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…

Peter