DOJ to place AR-Pistols Under National Firearms Act?

Biden immediately exploited the Boulder Colorado mass killings in April, one by an Islamic fanatic and another in Atlanta by an alleged unhinged customer of a spa in Atlanta by issuing Executive Orders: the orders, which pushed forward some of Biden’s social schemes as already in the works before slapped on the table. The Order was “to address the gun violence public health epidemic.”

But this Administration will not wait for Congress to act to take its own steps – fully within the Administration’s authority and the Second Amendment – to save lives. Today, the Administration is announcing the following six initial actions:

The Justice Department, within 30 days, will issue a proposed rule to help stop the proliferation of “ghost guns.” We are experiencing a growing problem: criminals are buying kits containing nearly all of the components and directions for finishing a firearm within as little as 30 minutes and using these firearms to commit crimes. When these firearms turn up at crime scenes, they often cannot be traced by law enforcement due to the lack of a serial number. The Justice Department will issue a proposed rule to help stop the proliferation of these firearms.

The Justice Department, within 60 days, will issue a proposed rule to make clear when a device marketed as a stabilizing brace effectively turns a pistol into a short-barreled rifle subject to the requirements of the National Firearms Act. The alleged shooter in the Boulder tragedy last month appears to have used a pistol with an arm brace, which can make a firearm more stable and accurate while still being concealable.

The Justice Department, within 60 days, will publish model “red flag” legislation for states. Red flag laws allow family members or law enforcement to petition for a court order temporarily barring people in crisis from accessing firearms if they present a danger to themselves or others. The President urges Congress to pass an appropriate national “red flag” law, as well as legislation incentivizing states to pass “red flag” laws of their own. In the interim, the Justice Department’s published model legislation will make it easier for states that want to adopt red flag laws to do so.

The Administration is investing in evidence-based community violence interventions. Community violence interventions are proven strategies for reducing gun violence in urban communities through tools other than incarceration. Because cities across the country are experiencing a historic spike in homicides, the Biden-Harris Administration is taking a number of steps to prioritize investment in community violence interventions.

Upon issuance of the Order, The Second Amendment Foundation warned the Biden Administration that “if it steps over its legal authority with any executive action or order regarding the constitutionally-protected right to keep and bear arms, legal action is a certainty.

“President Joe Biden has announced what an administration official calls “an initial set of actions” on gun control that include both executive and legislative action. His proposals will cover so-called “ghost guns,” a proposed national “red flag” law and incentives to the states to adopt similar state-level measures and change the designation of stabilizing braces, which are used by many shooters on AR15-type semiautomatic pistols.”

June 7 2021

Justice Department Issues Proposed Rule and Model Legislation to Reduce Gun Violence

New Steps Would Enhance Enforcement of the National Firearms Act and Aid States in Drafting “Extreme Risk Protection Order” Laws

Department of Justice announced two new steps to help address the continuing epidemic of gun violence affecting communities across the country. First, the department issued a notice of proposed rulemaking that makes clear that when individuals use accessories to convert pistols into short-barreled rifles, they must comply with the heightened regulations on those dangerous and easily concealable weapons. Second, the department published model legislation to help states craft their own “extreme risk protection order” laws, sometimes called “red flag” laws. By sending the proposed rule to the Federal Register and publishing the model legislation today, the department has met the deadlines that the Attorney General announced alongside President Biden in April. 

“The Justice Department is determined to take concrete steps to reduce the tragic toll of gun violence in our communities,” said Attorney General Merrick B. Garland. “Today we continue to deliver on our promise to help save lives while protecting the rights of law-abiding Americans. We welcome the opportunity to work with communities in the weeks and months ahead in our shared commitment to end gun violence.”

The department issued a notice of proposed rulemaking that would make clear that the statutory restrictions on short-barreled rifles apply to pistols that are equipped with certain stabilizing braces and intended to be fired from the shoulder. The National Firearms Act imposes heightened regulations on short-barreled rifles because they are easily concealable, can cause great damage, and are more likely to be used to commit crimes. But companies now sell accessories that make it easy for people to convert pistols into these more dangerous weapons without going through the statute’s background check and registration requirements. These requirements are important public safety measures because they regulate the transfer of these dangerous weapons and help ensure they do not end up in the wrong hands. The proposed rule would clarify when these attached accessories convert pistols into weapons covered by these heightened regulations.

Once the proposed rule is published in the Federal Register, the public will have 90 days to submit comments.  To view the Notice of Proposed Rulemaking, please see here.

The department also published model legislation and detailed commentary that will make it easier for states to craft “extreme risk protection orders” authorizing courts to temporarily bar people in crisis from accessing firearms. By allowing family members or law enforcement to intervene and to petition for these orders before warning signs turn into tragedy, “extreme risk protection orders” can save lives. They are also an evidence-based approach to the problem. The model legislation, developed after consultation with a broad range of stakeholders, provides a framework that will help more states enact these sensible laws.

To read the model legislation, please see here.

ATF: The following weapons are regulated under the National Firearms Act (NFA):

1. A shotgun having a barrel or barrels of less than 18 inches in length;
2. A weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length;
3. A rifle having a barrel or barrels of less than 16 inches in length;
4. A weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length;
5. Any other weapon, as defined in subsection (e);
6. A machinegun;
7. Any silencer (as defined in section 921 of title 18, United States Code); and
8. A destructive device.

2011

ATF was asked to determine whether such a pistol, once returned to a pistol configuration from a rifle, becomes a “weapon made from a rifle” as defined under the National Firearms Act (NFA).
Some manufacturers produce firearm receivers and attachable component parts that are designed to be assembled into both rifles and pistols. The same receiver can accept an interchangeable shoulder stock or pistol grip, and a long (16 or more inches in length) or short (less than 16 inches) barrel. These components are sold individually, or as unassembled kits. Generally, the kits include a receiver, a pistol grip, a pistol barrel less than 16 inches in length, a shoulder stock, and a rifle barrel 16 inches or more in length.

Nonetheless, if a handgun or other weapon with an overall length of less than 26 inches, or a barrel or barrels of less than 16 inches in length is assembled or otherwise produced from a weapon originally assembled or produced only as a rifle, such a weapon is a “weapon made from a rifle” as defined by 26 U.S.C. 5845(a)(4). Such a weapon would not be a “pistol” because the weapon was not originally designed, made, and intended to fire a projectile by one hand.
Held, a firearm, as defined by the National Firearms Act (NFA), 26 U.S.C. 5845(a)(3), is made when unassembled parts are placed in close proximity in such a way that they:
(a) Serve no useful purpose other than to make a rifle having a barrel or barrels of less than 16 inches in length (e.g., a receiver, an attachable shoulder stock, and barrel of less than 16 inches in length); or
(b) Convert a complete weapon into such an NFA firearm, including – (1) A pistol and attachable shoulder stock; and

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(2) A rifle with a barrel of 16 inches or more in length, and an attachable barrel of less than 16 inches in length.
Such weapons must be registered and are subject to all requirements of the NFA.
Held further, a firearm, as defined by 26 U.S.C. 5845(a)(3) and (a)(4), is not made when parts in a kit that were originally designed to be configured as both a pistol and a rifle are assembled or re-assembled in a configuration not regulated under the NFA (e.g., as a pistol, or a rifle with a barrel of 16 inches or more in length).
Held further, a firearm, as defined by 26 U.S.C. 5845(a)(3) and (a)(4), is not made when a pistol is attached to a part or parts designed to convert the pistol into a rifle with a barrel of 16 inches or more in length, and the parts are later unassembled in a configuration not regulated under the NFA (e.g., as a pistol).
Held further, a firearm, as defined by 26 U.S.C. 5845(a)(4), is made when a handgun or other weapon with an overall length of less than 26 inches, or a barrel or barrels of less than 16 inches in length, is assembled or produced from a weapon originally assembled or produced only as a rifle. Such weapons must be registered and are subject to all requirements of the NFA.

1934 National Firearms Act
The NFA was originally enacted in 1934. Similar to the current NFA, the original Act imposed a tax on the making and transfer of firearms defined by the Act, as well as a special (occupational) tax on persons and entities engaged in the business of importing, manufacturing, and dealing in NFA firearms. The law also required the registration of all NFA firearms with the Secretary of the Treasury. Firearms subject to the 1934 Act included shotguns and rifles having barrels less than 18 inches in length, certain firearms described as “any other weapons,” machine guns, and firearm mufflers and silencers.

While the NFA was enacted by Congress as an exercise of its authority to tax, the NFA had an underlying purpose unrelated to revenue collection. As the legislative history of the law discloses, its underlying purpose was to curtail, if not prohibit, transactions in NFA firearms. Congress found these firearms to pose a significant crime problem because of their frequent use in crime, particularly the gangland crimes of that era such as the St. Valentine’s Day Massacre. The $200 making and transfer taxes on most NFA firearms were considered quite severe and adequate to carry out Congress’ purpose to discourage or eliminate transactions in these firearms. The $200 tax has not changed since 1934.

As structured in 1934, the NFA imposed a duty on persons transferring NFA firearms, as well as mere possessors of unregistered firearms, to register them with the Secretary of the Treasury. If the possessor of an unregistered firearm applied to register the firearm as required by the NFA, the Treasury Department could supply information to State authorities about the registrant’s possession of the firearm. State authorities could then use the information to prosecute the person whose possession violated State laws. For these reasons, the Supreme Court in 1968 held in the Haynes case that a person prosecuted for possessing an unregistered NFA firearm had a valid defense to the prosecution — the registration requirement imposed on the possessor of an unregistered firearm violated the possessor’s privilege from self-incrimination under the Fifth Amendment of the U.S. Constitution. The Haynes decision made the 1934 Act virtually unenforceable.

Title II of the Gun Control Act (GCA) of 1968

Title II amended the NFA to cure the constitutional flaw pointed out in Haynes. First, the requirement for possessors of unregistered firearms to register was removed. Indeed, under the amended law, there is no mechanism for a possessor to register an unregistered NFA firearm already possessed by the person. Second, a provision was added to the law prohibiting the use of any information from an NFA application or registration as evidence against the person in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration. In 1971, the Supreme Court reexamined the NFA in the Freed case and found that the 1968 amendments cured the constitutional defect in the original NFA.

Title II also amended the NFA definitions of “firearm” by adding “destructive devices” and expanding the definition of “machine gun.”

Firearm Owners’ Protection Act

In 1986, this Act amended the NFA definition of “silencer” by adding combinations of parts for silencers and any part intended for use in the assembly or fabrication of a silencer. The Act also amended the GCA to prohibit the transfer or possession of machine guns. Exceptions were made for transfers of machine guns to, or possession of machine guns by, government agencies, and those lawfully possessed before the effective date of the prohibition, May 19, 1986.