A Colorado gun rights organization has filed objections to proposed changes in federal firearms regulations that would bring many currently legal handguns under the same strict regulations that apply to machine guns.

In response to an executive order by President Biden, The Bureau of Alcohol, Tobacco, Firearms and Explosives and the Department of Justice have proposed new rules subjecting guns with stabilizing braces to the National Firearms Act, essentially reclassifying them as rifles rather than handguns. 

On April 8, speaking in the Rose Garden, President Biden pointed to the mass shooting in Boulder in which the shooter was wearing a stabilizing brace.

 “We want to treat pistols modified with stabilizing braces with the seriousness they deserve. A stabilizing brace…essentially, it makes that pistol a hell of a lot more accurate and a mini-rifle…I want to be clear that these modifications to firearms that make them more lethal should be subject to the National Firearms Act.”

Cody J. Wisniewski, Director of the Mountain States Legal Foundation’s Center to Keep and Bear Arms, filed comments objecting to the rule on September 8. Wisniewski told The Denver Gazette that the draft rule is both “incomprehensible” and unlawfully expands the two agencies’ powers in ways that Congress never authorized.

“The ATF and Department of Justice are illegally trying to rewrite federal criminal law,” said Wisniewski. “In those (laws) these terms are defined; what a rifle is…This is unelected bureaucrats in the Bureau of Alcohol, Tobacco Firearms and Explosives…seeking to amend federal law through a rule-making.”

This, says Wisniewski, is something only Congress can do.

ATF says one reason for the rule change is “the failure of the market to compensate for negative externalities,” which ATF says is “that individuals and manufacturers may try to use purported ‘stabilizing braces’ and affix them to firearms to circumvent the requirements of the NFA [National Firearms Act].”

In the proposed rule, ATF reverses seven years of prior rulings, saying “firearms with ‘stabilizing braces’ have been used in at least two mass shootings, with the shooters in both instances reportedly shouldering the ‘brace’ as a stock, demonstrating the efficacy as ‘short-barreled’ rifles of firearms equipped with such ‘braces.’”

ATF also says that its official advice letters, usually sent to manufacturers who submit a sample product for manufacturing approval, only apply to a specific configuration of a particular firearm when owned by an individual, meaning gun owners who have attached an aftermarket brace to a handgun must submit it for inspection and classification by the ATF’s Firearms Ammunition and Technology Branch to avoid potential criminal liability.

Even then, adding other accessories such as sights or a bipod mount at a later time may, according to ATF, turn an approved firearm into an illegal one.

ATF says there are 1.5 million individual owners who have handguns with braces. Wisniewski says at least seven million gun owners have braces on their handguns and ATF is grossly underestimating the fiscal impacts of the regulation.

Using ATF figures, the Office of Management and Budget estimates the fiscal impact to be between $121.7 million and $303.5 million annually for 10 years.

“The proposed regulation is almost incomprehensible,” said Wisniewski. “It’s incredibly complex, very difficult to understand. Not only do I think the ordinary American who’s not very familiar with firearms, won’t be able to understand it, I think a significant portion of the firearms owning population who are familiar with firearms would have difficulty interpreting it. I’ve even seen videos online already of organizations that are focused on gun rights and firearms technology working through (ATF’s) worksheet and getting it wrong.”

The penalties for getting it wrong are heavy fines and federal prison time.

Wisniewski says there are 209,044 submitted comments as of the end of the comment period on September 8 that ATF will have to wade through before publishing the final rule, which, he says, could take years.

Wisniewski pointed out that the closing of the comment period does not mean that the existing laws have changed. That only happens when the agencies issue the final rule and it is published in the Federal Register.