As a group, gun owners have been conditioned to be pretty wary of the Bureau of Alcohol, Tobacco, Firearms and Explosives. That said, the recent tumult surrounding “pistol braces” has us even more anxious than usual. These braces are devices designed to help people operate large handguns based on familiar platforms such as the venerable AKM and AR-15. This whole mess relates to the administrative agency’s attempts to shoehorn these arms into the National Firearms Act, a terrible law wrought with hidden contradictions.
As initially conceived, the NFA sought to ban virtually all “concealable” firearms. Congress, recognizing that it did not have the authority to enact such a ban outright, attempted to achieve the same objective through the NFA’s prohibitively expensive taxation and registration scheme.
At first, the definition of an NFA-restricted firearm included any “pistol, revolver, shotgun having a barrel less than sixteen inches in length, or any other firearm capable of being concealed on the person.” Language pertaining to short-barreled rifles was to be explicitly added as well. The phrase “any other firearm capable of being concealed on the person” makes the intent of the bill clear: the law targeted all small, concealable firearms, be they pistols, shotguns, rifles, or exotics that defy simple classification.
Statutory minimum lengths for long guns (and their barrels) were a natural and necessary accompaniment to the NFA’s handgun ban. Any restriction upon handguns would be impotent if a small rifle or shotgun were a legal alternative to a pistol. It would be trivially easy to circumvent a handgun ban by chopping down or otherwise modifying a long gun to be of a concealable size.
Here’s where things get weird: pistols and revolvers were removed from the language of the NFA before it became law. That is, a bill that had initially sought sweeping restrictions on all small firearms ultimately exempted the most popular and prevalent small firearms in existence. With that exemption, Congress punted on its original objective: A ban on concealable firearms that exempts handguns is like a ban on alcohol that exempts beer and liquor.
And yet, the restrictions on small shotguns and rifles remained in the enacted language of the NFA. In other words, the current restrictions on small rifles and shotguns are intended to stop people from circumventing a handgun ban that never actually existed.
In that sense, the NFA’s minimum size rules (and the ATF’s interpretations thereof) are an absurd anachronism. Those restrictions originated in a time when Congress thought it could effectively ban all small, concealable firearms, including handguns, and minimum size rules for rifles and shotguns would have been necessary to close an obvious loophole.
But even in 1934, exempting handguns from the NFA was necessary to secure sufficient support for its passage. And with the demise of the handgun ban, the minimum size rules now serve about the same function as a cancer-prone vestigial organ: They don’t accomplish anything useful, but they sure can get you into trouble.
Moreover, in recent years, the Supreme Court has not only affirmed, but underlined as fundamental the right to own handguns for lawful purposes, including self-defense. In other words, the Supreme Court has affirmed the right to own, above all else, the smallest, most concealable firearms of them all. These are arms that the overwhelming majority of gun owners depend on to protect their lives, families, and property.
All this, and yet, the ATF aggressively continues to “interpret” and enforce the NFA’s arbitrary and capricious restrictions on small firearms. Restrictions, mind you, designed to prevent you from owning the functional equivalent of a handgun — the very arm the Supreme Court has recognized lies at the very core of Second Amendment protection. In their intense and perverse crusade against small firearms, the ATF has pursued an extra-constitutional course of action. The agency inconsistently regards small firearms as verboten based on bureaucratic interpretations and determinations that are arbitrary, fluid, idiosyncratic, and unpromulgated.
The ATF, founded in 1972, is stuck in 1934: a time when Congress thought that effectively banning pistols for all but the most wealthy of people was a stellar idea. This is neither the legal nor cultural reality of today. On those grounds, all of the NFA’s restrictions on “concealable” firearms should be readily recognized as unconstitutional infringements upon the very center of our fundamental right to keep and bear arms.
The recent mess relating to “pistol braces” and “large handguns” isn’t a simple matter of a bloated administrative agency overstepping its boundaries. It’s more than that. The sustained assault on small firearms is a rogue agency’s wanton disdain for the rights of the people — and that disdain is fueled by the vestigial remains of a law that should have never been passed. The NFA, in its entirety, is a leprotic mark on the history of our nation. People shouldn’t be in peril of prison time for the shape or length of the arms we choose to protect our families with. The only adequate solution is the NFA’s outright repeal.
Mark Houser writes independently on firearms policy and the right to bear arms. He also shares his work via Twitter @MarkLivesThings. Matthew Larosiere is the Director of Legal Policy for Firearms Policy Coalition. He can be found on Twitter @MattLaAtLaw.
