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Biden DOJ proposes new pistol brace rule and model ‘red flag’ gun confiscation legislation

AR-15. (Gary Coronado/Los Angeles Times/TNS)
June 07, 2021

On Monday, the Department of Justice under President Joe Biden introduced model legislation states can use to pass extreme risk protective orders, commonly referred to as “Red Flag” laws, which allow law enforcement to seize a person’s firearms if a judge agrees that they pose a significant enough risk to themselves or others even if they’ve committed no crime.

The DOJ said it “will make it easier for states to craft ‘extreme risk protection orders’ authorizing courts to temporarily bar people in crisis from accessing firearms,” and that “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.”

The model legislation sets out an entire framework for courts to follow in granting firearms seizures against persons deemed to be at-risk even if they haven’t been charged or convicted of a crime. The system also includes language that would allow the owner of a firearm to retrieve their firearm if they can prove they are not the target of the protective order and their firearm has been seized in connection to a protective order against another individual.

The red flag model legislation leaves the period that a confiscatory protective order is in place up to the individual state, though it proposes time increments including six months, one year and two years that the order can last. The model does specifically limit the ability of a person targeted with such a confiscatory protective order to challenge the basis of the order. The proposed legislation states a person targeted with such a protective order will only have one chance to challenge the order through a “motion to terminate” the order and “the respondent shall have the burden of proving, by the same standard of proof required for issuance of such an order, that he or she does not pose a [significant danger/extreme risk/other appropriate standard specified by state law] of personal injury or death to himself or herself or another.”

If a respondent does not successfully have the order overturned, it will last until the order is over, a time period to be determined by the state. A petitioner for an order may also appeal for an additional “six months/one year/other appropriate time period specified by state law.”

The model red flag lesiglation does set penalties for petitioners who file a “false or harassing application,” subjects of protective orders who disobey the order and anyone who knowingly supplies a firearm to the subject of such an order.

Pistol Braces

The DOJ also introduced a proposed rule change that would amend the definition of a “rifle” to include any firearms with pistol stabilizing braces that have “objective design features and characteristics that indicate that the firearm is designed to be fired from the shoulder.” The proposed rule change appears intended to reclassify AR-style pistols as rifles and, which would subject them to a more heavily regulated short-barrelled rifle (SBR) classification for rifles with a barrel length less than 16 inches.

SBRs are an item regulated under the National Firearms Act (NFA). Special licensing is required to sell NFA items and someone wishing to purchase an NFA item will have to also submit a special form with the ATF and pay for a tax stamp for the NFA item, currently costing $200. NFA item owners must also inform the ATF of any changes to the description of the NFA items, changes of address or even interstate travel with an NFA item. As of March, the ATF takes about seven months to process the paperwork for transferring ownership of an NFA item. Violations of the NFA can result in up to 10 years imprisonment and a fine of up to $250,000 for a person or $500,000 for an organization.

Announcing the proposed legislation, the DOJ said it “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 proposed rule-making change on pistol-braces has been posted on the Burea of Alcohol Tobacco and Firearms and Explosives (ATF) website. The ATF language states the agency will “Amend the definition of ‘rifle’ in 27 CFR 478.11 and 479.11, respectively, by adding a sentence at the end of each definition to clarify that the term ‘rifle’ includes any weapon with a rifled barrel and equipped with an attached ‘stabilizing brace’ that has objective design features and characteristics that indicate that the firearm is designed to be fired from the shoulder.”

It is not clear what the ATF classifies as “objective design features and characteristics” indicative of the firearm being intended to be fired from one’s shoulder. However, Gun Owners of America argued that “virtually all (if not all) pistol braces on the market” would be subjected to more than four allowable “points” on the ATF’s new “worksheet,” thus classifying the firearm as an SBR.

The ATF did say the proposed rule would not affect braces designed with the intent to be used by individuals with disabilities.

The proposed rule change is open for public comment for 90 days once it is posted to the federal register website. The rule is similar to another proposed limit on arm braces, brought forth in December 2020, which was later withdrawn. The ATF said those who commented on the proposed rule in December 2020 would have to submit a new comment for this latest proposed rule.

“The Justice Department is determined to take concrete steps to reduce the tragic toll of gun violence in our communities,” Attorney General Merrick B. Garland said. “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.”

Aidan Johnston, Director of Federal Affairs for Gun Owners of America, called the proposed rule a “gross abuse of executive authority,” and added that “Millions of otherwise law-abiding gun owners now will be forced to destroy, register, or surrender their lawfully-acquired pistol-braced firearms.”