On December 23, 2020, Marvin G. Richardson, associate deputy director (ADD) of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE), withdrew the “notice and request for comments” posted on the Federal Register about a guidance letter entitled “Objective Factors for Classifying Weapons with ‘Stabilizing Braces’.” This is being hailed as a victory for gun-owners’ rights, but I’m not so sure.
Short background: In an August 3, 2020, cease-and-desist letter, ATF told firearms-maker Q that its Honey Badger AR pistol was a short-barrel rifle because of the Honey Badger’s stabilizing brace, and to stop making the pistol — unless Q registered all of the Honey Badgers as National Firearms Act–controlled short-barrel rifles.
On October 6, Q released the ATF cease-and-desist letter, prompting gun-owners of similar AR pistols to get involved, because if the Honey Badger got the retroactive NFA treatment for using a heretofore-approved brace, then millions of other AR-pistol owners might also suddenly find themselves holding NFA “contraband” that had once been perfectly legal to buy and own. Supposedly, making something illegal after the fact violates some principle in some old document that became active in 1789, but nobody takes that aged parchment seriously. Anyhoo, congresscritters got involved, and ATF suspended its cease-and-desist letter to Q.
Then the agency put up a “guidance letter” on December 18, 2020, that listed many “objective” factors that explained how the agency intended to decide if AR pistols were actually SBRs in the future. ATF posted the “Objective Factors for Classifying Weapons with ‘Stabilizing Braces’” document on the Federal Register for public comment.
On the day I looked at the Federal Register, there had been 48,354 comments entered. I picked 100 of the latest comments at random and tabulated them to fit in one of three categories: “pro-regulation,” “anti-regulation,” and “really, really anti-regulation [insert insult to ATF here].” I was a little shocked to find 100% of the comments in my sample were “anti” or “really anti.” I had expected say, 97%, would fit those categories.
ADD Richardson’s withdrawal letter said, “Upon further consultation with the Department of Justice and the Office of the Deputy Attorney General, ATF is withdrawing, pending further Department of Justice review, the notice and request for comments entitled “Objective Factors for Classifying Weapons with ‘Stabilizing Braces’,” that was published on December 18, 2020. 85 FR 82516. As explained in the notice, the proposed guidance was not a regulation. The notice informed and invited comment from the industry and public on a proposed guidance prior to issuing a final guidance document.
The withdrawal of the guidance does not change any law, regulation, or other legally binding requirement.”
The way I read Richardson’s letter, ATF did not rule out any of the possible negative outcomes. The withdrawal letter simply expressed ATF’s lack of interest in getting any more negative input. The Honey Badger and other AR pistols aren’t out of the regulatory woods yet.