Deep Dive Episode 196 – Brace Yourself: Discussing The ATF’s Rulemaking On Forearm Stabilizing

The Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) in 2012 determined that forearm stabilizing braces for firearms serve a legitimate function and do not automatically subject a firearm to the strict requirements of the National Firearms Act of 1934. In December 2020, however, the BATFE proposed new regulations that could subject almost all firearms with forearm stabilizing braces to the NFA. On August 31, 2021, an expert panel joined us for a discussion on the proposed rule and how it fits into wider debates over agency rulemaking on controversial issues.

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Transcript

Although this transcript is largely accurate, in some cases it could be incomplete or inaccurate due to inaudible passages or transcription errors.

[Music and Narration]

 

Introduction:  Welcome to the Regulatory Transparency Project’s Fourth Branch podcast series. All expressions of opinion are those of the speaker.

 

On August 31, 2021, the Regulatory Transparency Project hosted a virtual event titled “Brace Yourself: Discussing the ATF’s Rulemaking on Forearm Stabilizing Braces.” The following is the audio recording from that event. We hope you enjoy.

 

Jack Derwin:  Hello, and welcome to this Regulatory Transparency Project virtual event. My name is Jack Derwin, and I’m assistant director of RTP at the Federalist Society. As always, please note that all expressions of opinion are those of the guest speakers joining us today. To learn more about our speakers and their work, you can visit regproject.org to view their full bios. After opening remarks and discussion between our panelists, we’ll go to audience Q&A. Please enter any questions into the Q&A box, and we’ll address them as time allows. 

 

This afternoon, we’re pleased to host a conversation titled “Brace Yourself: Discussing the ATF’s Rulemaking on Forearm Stabilizing Braces.” To discuss this timely topic, we have a terrific panel featuring John Shu, Michael Faucette, and Paul Helmke. John Shu, who will be our moderator today, is an attorney and legal commentator whose focused areas include constitutional law, securities and corporate law, politics, and international affairs. John has held a number of positions in government, including roles in both Bush White Houses and roles serving Judges Stanley Sporkin and Paul Roney. 

 

And with that, John, I’ll turn things over to you.

 

John Shu:  Thank you, Jack. Ladies and gentlemen, thank you for joining us today. I would encourage you all to brace yourself because we’re talking about forearm braces and administrative agency powers and the Bureau of Alcohol, Tobacco, Firearms, and Explosives, or as I like to say, the world’s greatest grocery store. With us today, we have Professor Paul Helmke from the great state of Indiana. Paul is a — he comes from a very prestigious and very political family. He, himself, has run for office and is former mayor of Fort Wayne, Indiana. Paul is a native Hoosier and did his undergraduate at Indiana University and went on to Yale Law School—we’ll forgive him for that. And Paul, I understand you were an acquaintance, or you knew President and Mrs. Clinton there at Yale. 

 

Paul Helmke:  Yeah. You can’t control your classmates.

 

John Shu:  You can’t run away from them. And Paul ran as a Republican when he was in Indiana. And Paul’s also the former CEO of the Brady Campaign, which started life as Handgun Control, Inc., the Brady Campaign. Now it’s, of course, named after President Reagan’s press secretary, James Brady, who was shot in the head in 1981. Paul, thank you very much for joining us from Indiana. 

 

Our other speaker and special guest is Mike Faucette. Mike is in active practice at Wiley, or what used to be called Wiley, Rein, and Fielding. Mike is a specialist, not only in administrative law, but especially with administrative law with respect to firearms and export controls. He has worked quite a bit and represented clients in all of these administrative fields. And he probably knows a federal register in this section better than most. And of course, Paul is now at Wiley, but he’s clerked before in the Court of Federal Claims and got his law degree from Catholic in Washington, DC. And Mike, of course, born and raised in DCin the DC areaand he is what we would call a natural swamp creature. So thanks very much, both to Mike and Paul. 

 

In case you don’t know, a forearm brace is a device that was originally created somewhere around 2012 and was originally designed to help disabled people, including disabled veterans, shoot their AR-15-type pistols. I want to emphasize it’s not a rifle that they’re using. It’s a pistol as defined by the Bureau of Alcohol, Tobacco, and Firearms, and Explosives. We’ll just call it the ATF for short. We know it’s BATFE now, but we’ll call it the ATF for short. And of course, those who are disabled or who have lost fingers or parts of limbs in their service, or just from other ways—you can be disabled without having been in service—and that’s how it began. 

 

Over the years, the Obama Administration had approved it under the ATF. They’ve had some flip-flops here and there on how it’s supposed to be used. Now, actually, in December of 2020, the ATF started a new rulemaking process on, perhaps, making handguns with forearm braces fall under the restrictions of the 1934 National Firearms Act, and both of our special guests will get into that and what the process is. I think comments are supposed to end on September 8. So, if you haven’t made your comments yet, after you listen to this panel, you’ll know much better on what to do. 

 

So with that, I’m going to thank both of them. I want to thank you all for joining us. And we’ll turn over to Mike Faucette.

 

Michael Faucette:  Thank you, John, and thank you to the Regulatory Transparency Project for having me here to discuss an issue that has potential to impose criminal penalties on millions of Americans through an agency’s inconsistent interpretation of the statute. Just at a high level, the statute implicated is the definition of rifle under the Gun Control Act and the National Firearms Act. It defines rifle as “a weapon design or redesigned, made or remade, and intended to be fired from the shoulder.” The issue is whether the installation of an arm brace on a firearm redesigns that weapon to be “fired from the shoulder.” 

 

To give the audience a little bit of background, the stabilizing brace is a firearms accessory first developed in 2012 when the inventor, Alex Bosco, was at range with a friend that was wounded in Afghanistan and trying to use a firearm with a prosthetic limb. When the range officer came in and put a stop to it for safety reasons, Alex got angry, went home, and designed the first stabilizing brace using a foam camera case. Upon returning to the range, it was recommended by the range officer that Alex submit the device for ATF for a classification letter. Alex affixed it to an AR-15 pistol and promptly submitted it to ATF for classification.

The concern was that ATF would view the brace as a shoulder stock. Given that the firearm has a barrel length of under 16 inches, the presence of a shoulder stock would mean that the firearm was designed and intended to be fired from the shoulder, thereby making it a short-barreled rifle, a weapon subject to the National Firearms Act of 1934. This act requires federal registration of certain defined firearms that Congress concluded were especially dangerous. To own one of these firearms requires a submission of your photograph, fingerprints, and the payment of a $200 tax to the ATF. After, usually, about a year, ATF will mail you a tax stamp, which means you can now receive the gun you purchased or, in certain cases, build it yourself. Violations of the National Firearms Act result in a $250,000 fine and imprisonment of up to 10 years, which gives you some insight as to why this issue is so critical for so many people. 

 

Anyway, about two weeks after Alex submitted his prototype, he received a one-page letter from ATF stating that the brace did not convert a pistol to a short-barreled rifle. ATF held that the addition of the brace did not mean that the firearm was now suddenly designed and intended to be fired from the shoulder. Rather, it would still be classified as a pistol. But then, for about the past eight years, the Firearms and Ammunition Technology Division of ATF—and they’re the division primarily responsible for issuing classifications of firearms—they’ve been struggling to consistently regulate these devices through the issuance of private letter rulings while at the same time, the firearms industry and gun owners have been desperately trying to follow ATF’s constantly shifting positions on this matter. 

 

Several years after Alex’s original classification letter, gun companies that submitted products to the ATF started receiving private letter rulings that gradually began to incorporate new criteria that had never been previously mentioned. The problem was that unless these companies decided to post their letters online, ATF’s new standards were not available to the public. And to make matters worse, the ATF started issuing these secret classification letters with these new public standards to district attorneys and AUSAs in support of criminal prosecutions. 

 

Then last December, after years of inconsistent private letter rulings, the Trump administration’s ATF attempted to issue guidance in the federal register with a 14-day comment period. But after significant public outcry, the Trump administration quickly withdrew the proposal. Then this past June, after an estimated 10 to 40 million of these braces had already been sold to the public, the ATF tried again by issuing this current NPRM to “allow individuals or members of the firearms industry to evaluate whether a weapon incorporating a stabilizing brace will be considered a short-barreled rifle or a firearm under the law.” 

 

But the proposed rule does just the opposite of what it purportedly sets out to do. The rule creates a two-page worksheet with a three-step point system. Part one looks into whether a firearm even qualifies to be subjected to the test by asking two threshold questions: does it weigh less than 64 ounces, and does its overall length exceed 26 inches, or is it under 12 inches? If the answer to either of these questions is yes, your gun is automatically a short-barreled rifle if it has a stabilizing brace attached. And that’s the end of the analysis. Note, there’s no real discussion from ATF as to how they came up with these numbers. Part two looks to the specific features of the brace itself and part three looks holistically at the features of the entire gun.

 

We can get more into the specifics later, but the problem is that most of these design features are overly vague and delegate complete discretion to the agency to decide whether a firearm is a short-barreled rifle or a pistol. For example, the proposed rule rewards braces that have less rear surface area. Points are assigned based on a series of adjectives, “minimal surface area, sufficient surface area, and increased surface area.” But these factors are not grounded in any objective metric and clearly meet the standard for arbitrary and capricious. 

 

But the most egregious part of the NPRM is that it gives ATF unbridled authority to completely disregard its new worksheet, stating at the top of the worksheet “ATF reserves the right to preclude classification as a pistol with a stabilizing brace for any firearm that achieves an apparent qualifying score but is an attempt to make a short-barreled rifle and circumvent the Gun Control Act or National Firearms Act.” So regardless of the regulated community’s efforts to follow the worksheet, ATF reserves for itself unlimited subjective discretion to throw the whole thing out the window when it doesn’t support the outcome they’re looking for. If this rule is finalized, millions of Americans will become felons overnight. Beyond that, there are serious legal problems with this rule, including retroactive rulemaking issues, due process issues, and others, which I think are likely to be corrected by the courts if significant changes are not made before final publication. 

 

I’m sure we’ll get into some of these potential court challenges later. But with that, I will turn it over to Paul.

 

Paul Helmke:  Well, first of all, thank you to the Regulatory Transparency Project and to our moderator, John, and Michael. I might just mention—and I told the folks this—I’m not an expert on administrative law. I practiced law in Fort Wayne for about 21 years, general practice, so I’ve never had much of an administrative law practice in Indiana. As a professor, I don’t teach administrative law, particularly. If anything, my background is more on gun issues in terms of constitutional issues, the Second Amendment, history of the Second Amendment, those sorts of cases. But I’m also a recovering politician, so I’m always happy to talk on panels where I have some thoughts and some — perhaps can contribute a few things. But just the qualifier — to listen to Michael, who’s a specialist in administrative law and firearms, obviously, I’m in a little over my depth here. But a few comments. 

 

First of all, why are we even talking about a topic like this? Part of is because we have a problem in this country with gun violence. And that may seem irrelevant to an administrative law discussion, but it really is the surrounding reason why these sorts of regulations are discussed and why there’s so much controversy over them. About 35 people are murdered with guns every day in this country. Another 69 to 75 use guns to commit suicide — to die by suicide every day in this country. There’s usually another one or two who are accidentally killed every day with a gun in this country. So we have a lot of gun deaths in this country. And of course, for every one that dies by a gun per day in this country, you’ve got another two to three — another one and half to two people that are seriously injured—like Jim Brady was, like Gabby Giffords was—by the gun and live with the consequences of that. So 5here is a problem with gun violence. That’s point number one. 

 

Point number two. As a society, we have done very little to address the issue of gun violence. In terms of congressional action, basically, we’ve got the mid-1930s actionsthe 1934 National Firearms Act, which at its core basically talked about certain weapons that needed to be treated differently — machine guns, sawed-off shotguns, sawed-off rifles. They focused on the type of weapon. Then you had the Gun Control Act of 1968, which did a number of things but specifically focused on who was a prohibitive purchaserwho were the sort of people that shouldn’t be able to get guns. Then we had the Brady Billthe Brady lawin 1993, went into effect in 1994, which focused on sellers of firearms, requiring them to do some background checks to make sure that the people that they’re selling to don’t violate the provisions of the Prohibitive Purchaser Act. That’s it. 

 

We did have a so-called assault weapon ban on the books for about 10 years, from ‘94 to 2004. That expired. Other than that, in terms of congressional legislation, we’ve basically done nothing. After Virginia Tech shooting in April of ’07 when George W. Bush was still president, there was the NICS, the National Instant Background Check System. There were some amendments that were adopted to that that basically adopted a carrot-and-stick approach to states sending in records of people that would be prohibitive purchasers. But that’s it. 

 

And gun violence continues to go on in this country. And people start asking, “What can we do about it?” And when we’ve seen, particularly, a lot of high-profile mass shootings — and again, I don’t think that should be the focus of legislation, necessarily, because we have shootings occurring on a daily basis, but when we see high-profile mass shootings, that’s when the pressure is put on elected officials to do something. 

 

So, a few years back when we had the Pulse Night Club shooting where about 50 people were murdered with the fellow using the bump stock out of hotel room window, then the focus became bump stocks. And since that time under the Trump administration, regulations have been adopted dealing with bump stocks. And lawsuits challenging those are currently going through the courts. And I think the Sixth Circuit, just a couple months ago, decided to review its panel ruling that said that the ATF had gone too far with regard to their bump stock regulations. But those are things moving through the court. 

 

Similarly, the focus on the stabilizing braces, I think, connects back to a couple recent mass shootings that we had. About two years ago this month, August 5th of 2019, there were 9 people killed and another 17 seriously wounded in Dayton, Ohio with an individual that used a stabilizing brace to fire 41 rounds on his gun with a — to fire 41 rounds in about 30 seconds. That started to raise questions again. Then just five months ago, on March 21st, I think it was, of this year in Boulder, Colorado, ten people were killed outside the grocery store — inside and outside of the grocery store with another individual using a stabilizing brace. 

 

It was following those incidents that both the Trump administration and then the Biden administration had now said, “What can we do about these stabilizing braces?” And a lot of the history on it happens to been confusing, I know, for gun owners and for others, as Michael’s pointed out. And I think that’s one of the good things with regard to this proposed regulation. Instead of having these private ruling letters that are going out and aren’t being public and that aren’t giving any guidance, the ATF is trying to take this entire issue, place it on the public record, take comments—this has been open for comments since June, I believe — again, the expiration date for comment is September 8thand presumably, will listen to the comments, read the comments, and evaluate those. 

 

I think when you look at the statement that the ATF has issued, they indicate that they’ve been doing things on, basically, a gun-by-gun, an item-by-item basis, and that that’s confusing for manufacturers, that’s confusing for owners, that’s confusing for sellers, and they’d like to try, as much as possible, to get some sort of standard there, So they’ve developed this worksheet. And maybe it’s not the perfect worksheet, but that’s one of the reasons you take comments to figure out what should be included, what shouldn’t be included, what sort of points should be there. 

 

Why does a worksheet make sense? Why does this sort of rule make sense? It’s because we’ve got a statute in both the 1934 Firearms Act, repeated in the Gun Control Act of 1968, that defines rifle, again as Michael pointed out, as something — a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder. What does that mean? I mean, whose intent? Is that the intent of the manufacturer? Is that the intent of the distributor? Is that the intent of the seller? Is that the intent of the user? And those are sorts of issues that the ATF, I think, is trying to address here, and I think that’s a good step. 

 

And again, I’m not an expert on what the weight should be or how big the back brace should be or the pad that goes against your shoulder or against your arm. But we need to try to get some certainty in this area because otherwise, once again, our response to continuing tragedies in this country is going to be, “Let’s do nothing.” And when we do, “Let’s do nothing,” then the tragedies continue. Let’s start to address the issues of gun violence. It’d be better if Congress could get involved in this issue, too. And they’re trying a little bit more than they have in the past. But with ATF, I think, we can start taking some steps. 

 

One last point. It’s time to get an ATF director, too. We’ve only had one congressionally approved ATF director since the job was transferred from Treasury to Justice. That’s ridiculous. If we want some leadership there, if we want some finality there, let’s put someone in charge. And even if we disagree with what that person is deciding, then we know who we’re talking to. But instead, we block the nominees that come up, they get stopped from both parties, and we end up with an agency that doesn’t have a head. And when you’ve got an agency that doesn’t have a head, why are we surprised when they start issuing things that some people disagree with? 

 

If we had a fellow like David Chipman confirmed, agree with him or disagree with him, he’s somebody that had 25 years in the ATF. I’ve dealt with him quite a bit. He is someone that I consider upfront and honest, intelligent, who will try to do a good job based on the directions that are given to him, the definitions that have been given to him from Congress, and the role of law. I think that’s the kind of approach we want. 

 

So with that, happy to get involved in a discussion.

 

John Shu:  Thank you both, gentlemen, for that interesting and excellent introductions. I’m going to ask — take moderator’s privilege, and ask a couple of questions first. To both Paul and Mike, in the past, under the Obama Administration with respect to these forearm stabilizing braces, the ATF had said with the brace, any kind of brace, if you put it on your shoulder, illegal, if you put it on your arm or any other part of your body, perfectly fine. Then they flip-flopped on that a few times. 

 

Let’s start with Mike and then go to Paul. What would be wrong with just going back to that standard? If put on shoulder, then illegal. If put on any other part of your body, including forehead, then fine.

 

Michael Faucette:  I think the primary problem with that is that there’s nothing in the law that really gets to the manner in which someone used a product as far as redesigning it. All of these definitions in the National Firearms Act all hinge upon physical attributes of the item. And what ATF was trying to do is trying to expand that by moving it over to, how is it used, and if you use it in a certain way, that somehow magically converts the gun into something else. 

 

And there’s really no support in the law for that whatsoever. It also just creates a bunch of practical issues. If you hold your brace up to your shoulder for five seconds and then put it down, does that automatically mean that now you’ve got an illegal weapon sitting in your house? It was a ridiculous standard. And I understand what ATF was trying to do. It was a way where they could try to shut everything down, but it’s not anything that I think would ever withstand any type of judicial scrutiny.

 

John Shu:  Paul?

 

Paul Helmke:  Yeah. I think Mike’s got the right points there. Basically, it’s hard to do a definition that’s just based on what the user is going to do with it. You try to find some sort of an objective definition. And the ATF, in the proposed rule, talks about even the problem with the looking to see how the manufacturer’s marketing the item. If an item is manufactured, does this say it’s not supposed to be used for this, it’s supposed to be used for that? Is that determinative? Or do you get some people who will advertise it one way and then promote its use another way in another forum? 

 

So, I think what the ATF is trying to do with this rule is it’s not going to be just what the user does with it. It’s not going to be just how the manufacturer tries to market it and sell it. It’s got to be on somewhat objective criteria. That’s hard to develop. And there’s a lot of areas of vagueness here, perhaps, that maybe can be tightened up when they finish the rulemaking process. But they’re trying to find a way to be objective based on the weight, based on the length, based on the ease of putting something together. 

 

I mean, you look at pictures of the gun that the Dayton killer used, and it looks like a rifle. You look at the news reports on the Boulder shooting, and the people say the guy had a rifle. I don’t think we want to go back to the pornography definitionI can’t define it; I know it when I see it. I think what ATF is trying to do is to give us some criteria to help define what it is so we’ll know it when we see it.

 

John Shu:  Paul, do you have any ADA concerns? Because the people who use the brace and for whom the braceforearm bracewas originally designed are disabled, well within the definition of the Americans with Disabilities Act of 1990. And for those of us who were or are in private practice, we know that there’s a whole cottage industry of ADA plaintiff’s attorneys. But it occurs to me that because these were originally designed to help the disabled, including disabled veterans, do you have any concerns that what’s going on now would affect that and perhaps conflict with the ADA?

 

Paul Helmke:  Oh, yeah. I mean, that’s a very legitimate point, and that’s a serious point and one I’m — I agree with your point. We have to be very concerned about how this relates to those with either war injuries or other injuries that would want to use something like this. It’s my understanding that the ATF, in its rulemaking is trying to address the ADA issue. How they do that’s going to be, obviously, tricky, but it is one that does need to be addressed. But that’s why you draw up rules, to try to deal with these kinds of things. And ADA challenges can come up at any time from anybody. I mean, I know when I was mayor, we were constantly trying to deal with that when we were assigning highway street construction and curb construction and everything else. It takes a while. And generally, what you do is you get things worked out when you’re dealing with that community. 

 

But I think what’s happened here is—and I think this is one of the reasons that the ATF is dealing with the issue now—is this started out as something that was just going to help those like the story that Michael told about the inventor and his friend at the gun range, but that now gun manufacturers are seeing this as, perhaps, either a loophole or an opportunity that they can exploit to get more of these sold to a broader range of purchasers as a way, perhaps, to push up against the limits of the Firearms Act of 1934 and the Gun Control Act of 1968. I think that’s why we started out seeing some — here’s preliminarily how we’re going to deal with this, here’s a private ruling letter to deal with this, and then try to refine it. 

 

That’s not the way to deal with an issue like this. And the ATF has indicated that they are seeing more and more applications with more and more designs and that they feel, because of that increase in folks coming to them, that they need to try to come up with some rule—following all the notice and comment, going through all the steps, not some hurry-up-push-this-through thing—that will deal with these uncertainties that go around the stabilizing braces.

 

John Shu:  Let me take this opportunity to let our many audience members know that — first, thanks again for joining us. Second, if you have questions, please use the Q&A function and the chat function, and send your questions to the host, to the regulatory Transparency Project. And we would love to have your questions. And I think our panelists promise not to laugh at you. I’m kidding. I’m kidding. 

 

Mike, let me ask you the same question but in a slightly different way. Number one, have you seen the ATF make any public statements about considerations of the Americans with Disabilities Act?

 

Michael Faucette:  I have not seen them make any public statements on it. My understanding — my limited understanding of the ADA—and I, by no means, have any in-depth understanding of it—is that the federal government, I believe, is exempt from the provisions of the ADA. It’s primarily targeted at local and state governments and other entities. So I don’t know that they would have any legal concerns about the ADA.

 

John Shu:  Well, that’s true. But no administration wants to be known as the administration —

 

Michael Faucette:  Right

 

John Shu:  — who hates disabled people.

 

Michael Faucette:  Exactly. Yep.

 

John Shu:  Whether it’s a political concern or a regulatory concern, I think the concern is still there.

 

Michael Faucette:  Yeah. I think they’ll try to avoid it, probably, as much as possible. And I’m sure it’s going to be raised in the comments and then they’ll have to address it. They’ll probably just make it a straight-up legal response, given the over 100,000 comments they’ve got now. But, yeah, I’m not aware that they’ve taken in any consideration in either a political or legal aspect.

 

John Shu:  And then, Mike, Paul mentioned that, of course, the two big gun control acts were ‘34 and ‘68; ‘68, of course, was passed partially as a result of Senator Kennedy — Robert F. Kennedy being shot. And I might also note that his assassin, Sirhan Sirhan, was recently released on parole here in California.

 

Paul Helmke:  He hasn’t been released yet. They’ve recommended he be released.

 

John Shu:  Oh, they recommended his release, yeah, here in California. But the prosecutors are not challenging that. But Mike, Paul mentioned that with his experience of Fort Wayne — let me ask you this. Why hasn’t Congress stepped in? Why are we allowing a regulatory agency to do all of this defining when Congress was more than able to define it in ‘34 and ‘68?

 

Michael Faucette:  Well, the obvious question is that Congress — neither party has the 60 votes necessary and haven’t had the 60 votes necessary since, I think, 2012 or 2013 to address these issues. And even then, they couldn’t even get — I don’t think they could even get 50 votes on things like assault weapons. So people usually say the reason for that is the NRA controls all these senators, and congressmen are beholden to the NRA. But I think that’s a little bit too simplistic.

 

To me, I think it’s the constituents in each of these states. They have significant interests in the property that they own and the firearms that they own. And they’re used to a history of — for example, with the Gun Control Act, where broad discretion was given on certain issues, like imports, and where the agency continuously step-by-step tightened the noose on that to the point where people saw their rights slowly stripped away as far as what types of guns they could get access to all through administrative action — and I think a lot of people are very suspect of that now. And most of these — a lot of these senators, there’s just not enough of them, and there’s not enough states where there’s people in these states that are actually pushing for these types of things. 

 

As for why this issue, particularly arm braces, hasn’t come up, I think it’s primarily because there hasn’t really been much impact. I mean, there’s no actual information out there as to how many of these have been used in crimes. I mean, even the ATF and their NPRM — Paul cited the two cases. But ATF even admits that those instances may have involved brace pistols. We don’t even know. And if the ATF knew, I don’t see why they wouldn’t have put that in the rule. So we don’t even have, actually, any concrete examples of when these firearms had been used in a crime. We just have speculation on the part of ATF.

 

So, I just –. [Crosstalk 32:51]

 

John Shu:  Wait a minute. Mike, I’m a little confused about something. With respect to the Boulder, Colorado and the Dayton, Ohio, incidents that Paul mentioned—very tragic, both of them—wouldn’t both the ATF and the FBI and the local police — wouldn’t they already know what type of weapon the murderer used in those cases?

 

Michael Faucette:  You would think, which is why I’m a little bit puzzled why they used the word “may” in the proposed rule.

 

John Shu:  Are you saying they just haven’t made it public? Because they know, right Paul? I mean, they know.

 

Paul Helmke:  At least the locals are going to, certainly, know. And I would assume the ATF knows. Yeah.

 

John Shu:  So, Mike, are you just saying that they haven’t made it public yet, what type of weapon was used?

 

Michael Faucette:  I mean, obviously, like you said, I’ve heard, through local reporting, that those were the types of weapons used. But for purposes of what’s in the actual federal register in the record that would be reviewed by a judge, the best ATF has is to say that it’s possible in two cases an arm brace was used in a crime. And I think that that’s going to be difficult to justify restricting the rights of millions of Americans over two possible incidents that the ATF, for whatever reason, is not willing to definitively state involved pistol braces.

 

John Shu:  Well, let me ask you this. Would you prefer that Congress tackled this through the legislative process as opposed to dumping it on a — and I understand the political reasons. If Congress dumps it on a regulatory agency, no voter can hold him or her responsible for doing it. Like, I get that. You know, nobody voted for the ATF staff. I understand that. But just as a matter of good governments, would you prefer, much like in 1934 and in 1968, that Congress actually do its job and step in and handle this through the normal debate and legislative process?

 

Michael Faucette:  Absolutely. 

 

Paul Helmke:  Clearly, that’s always a much better approach. And again, I remember when I was in undergrad, one of my honors papers was on what was the impact of the senators voting on — the way they voted on the 1968 Gun Control Act because that was in October, I think, of ‘68. What was the impact on their election, reelection the following month? And I did a paper on that. Of course, back then, I had to write the different campaigns to get their materials and try to dig up local newspapers across the country, which was a lot harder back then. But I remember concluding that there wasn’t much of an impact. It may have made a difference in one or two races, but I think Maryland was the major one. 

 

But I looked — I was mayor when the Brady Bill came in — and that’s a different part of the issue. But Congress was willing to step up, but it took them a long time. There had been pushes both when Reagan was president, when Bush Sr. was president. It finally got through when Clinton was president. It had bipartisan support. Jim Brady, of course, was a Republican, the press secretary for Mr. Republican Ronald Reagan. And Sarah Brady worked it through public national committee. It’s always better to go through Congress. But for some reason, we use this unconstitutional requirement now of 60 votes to advance things. And so after Sandy Hook, we see, I think, 55/56 or so senators voting for something close to universal background checks, but that’s not good enough to pass things anymore. So that’s one of the problems we face. 

 

One of the concerns, though, always is do we really want legislation that’s describing — and I know both the ‘34 act and the ‘68act use the number of inches, but sometimes it’s hard to write legislation where you’re saying this is over 16, under 16 inches, for rifles the under 18 inches, for shotgunsthat was a change that was actually made in 1960 from the original ‘34 actand then, getting the weight of the weapon and then the length of the stock and the length of stabilizing base. Some of those are tricky things to write into the legislation. But it would certainly help if Congress would revisit a number of gun violence prevention measures and look at ways to help make the country safer and help, at least, spell out a little more explicitly what sort of things ATF or other agencies can do. 

 

One last point on this, too. Part of the problem that we’ve had with the broader issue for the last 30-some years is that there have been restrictions against the federal government finding out much information about gun violence. For a number of years, going back to 1996, there were restrictions on what the CDC and the NIH, National Institute of Health, could do in terms of research that dealt with gun violence. There are still restrictions going back to 2004 on Justice releasing much information on where guns in crimes come from. There’s been the so-called Immunity Act—it’s not complete immunity—but the so-called Immunity Act for gun manufacturers and gun dealers with regard to guns used in crime. 

 

When we look at the history of, say, tobacco, we realize that government research, Surgeon General’s findings, litigation against big tobacco, that all helped us develop a new set of legal rules, a new set of legal responsibilities. With the gun issue though, we have kept the research from going, and we have — so the federal government’s not doing the research and we don’t the litigation that’s helping bring any facts to the fore either. So, something different needs to be done than what we’re doing now. That’s my main point.

 

John Shu:  So Mike, Paul brought up an interesting thing about the administrative agencies looking at shootings as a public health issue. Rochelle Walensky at the CDC recently said that she’s ready. She’s ready to do her examination and her thing with respect to “gun violence.” This isn’t exactly a forearm brace issue, but can you foresee — first of all, it’s not as if the CDC has nothing better to do right now. But Mike, are you concerned at all from an administrative power point of view? Are you concerned at all that the CDC is trying to muscle in on things like forearm braces or even just gun regulation—not legislation, gun regulation in general—because they feel like the ATF is too slow?

 

Michael Faucette:  Yeah. I mean, I think the CDC — I don’t think it’s in the CDC’s purview to be engaged in that side of things. I think that’s strictly a law enforcement issue. If they want to look into the mental health implications of it, I think that’s one thing. But once you start merging the Center for Disease Control into looking into crime statistics, I think that an argument could be made that it falls into their jurisdiction, but to me, that’s something better suited for the FBI, Department of Justice, or the ATF to be looking at.

 

Paul Helmke:  And this is what’s so frustrating, though, because, basically, the point I was trying to make was that we need research before either Congress can develop better legislation or agencies can develop better rulemaking, it’s good to have information. But when Congress — when we choke off the ability for CDC to do research or NIH to do research or Justice to release information or, again, private litigation to develop information, then it’s real hard. 

 

I mean, I still remember when the so-called assault weapon ban expired, and there was a push to get it reinstated. The comment was, “Well, we don’t have any research that this helped reduce any violence.” And of course, there were a lot of other issues because there were grandfather clauses and that. But that’s part of the beauty. It’s hard to push for change when there’s no research to base it on. But if we intentionally choke off federal agencies from supporting or doing or sharing research, then we have problems.

 

John Shu:  Right. Well, there was some from the FBI’s uniform crime reports, but there have been pushes in the past for the CDC to get involved, particularly when President Obama was in office, for obvious reasons. 

 

I’d like to continue encouraging our audience members to send in questions. We have several in already which we’re going to get to. One thing that Paul mentioned about the 60 votes — for those people who aren’t familiar with the Senate internal process, what Paul was referring to is the cloture. In other words, certain things that — like judges, for instance, confirmation of judges and confirmation of cabinet officials or agency heads — even though it’s a 50-50 Senate with Vice President Harris presumably voting in favor of the Biden administration, in certain situations, the Senate rules, in order to bring the issue to a vote requires 60 votes. It used to be two-thirds, but now they’ve reduced it to 60.

 

Paul Helmke:  And it used to be two-thirds where you’d actually have to take the floor and speak and do the Mr. Smith Goes to Washington, —

 

Michael Faucette:  Right.

 

Paul Helmke:  — or at least Ron-Thurmond-type standing up there for 24 hours.

 

John Shu:  Yeah. The filibuster rules have changed. You used to have to do it in person. Now, you can just say —

 

Paul Helmke:  You can kind of just raise your hand and say, “I declare [inaudible 42:29]. . .”

 

John Shu:  That’s right. Okay. Paul, let me take some audience questions here. Paul, are you concerned about a takings issue? Mike mentioned that there’s millions of these things out there. We actually don’t know because we don’t really keep track of how many were produced or purchased. And honestly, one person could buy more than one, presumably. So, are you concerned if the ATF goes this route that they want to go that there might be a takings issue involved? And how would you address that?

 

Paul Helmke:  I mean, that’s a legitimate issue, certainly. That’s one that — if the rule doesn’t outline some things, I’m sure the courts will. I know sometimes, in the past, rules have — it’s like, again, the so-called assault weapons ban was perspective only, not retroactive. That’s one option that can be explored. But you look at case law — I’m not sure this is considered — I mean, this certainly isn’t a taking like real estate, that sort of a taking. So I think the courts would treat this a little bit differently than a traditional takings case. I’m not an expert in that area. But you can either deal with it somewhat administratively, somewhat with the courts, or sometimes that’s just the way it works. Congress sometimes changes the laws, or the federal government changes some laws, and things that you’ve got — that once were legal aren’t anymore.

 

Michael Faucette:  John, I can –. [Crosstalk 44:00]

 

John Shu:  Go ahead, Mike.

 

Michael Faucette:  I can tell you that when they did this with bump stocks, to my knowledge, they told everyone you either had to turn it in or destroy it. And to my knowledge, that was the first time in American history where the federal government required someone to turn over their property without compensation. There have been several takings cases working their way through the courts. So far, all of the cases that have been cited by the government involve states that have engaged in takings. And so far, the judges have upheld the action as part of the police power, which is not in the constitution, for those constitutional scholars out there would know. 

 

And we’ll see what happens. But there seems to be this idea that if something is dangerous, then the federal government is free to step in and take it. To me, that’s a little bit scary, but that’s why I’ve been following those cases because there’s definitely some serious ramifications there if the government is just allowed to determine on a whim what they feel is dangerous or not and then come in and take from the public. 

 

But to Paul’s point about real property versus physical property, the Supreme Court actually, in 2015, did specify in a raisins case, Horne v. Department of Agriculture, that physical property is treated the same way as real property for the first time for takings purposes. So that hasn’t really been expanded on that much, but they were clear on that they treat both the same. So it will be interesting to see here how that plays out.

 

Paul Helmke:  And just to say –. [Crosstalk 45:55]

 

John Shu:  We generally do reserve the police power to the several states, not to the federal government. Paul, what you were saying.

 

Paul Helmke:  I was just going to make a historical note that, obviously, the largest uncompensated taking in American history was eliminating slavery. Not to compare any of that to this, but I’ve been teaching some of the reconstruction amendments lately. I mean, that was an issue, actually, that some of the Southern States and slave owners did raise is that this was an — that this was a takings when they eliminated slavery and didn’t compensate for their “property.”

 

Michael Faucette:  But wasn’t that due to a constitutional amendment?

 

Paul Helmke:  Yeah. Yeah. But it was still part of the arguments that they challenged that — “So you don’t have slavery anymore, but how come no one’s compensated me for my property” was still an issue that was raised. I’m not saying this is anywhere at that level, but I’m just saying, as a historical note  — you know?

 

John Shu:  Right. Of course, General Sherman had something to say about that as well. Paul, from a constitutional perspective, in your view, do the Heller and McDonald cases have any bearing on this? Because neither one of those cases was about administrative power, but do you think they have any bearing on what the ATF is trying to do right now? 

 

Paul Helmke:  Well, it’s quite clearly — the Heller case in Section three, Justice Scalia said, again, “This right, like other rights, is not unlimited,” and went on to say that restrictions on who can get a gun and where they can take the gun and how the gun is sold and how the gun is stored, as well as what type of gun is restricted, that most of those restrictions are “presentably lawful.” Justice Scalia made a specific point about unusual and dangerous weapons. And it’s a confusing part of the Heller case because he then sort of admits that, “Well, if we’re arguing that part of the reason the Second Amendment was written was a military purpose or a militia purpose or at least some relationship to the militia, then wouldn’t that justify arms that could be more serious, dangerous arms?” But he says that’s not for him to consider in the Heller case. And it’s left that sort of in a state of confusion because it gets argued occasionally that, “Well, if it’s popular, then it’s no longer unusual.” And all sorts of guns that people are buying these days that some might consider dangerous are becoming very popular. 

 

The McDonald case pretty much repeated that same language in terms of the Second Amendment rights are not unlimited in those sorts of restrictions. It’s interesting, in the McDonald case, Otis McDonald wanted a gun in the city of Chicago to defend himself. He actually had a shotgun. He was allowed to have a shotgun in the city of Chicago, and he wanted to have a pistol too. And even while most police officers that I talk to say you’re better protected with a shotgun than you are with a revolver, he wanted something else. But the Court in McDonald didn’t really talk too much about the type of weapon issue either. So they just, of course, made the Second Amendment ruling in Heller, which is again the federal enclave — they made that applicable to the states in the McDonald case.

 

John Shu:  Well, you’re probably better off using the internet to publish your stuff, but if you want to use a Gutenberg printing press, I think you’re probably allowed to do that, too. Mike, we’ve got another question from the audience here about interstate — about the definition and the point system. So, right now, the proposed ATF point system — which both of you are familiar with the point system in the 1968 Act where they defined what could be imported and whatnot. But with respect to the proposed point system, some of the categories talk about using it with one hand as opposed to two hands. But of course, modern doctrine if you look at police officers, military-civilian shooters, sport shooters, they pretty much use two hands all the time. Mike, I was wondering if you could please clarify that for us on what the –

 

Michael Faucette:  Yeah.

 

John Shu:  — ATF is thinking.

 

Michael Faucette:  I think ATF is looking for another reason to try to capture these items as non-pistols. And the way they look at it, and the way they historically looked at it, was determining whether or not a gun was designed to be fired with more than one hand depended upon whether or not there was a vertical forward grip on the weapon. That’s clearly not at issue here, and that went towards whether or not the weapon was classified as an any other weapon, or AOW, which is another NFA category. But I think what ATF’s trying to do here is they’re trying to say, “Is the gun designed and intended to be fired with one hand, yes or no?” And if we think it’s too heavy, then we’re going to automatically say that — and it’s a subjective standard, but they’re going to say, “We’re automatically going to say that it’s not a pistol, because it’s too heavy to be fired with one hand.” 

 

They don’t really explain — there’s obviously a lot of very heavy traditional revolvers out there. There’s Desert Eagles, .44 Magnums, that I don’t think anyone would want to go out and shoot with one hand, but I don’t think ATF would ever say that those are anything but pistols. So I think it’s just another attempt to try to rein in as many of these different types of weapons as possible. 

 

John Shu:  And would you say the same, Mike, about — I noticed another category says presence of backup, flip-up sights, or no sights. And I’m kind of —

 

Michael Faucette:  Yeah.

 

John Shu:  — like, “Well, at some point, the firearm is probably going to have sights, but it seems to me that either way you get the same amount of points. If you have no sights, flip-up sights, or backup sights, you —

 

Michael Faucette:  Yep.

 

John Shu:  — or a reflex sight, you either have one or two points. And is that — what you said just now, do you think that’s applicable to that question, as well?

 

Michael Faucette:  Yeah. There’s absolutely zero explanation as to why the presence of flip-up sights or no sights makes something more or less like a rifle or pistol, especially having no sights. Why is that something that makes it more like a rifle? And this whole idea, too, that grip has anything to do — I mean, the test should be, “Is it designed and intended to be fired from the shoulder or not?” But ATF has tried to twist it to say, “Oh, well, we’re going to start looking at grip, and we’re going to start looking at whether or not it can fired with more than one hand. What are the features that facilitate that?” 

 

But that’s not what the statute says. The statute says, “Is it designed and intended to be fired from the shoulder?” And so all of these criteria that reference grip and other things, to me, are invalid because they are completely outside the scope of the statute, which is shoulder firing.

 

John Shu:  Let me ask Paul this. Paul, number one, Mike keeps saying that the ATF hasn’t adequately explained on their points sheet, which they probably borrowed the idea from the ‘68 Act. But, Paul, does the ATF actually owe an explanation on its points sheet? And number two, what degree of vagueness are they allowed in their point sheet?

 

Paul Helmke:  I don’t know. When it comes — I was a little confused by some of the way they did points, too, when I looked at it. And again, I’m no expert on gun technology or things. I do know that my police chief used to always tell me, “Stand up, stand this way, use two hands, the Weaver stance is the best way to fire a gun.” So, the one-hand/two-hand thing is a bit confusing. I don’t think the — I think—I hope—what I think the ATF is trying to do is to figure out how do we get some criteria that they can use to tie back to the statute on designed and intended to be fired from the shoulder. And if they feel that some of this criteria can help you determine that, whether it’s the sights or the forward grip or other things, then I think those are legitimate things to put there. And I don’t think they need to explain them. I think they would be better if they explained them. 

 

And maybe after all the comments are reviewed, maybe a final rule will have that. But I think what they’re trying to do now is to say, “What we’ve been dealing with in the past is a system where nobody had any idea of why we were doing what we were doing, and we risked doing these private letter rulings. We’re trying to get something on paper that, again, you might like parts of it, you might dislike parts of it — should be clear and should be fair and should be better for everyone than just going the — this one’s okay, this one’s not. And we won’t tell you why.” And so any of this, I think, is a step forward.

 

John Shu:   Gentlemen — oh, sorry, Mike, go ahead real quick.

 

Michael Faucette:  No. I was going to say I agree with Paul on most of that. But I do think that ATF’s purpose here is not necessarily to — I think they do want to clarify some of this, but I think they’re also very afraid that — if the lines are too clear, they’re afraid that the industry will find ways around those lines. And so what they want to do is create a system that allows — the ATF wants to create a system that allows them to move the goalposts as neededat their discretionso that they can prevent the industry from coming up with another what they would define as a loophole. 

 

And that’s just not the way that law works. When you set — especially a criminal law, when you set a law, there’s supposed to be clear boundaries and clear definitions so that the public can understand. There can’t be any of this, “You can go ahead, and you can meet all the points, but if we decide we don’t like your product, we can go ahead and still call it a short-barreled rifle.” I mean, to me, that just completely defeats the entire purpose of this exercise. So I think the ATF is getting a little bit too greedy as to what they think they’re allowed to — the discretion that they’re allowed to take here.

 

John Shu:  An administrative agency going for as much power as they possibly can? 

 

Michael Faucette:  Yeah.

 

John Shu:  God forbid., 

 

Michael Faucette:  Who would’ve thought?

 

John Shu:  I’ve never heard of such a thing.

 

Michael Faucette:  Who would’ve thought?

 

John Shu:  Gentlemen — I’ll start with Paul and then with Mike. Quick closing statements, please.

 

Paul Helmke:  Again, thank you for having me here. I wish we could deal with this issue a little more clearly from our elected officials in the fact that they haven’t dealt with it. That puts more pressure on our administrative agencies. Within the context of the statutes that have passed, like the 1934 Act and the 1968 Act, I think what they’re trying to do is to give better definitions and better guidance to gun owners and gun manufacturers on what they would allow. It’s not a perfect system, but I think it’s better than what we’ve had the last eight years.

 

John Shu:  Mike.

 

Michael Faucette:  Thanks again for having me. I think the courts will be the ones to determine whether or not this rule withstands scrutiny. I think that some of the bump stock cases moving up through the Sixth Circuit and up the Supreme Court, potentially through the Tenth Circuit, are going to give us an idea of which way this might go. But I do think that ATF has exceeded their authority on this one. And I understand that they’re doing their best to try to clarify things, but at the same time, they’re also trying to keep the door open for them to crack down on people when they get a feeling that they don’t like something. So to me, that’s contrary to our legal system and that’s not how things should work. So for that reason, the rule either needs to be withdrawn or reworked so that these criteria are made much more clear.

 

John Shu:  Well, gentlemen, thank you very much. And audience members, thank you very much. Please note that all of the opinions expressed are those of the panelists or your awesome moderator alone and not of either The Federalist Society or their Regulatory Transparency Project. I would also add that, if you’d like, please feel [free] to share. This webinar will be up on YouTube on The Federalist Society YouTube channel, and you’re more than welcome, anybody in the audience, to either listen in again for all the wisdom we’ve had from our great panelists or to forward it around. 

 

And with that, thank you very much for joining us. Thank you to both Mr. Faucette and Professor Helmke. Your honor, we really appreciate it. And I turn it back to Jack at the Regulatory Transparency Project. Thank you.

 

Jack Derwin:  A huge thank you, John. And I’ll echo you and thank Mike and Paul once again for joining us today. I think it was a great discussion that I’m sure our audience really enjoyed. And thanks to our audience for tuning into today’s virtual event. You can check out our website at regproject.org or follow us on any major social media platform @fedsocrtp to stay up to date on all our latest content. And with that, we are adjourned.

 

John Shu:  Thank you.

 

[Music]

 

Conclusion:  On behalf of The Federalist Society’s Regulatory Transparency Project, thanks for tuning in to the Fourth Branch podcast. To catch every new episode when it’s released, you can subscribe on Apple Podcasts, Google Play, and Spreaker. For the latest from RTP, please visit our website at www.regproject.org.

 

[Music]

 

This has been a FedSoc audio production.

Michael D. Faucette

Associate

Wiley Rein


Paul Helmke

Professor of Practice and Director, Civic Leaders Center

Paul H. O’Neill School of Public and Environmental Affairs, Indiana University


John Shu

Attorney and Legal Commentator


Enforcement & Agency Coercion

The Federalist Society and Regulatory Transparency Project take no position on particular legal or public policy matters. All expressions of opinion are those of the speaker(s).

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