Tax stamps and the administrative state
Big news in the firearms world for the past week has been the ATF’s new ruling on pistol stabilizing braces. Essentially, through a bunch of historical accidents, there’s a genuinely illogical law, and the interactions of that illogical law with technological process is pretty unsatisfying for everyone involved.
(Many other people have done a better job summarizing the law than I can here; I recommend this video from “Gun Jesus”)
In 1934, the National Firearms Act was created with the intent of essentially banning a bunch of types of firearms. Since this was unconstitutional, they did it through the expedient of a $200 per item tax (similar to now narcotics were regulated initially…). This was a huge tax at the time (but not indexed for inflation, so it’s largely irrelevant now, at least as a financial cost). “Normal” rifles and shotguns were not the target. Items restricted were machine guns (fully automatic weapons), silencers (sound suppressors), short barreled rifles, short barreled shotguns, “any other weapon” (disguised firearms, among other things), and later, “destructive devices” (explosives). Notice what’s missing? Pistols. They were removed during negotiations, despite being the primary target of the ban! (And objectively handguns are responsible for the vast majority of gun crime, but also for many legitimate self defense uses, while being nearly irrelevant in war.)
The restrictions on short barreled rifles and shotguns were not there because those were so incredibly destructive compared to regular rifles, but because they could be alternatives to pistols if not themselves regulated at least as strictly as pistols.
Over the years, people started using “pistol stabilizing braces” on pistols in a way which made them cosmetically and functionally closer to rifles. ATF ruled that these were ok (although never really happy with it), but then last summer there was increased political desire to ban them, and ATF went through a public rulemaking process to do so. All without Congress; this is an administrative interpretation of laws from 1934, 1968, and 1986, plus some court interpretations.
What’s crazy is now there are 10-40 million of these devices, purchased and possessed legally, out there. ATF has said it’s giving a 120 window to register devices with pistol braces as short barreled rifles (and waiving the $200 tax stamp fee), although there are some problems with this — SBRs are subject to interstate transport difficulty (you need to notify ATF in advance, although it can be a 360 day period between/among various locations…), and certain states like California ban SBRs outright.
There will probably be some legal challenges, but this is all an unpleasant interaction of the administrative state, arbitrary regulations, and technological progress.
Ironically, other items covered by NFA (silencers) are the subject of legal challenges elsewhere to remove them from NFA, and both the SBR rules and the silencer challenges might curtail or overturn the NFA on constitutional grounds as well. One basis for restricting firearms despite 2A has been “firearms not in common use” being restricted — hard to argue that something legally owned in quantity 40 million is not “common use”.
(Puerto Rico doesn’t recognize SBRs as a thing; they’re just treated as rifles. Machine guns and suppressors are both banned explicitly by local law (although commonly owned by criminals), and I believe SBS, AOW, and DD are also banned (although the law isn’t very clear: https://bvirtualogp.pr.gov/ogp/Bvirtual/leyesreferencia/PDF/168-2019.pdf)