The main problem is and always will be that no mater what the law says someone determined to acquire a gun is not going to care what the law says, after all they are probably already involved in something illegal.
The new rule (ATF final rule 2021R-08F) was published on the ATF’s website today and is set to be posted on the Federal Register on Monday, one day before the industry’s largest trade show, SHOT Show. The regulation will affect millions of Americans that currently own pistol stabilizing devices. What has been considered pistols for years will now be regarded as short barreled rifles (SBR) and be subjected to the National Firearms Act (NFA).
The proposed rule used a form known as “Worksheet 4999” to determine if a firearm equipped with a pistol brace would be considered an SBR by using a point system. The ATF ditched the form in favor of a widespread declaration that almost every pistol equipped with a brace of any kind would be considered an SBR.
“Worksheet 4999 was intended to ensure uniform consideration and application of the statutory definition of those terms. Based on the comments received, the Department agrees that the proposed Worksheet 4999 and point system did not achieve these intended purposes,” the Final Rule reads.
Under the new rule, any firearm that is “designed or redesigned made or remade and intended to be fired from the shoulder” will be considered an SBR.
This designation includes devices such as pistol stabilizing braces which the ATF assumes the shooter installed to be able to shoulder the gun. Also, if a firearm merely has the surface area that would allow it to be fired from the shoulder, the ATF might consider it an SBR if it has a weight or length consistent with a rifle.
Any pistol with a length of pull that is consistent with that of what would be found in a rifle would be considered an SBR. Any adjustable attachments, such as a multi-position buffer tube, would also automatically make the pistol an SBR. If the shooter places an optic on their firearm that requires an eye relief that is consistent with what’s used on a rifle, such as a scope, then that gun will also be considered a short barreled rifle. If a firearm has the surface area to be fired from the shoulder, such as a firearm equipped with a nonadjustable buffer tube, then that will be considered an SBR, basically making every AR-15 pistol and SBR.
“Whether the surface area that allows the weapon to be fired from the shoulder is created by a buffer tube, receiver extension, or any other accessory, component, or other rearward attachment that is necessary for the cycle of operations,” the document reads.
The ATF will also look at marketing material offered by the manufacturer to determine if installing that device on a firearm will convert it to an SBR. Several lawsuits involve companies suing over California’s law preventing the advertisement of firearms to people under the age of 18, including safety classes.
The ATF will also look at how the people in the firearms community use a gun to determine whether it is an SBR. You could use a device as intended by the manufacturer and still violate the rule if others use it in a way that is not consistent with how the manufacturer designed the device to be used.
There is a 120-day grace period to apply for a tax stamp for any device now considered an SBR that was previously considered a pistol.
Although the ATF states a 120-day grace period to register a pistol as an SBR, the ATF only promises not to enforce NFA rules on these devices for 60 days. The ATF will give a tax forbearance for the $200 tax stamp fee. A tax forbearance means that the ATF will not collect the $200 tax fee, although, by the law, you still owe the fee; it just will not be collected. The rule is set up the way it is because the ATF cannot waive a tax.
Gun owners must use e-Forms to file for the tax stamp. Only individuals would qualify for the tax stamp on devices with pistol stabilizing braces. If someone wanted to put the firearm into a trust, they must first register as an individual and then pay the $200 transfer fee to transfer it into a trust. Many people who own NFA items prefer having their firearms in a trust.
Some states do not allow for SBRs. Gun owners in those states do have options.
They could add a 16-inch or greater barrel, converting the firearm from a pistol into a rifle. In the past, the ATF has stated that a pistol could never be converted into a rifle, but the regulation seems to change this determination. The pistol stabilizing device could also be removed, and the gun owner can modify their firearms not to be able to accept a pistol brace. The gun owner also has the option of destroying the firearm. The final option would be turning the gun into the ATF for zero compensation.
The new regulation is expected to cost gun owners over $260 million. It is expected to cost the federal government over $3 million. In addition to the cost, it will put an increasing burden on the already overwhelmed NFA division of the ATF. the ATF claims that the average wait time will be 90 days, although Silencer Shop is showing a wait time of eight months for a tax stamp. Not only will it bog down the new tax stamp applications for SBRs, but it might drastically increase the wait time for other NFA items, such as sound suppressors.
Ammoland News reached out to SB tactical for a comment on the final rule but has not received one at the time of this writing.
About John Crump
John is a NRA instructor and a constitutional activist. John has written about firearms, interviewed people of all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons and can be followed on Twitter at @crumpyss, or at www.crumpy.com.
U.S.A. –-(AmmoLand.com)- Illinois Gov. J.B. Pritzker quickly became furious when what appears to be a majority of Prairie State county sheriffs announced they will not enforce the state’s new restrictive gun control law banning so-called “assault weapons” and “high-capacity” magazines.
According to MyStateLine, the new law requires current owners of affected guns to register them with the State Police. It also bans the future sales “of about 100 different semi-automatic pistols, shotguns, and rifles.”
Pritzker, who speedily signed the legislation, had a fit when sheriffs began telling their constituents they won’t enforce the ban. According to WGN and WTVO, “As are all law enforcement all across our state and they will in fact do their job or they won’t be in their job,” Pritzker told reporters.
But Richard Pearson, executive director of the Illinois State Rifle Association, which is preparing to file a federal lawsuit against the new law, told Ammoland News in a telephone conversation sheriffs are elected, and Pritzker cannot fire them.
“I don’t know how much (the resistance by sheriffs) will play into” the lawsuit scenario, Pearson said.
But he does know how the public is reacting, and up and down the state, “people are furious.” Since Pritzker signed the legislation—HB 5471—Pearson said the ISRA office telephones have been “ringing off the hook.”
In addition to banning future sales of semiautomatic firearms, the new law bans .50-caliber firearms.
Likewise, according to MyStateLine, Winnebago County Sheriff Gary Caruana, Lee County Sheriff Clayton Whelan and Ogle County Sheriff Brian VanVickle shared the same sentiments. In their statement, they said HB 5471 “is a clear violation of the 2nd Amendment.”
ShawLocal.com reported that DeKalb County Sheriff Andy Sullivan, among others, issued a statement drafted by the Illinois Sheriff’s Association.
“As the custodian of the jail and chief law enforcement official,” Sullivan said, “[I] proclaim that neither myself nor my office will be checking to ensure that lawful gun owners register their weapons with the State, nor will we be arresting or housing law-abiding gun individuals that have been arrested solely with non-compliance of this Act.”
As it turns out, Illinois is not the only state where sheriffs are fed up with gun control laws pushed by governors. Out in Washington State, where Democrat Gov. Jay Inslee and Attorney General Bob Ferguson are calling for an “assault weapon” ban, the Washington State Sheriff’s Association issued a letter declaring, “We…believe the proposed restrictions will serve to erode constitutionally protected rights without addressing the root causes of violent crime. We are particularly concerned with the proposed so-called ‘assault weapons ban’ and ‘permit to purchase’ laws.
“Restrictions that shift focus from offenders to law-abiding citizens send the wrong message and erode constitutional guarantees upheld by the United States Supreme Court,” the letter adds.
“The Governor’s proposed legislation is also inconsistent with Article 1, Section 24 of the Washington State Constitution, which mirrors the language of the Federal Second Amendment,” the sheriffs say. “The new proposals to restrict gun ownership would further infringe on rights that have been clearly and repeatedly established.”
Pritzker and Illinois Democrats call their new law the “Protect Illinois Communities Act.” County sheriffs now saying they won’t enforce the law’s provisions evidently believe this law’s title is wholly erroneous.
Published reports quote Ogle County’s VanVickle, who observed, “This appears to be another rush to judgment on a bill that was introduced with very little oversight and very little public review.”
Concurring, Stephenson County Sheriff Steve Stovall stated, “There is so many unknowns, it’s another one of those laws that passed that they put unrealistic expectations out there, and there is no way to follow those things up.”
Pearson, at the ISRA offices, told AmmoLand one development in the aftermath of Pritzker’s bill signing is that his organization’s membership numbers are climbing. Every year, ISRA sponsors an event in Springfield, the state capital, that attracts several thousand gun owners. This rally and march are called IGOLD, and Pearson said this year’s event, scheduled March 29, will likely see a record turnout if current emotions continue running high.
As noted by KSDK News, Madison County Sheriff Jeff Connor and Tom Haine, the county’s State’s Attorney, issued a joint statement that noted, “…We expect a strong court challenge to HB 5471 in short order. We trust that this legislative overreach will not stand. In the meantime, we remain focused on reducing violent crime. Therefore, pending further direction by the courts, the Madison County Sheriff’s Office will not expend its limited resources to check whether otherwise law-abiding gun owners have registered their weapons with the State, nor will the Madison County Sheriff’s Office be arresting or housing otherwise law-abiding individuals solely due to non-compliance with HB 5471.”
Writing on Facebook, Stephenson County’s Stovall summed it up: “Let me be clear, this piece of legislation will do nothing to make our communities safer! Criminals don’t follow the laws. That is what makes them criminals. This unconstitutional legislation infringes on our 2nd Amendment Rights, which makes any enforcement of HB5471 contrary to my oath of office.”
Pretty soon, that sentiment will likely be at the heart of ISRA’s promised federal lawsuit.
“I decided I did not want to be required to comply with this,” Mr. Truslow said of the law, which went into effect Jan. 1.
San Jose’s law, the first of its type in the nation, mandates that gun owners in the city of nearly one million have insurance covering costs related to accidental gunshot injuries or deaths. The law doesn’t require policies to cover criminal misuse of firearms.
The law was pushed by former Mayor Sam Liccardo after a series of mass shootings in the area. Mr. Liccardo, a Democrat who recently stepped down due to term limits, said he thinks the law ultimately will result in insurers offering lower premiums to gun owners who safely store and handle their firearms, much like auto insurers give discounts for good driving.
Former San Jose Mayor Sam Liccardo says he began to push for the insurance law after mass shootings in the area.PHOTO: HAVEN DALEY/ASSOCIATED PRESS
“Just as insurance was a mechanism to dramatically improve road safety . . . insurance with guns could similarly have that effect,” Mr. Liccardo said.
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Gunowners who object to the law, including Mr. Truslow, said they already took safety measures such as keeping their firearms in safes. City officials should spend more time focusing on fighting gun violence, he said.
Gun-rights groups filed lawsuits in response to the ordinance last year before it went into effect. A federal judge tossed out the suits but said that some of the claims could be refiled because the complaints had been drafted before the U.S. Supreme Court decided an important Second Amendment case last summer known as New York State Rifle and Pistol Association v. Bruen.
In response, gun-control advocates in state and local governments have looked toward new approaches that could hold up in court. California last year passed a law allowing individuals to sue gun makers over violations of the state’s gun restrictions, basing on a Texas law allowing private individuals to sue to enforce abortion restrictions.
New Jersey Democratic Gov. Phil Murphy in December signed a law akin San Jose’s insurance law, which requires at least $300,000 in insurance coverage related to injury, death, or property damage for people with permits to carry guns in public.
The San Jose law applies to all gun owners, regardless of whether they carry them in public.
Chuck Michel, president of the California Rifle & Pistol Association, said his organization is preparing new legal challenges to San Jose on Second Amendment grounds. “This is just a way to make it too costly to own a gun,” Mr. Michel said.
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A city spokeswoman didn’t respond to a request for comment.
Advocates on both sides of America’s gun-rights debate say they are watching the San Jose law closely. The measure’s success or failure could determine whether such laws are adopted elsewhere.
A California state lawmaker has proposed a bill to require gun-liability insurance statewide.
Obtaining the insurance required by San Jose likely won’t be difficult for most people, said Janet Ruiz, a spokeswoman for the Insurance Information Institute, an industry trade group. Most homeowners- and renters-insurance policies cover the type of liability described in the new law, she said.
A vigil at San Jose City Hall in 2021 honored victims of a shooting.PHOTO: AMY OSBORNE/AGENCE FRANCE-PRESSE/GETTY IMAGES
A few insurers offer stand-alone gun-liability policies, but most don’t, according to the institute.
Mr. Liccardo said the law doesn’t call for San Jose’s police department to proactively check whether people with firearms have insurance. But gun owners will be required to carry proof of insurance with their firearms much as drivers do, he said.
As one example, he said officers could check if they responded to a domestic violence call and a gun was present. Those not in compliance face fines of up to $1,000.
Accidental shootings accounted for 1% of all gun-related deaths in the U.S. in 2020, according to the Centers for Disease Control and Prevention. The number of accidental shooting deaths ticked up in 2020, but in general has been falling for decades, according to the CDC.
California Democrats returned to Sacramento this week with a gun-safety agenda following a near-record year for U.S. mass shootings. But their legal obstacles loom higher than ever.
The Supreme Court this summer invalidated one of the state’s longstanding concealed carry requirements, and a federal judge in San Diego has blocked a series of the state’s restrictive gun policies. Meanwhile, Second Amendment groups will sue “anything that walks,” said Democratic Assemblymember Jesse Gabriel, who chairs the Legislature’s Gun Violence Prevention Working Group.
As the challenges mount, it’s up to lawmakers to find a way around them, said Bob Hertzberg, a former California legislator whose bill could be heading to the Supreme Court.
“We have these horrible deaths every year,” Hertzberg said. “How do we as lawmakers try to figure out creative ways that reduce this horrible tragedy?”
A group of Democratic legislators insist they are unfazed by the legal threats as they pursue laws they know other blue states are likely to emulate. They’ve already introduced at least five bills, with more on the way. Here’s what you need to know about California gun safety advocates’ hopes for 2023 — and the obstacles they may face.
This year, advocates hope to tax the gun industry and defy the Supreme Court
Sacramento veterans and newcomers were quick to begin pushing gun laws in the new legislative session, with bills that target gun violence and the firearms industry. Catherine Blakespear, a first-year state senator, submitted one on the day she was sworn in.
Blakespear’s Senate Bill 8 is an open-ended intent bill that will seek to prevent gun violence; the senator plans to fill it in with details in the coming weeks.
Other lawmakers are advocating for do-overs of past legislation. State Sen. Anthony Portantino is back with Senate Bill 2, which is meant to protect the state’s concealed-carry law following the Supreme Court’s Bruen decision in New York. His last effort to do so failed narrowly in the Assembly after some lawmakers questioned whether the bill would hold up in court. And Gabriel is again championing a tax on the sale of firearms and ammunition to fund gun violence prevention initiatives.
Gabriel also has a new bill that would allow Californians to add themselves to a firearms Do Not Sell list, and another that would prohibit those under domestic violence protection orders from owning firearms for three years after their order ends.
Even if the proposals make it out of the Legislature, their long-term fate will hinge on surviving a thorny legal landscape.
“If and when we pass this tax on the sale of guns and ammunition, I have no doubt that it will be challenged in court,” Gabriel said. “But the fact that someone’s going to file a lawsuit … that’s not a reason not to move forward.”
Phil Ting, a Democratic assemblymember from San Francisco, said he expects to see a legislative push this year to make more research on firearms and gun violence publicly available.
“The gun lobby’s pushed very hard to have no information,” Ting said. “They’d like this to be perceived as individual accidents and incidents, when we know that the more guns there are on the street, the more deaths there are.”
States must face reality of a 6-3 conservative Supreme Court majority
Lawmakers in California and elsewhere say they are eager to impose restrictions on guns after nearly 650 mass shootings across the country last year, the second-highest number on record. But the reality is that the legal landscape has never been more hostile to firearm regulations at the state level.
“California is, more than ever before, having a problem defending its gun control laws,” said Adam Winkler, a constitutional law expert at UCLA. “A lot of widely accepted, long-standing rules are now being called into question nationwide.”
In June, the Supreme Court didn’t just strike down a New York law that restricted concealed-carry permits in the state. The majority opinion in the Bruen case, backed by the 6-3 conservative majority on the high court, opened the door to challenges on a wide range of Second Amendment policies that restrict firearms. Gun rights advocates have already taken up the invitation, bringing challenges across the nation that are likely to prevail under the newly established framework set by the Supreme Court.
Just about any new legislation in California faces a likely challenge from advocates such as the Second Amendment Foundation.
“California and other states need to repeal anti-gun rights laws, not pass new ones, or we beat them in court,” said Alan Gottlieb, the organization’s executive vice president.
First up may be Senate Bill 1327, a bill modeled after a Texas law that allows private lawsuits against those who receive or help provide abortions. Newsom signed SB 1327 into law last year, with the express intent of inviting a legal challenge. As expected, California’s new law has already been overturned in federal court, and Hertzberg said he expects it to make its way to the Supreme Court.
Newsom versus Benitez — again.
California’s efforts to tighten gun restrictions have hit a wall with federal Judge Roger Benitez, an appointee of former President George W. Bush who overturned the state’s assault weapons ban in 2021. Benitez has earned a reputation for making controversial statements about gun policy, including the false claim that vaccines have killed more Americans than mass shootings.
For gun safety advocates, Benitez is a scary figure: Second Amendment groups have strategically filed lawsuits in his district, they say, because they know he will likely hand them a favorable ruling. He lurks in the minds of lawmakers, too: Gabriel said Benitez is “a great example of an extremely activist judge with views that are far outside of the mainstream.”
Several of Benitez’s rulings overturning state gun laws were under appeal before Bruen. Now, they’ve been sent back to him. “Years of litigation … and we’re right back down to square one with the same judge whose opinions were already overturned by the Ninth Circuit,” said Ari Freilich, Gifford Law Center’s State Policy Director.
When Benitez struck down SB 1327, it was déjà vu for both himself and Newsom, who have publicly antagonized each other. The governor blasted the judge after he initially overturned the assault weapons ban, calling him a “wholly-owned subsidiary of the gun lobby and the National Rifle Association.”
“We need to call this federal judge out,” Newsom said at a June 2021 news conference. “He will continue to do damage. Mark my words.”
Rethinking a century of gun policy
While lawmakers wait for the Supreme Court to clarify its interpretation of the Second Amendment, Benitez is already forcing state lawyers to defend California’s slate of restrictions. Last month, he asked lawyers to draft a 97-year history of gun restrictions in the state — beginning with the ratification of the Second Amendment and ending 20 years after the ratification of the 14th.
The request emerged from the Supreme Court’s ruling in Bruen, which stated that judges must employ an interpretation “rooted in the Second Amendment’s text, as informed by history.”
The judge will use this history to aid his analysis — and to help determine the fate of gun safety laws in California, new and old.
Bruen has forced attorneys across the country to spend valuable time doing historical research on Second Amendment law, Winkler said. He called the surge in litigation a “huge burden” for state DOJs across the country.
The California DOJ declined to answer questions regarding the agency’s workload. But in a statement to POLITICO, a department spokesperson confirmed that the Supreme Court’s decision triggered a range of lawsuits.
For state justice departments across the country, Winkler said, more lawsuits mean more work.
“They have limited resources, and they have to expend those resources defending this gun law, rather than pursuing other cases,” Winkler said. “There’s only so many people you have working in the office.”