. Incorporation of sights or scopes that possess eye relief incompatible with one-handed firing may indicate that the weapon is not a “pistol” because they are designed to be used from a shoulder-fire position and are incompatible for the single-handed shooting that arm braces are designed and intended.
        • Is BATFE regulating the technique used to fire a pistol? What if a “cheek weld” is used for a more precise long range shot without pressing the rear of the brace against the body in any way?
      • Peripheral Accessories. Installation of peripheral accessories commonly found on rifles or shotguns that may indicate that the firearm is not designed and intended to be held and fired with one hand. This includes, but is not limited to, the installation of bipods/monopods that improve the accuracy of heavy weapons designed and intended to be fired from the shoulder; or the inclusion of a magazine or drum that accepts so many cartridges that it increases the overall weight of the firearm to a degree that it is impractical to fire the weapon with one hand even with the assistance of a stabilizing brace.
        • So, using a bipod on a bench pistol makes it an SBR? Having a large magazine magically makes a pistol into a rifle?

And none of this even addresses the issue of registering a pistol as an SBR under the NFA. Frankly, I believe that the ENTIRE POINT of this exercise is to frighten law-abiding gun owners into registering their legal pistols as Short Barreled Rifles.

Without CLEAR, CONCISE, CONCRETE definitions that do not vary from agent to agent, day to day, and case to case, the above-proposed rulemaking is anything BUT Objective. It IS Subjective, Arbitrary, and Capricious. Poor policies carry the force of law (without the benefit of legislation, I must add) and have the potential to turn innocent gun owners into felons. TERRIBLE policies (not to mention morally repugnant ones) use the same standard to identify an illegal SBR as is used to define art and pornography: “I can’t tell you what it is, but I know it when I see it.”

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