Cassidy,Republican Colleagues Call to Stop Enforcing Rule Violating Second Amendment Rights

WASHINGTON - U.S. Senators Bill Cassidy, M.D. (R-LA), John Barrasso (R-WY), John Cornyn (R-TX), Kevin Cramer (R-ND), Mike Crapo (R-ID), Ted Cruz (R-TX), Steve Daines (R-MT), Lindsey Graham (R-SC), Cindy Hyde-Smith (R-MS), John Hoeven (R-ND), Jim Justice (R-WV), James Risch (R-ID), and Tommy Tuberville (R-AL) urged Acting Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) Daniel Driscoll to cease the agency's enforcement of a vacated Biden era rule labeling braced pistols as short-barrel rifles under the National Firearms Act (NFA).

"The new Rule, which classified virtually all braced pistols as short-barrel rifles under the NFA, exposed millions of Americans to criminal penalties … Thankfully, the Rule was soon vacated in August 2024, albeit on procedural grounds, following rulings by both the Fifth and Eighth Circuits. Now, however, it appears that ATF has no intention of backing down," wrote the senators.

"We believe that any attempt to extend the NFA's onerous requirements to the untold millions of citizens who already own braced pistols cannot pass constitutional muster," continued the senators.

Read the full letter here or below.

We write with deep concern regarding the Bureau of Alcohol, Tobacco, Firearms and Explosives' (ATF) attempts to continue enforcing the legal theory behind its unconstitutional and since-vacated rule entitled: "Factoring Criteria for Firearms with an Attached Stabilizing Brace" (Rule). Issued by the Biden Administration in 2023, this Final Rule expanded the scope of the National Firearms Act (NFA) to include virtually all pistols equipped with stabilizing braces. In our view, this since-vacated Rule does not comply with the statute and cannot pass constitutional muster, and we urge ATF to cease any efforts to continue enforcing it either in substance or in form.

First developed around 2012, stabilizing braces attach to the rear of a pistol and allow it to be braced against, strapped to, or hooked around the forearm, giving the user more control and stability when firing. ATF initially determined that using a stabilizing brace would not convert the weapon into a short-barrel firearm under the NFA. And over the course of the next decade, millions of Americans relied on that advice, purchasing stabilizing braces for the purpose of improving the safety and stability of their firearms. Indeed, a Congressional Research Service report estimates that there were between 10 and 40 million pistol braces in circulation as of 2021. Current ownership rates are likely to be far higher.

In 2023, the Biden Administration issued its now-vacated rule reversing more than a decade of guidance overnight. The new Rule, which classified virtually all braced pistols as short-barrel rifles under the NFA, exposed millions of Americans to criminal penalties if they did not surrender their lawfully acquired property to the government, dismantle or destroy it, or comply with the NFA's onerous registration and fee requirements. In fact, it's estimated that only 0.6% to 8% of braced pistols were successfully registered within the allotted 120-day "amnesty" period, leaving millions of Americans who had acquired or assembled their braced pistols in good faith and had never misused them as potential felons. Thankfully, the Rule was soon vacated in August 2024, albeit on procedural grounds, following rulings by both the Fifth and Eighth Circuits.

Now, however, it appears that ATF has no intention of backing down. In another ongoing case brought by the State of Texas and Gun Owners of America, ATF suggests that it can and will continue enforcing the underlying legal theory behind the Rule-that braced pistols qualify as short-barreled rifles under the NFA. In court documents filed on March 16th, ATF acknowledged that it "continue[s] to enforce the . . . regulation of short-barreled rifles against some brace-equipped pistols, even though the Rule has been universally vacated." According to ATF, this "should come as no surprise" because the absence of a formal rule does not prevent ATF from interpreting and carrying out its statutory obligations.

In our view, the Final Rule cannot be salvaged either in substance or in form. We believe that any attempt to extend the NFA's onerous requirements to the untold millions of citizens who already own braced pistols cannot pass constitutional muster. In Heller v. District of Columbia, the Supreme Court affirmed the right of individuals to keep and bear arms for self-defense. The Court struck down a ban enacted by the District of Columbia on handgun registration, noting that handguns are the "quintessential self-defense weapon." Again, in New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court made clear that the Second Amendment protects firearms that are "in common use for self-defense today" and which fall outside the category of "dangerous and unusual" weapons historically subject to regulation.

Stabilizing braces, like the handguns they modify, are neither dangerous nor unusual. They are owned by tens of millions of Americans who rely on these attachments to improve the stability of their handguns. Far from being a dangerous modification, pistol braces make these weapons safer. As Judge Willett noted in his concurrence in the Fifth Circuit litigation:

Rearward attachments, besides making a pistol less concealable, improve a pistol's stability, and thus a user's accuracy. Accuracy, in turn, promotes safety. Even for attachments that convert a pistol into a rifle under the statutes, ATF has not identified any historical tradition of requiring ordinary citizens to endure a lengthy, costly, and discretionary approval process just to use accessories that make an otherwise lawful weapon safer.

Ultimately, we agree with Judge Willett that "common, safety-improving modifications" like pistol braces fall under the protection of the Second Amendment. And we fail to see any compelling historical analogue for subjecting such safety-improving devices to the "lengthy, costly, and discretionary" regulatory regime of the NFA.

ATF must immediately provide clear and permanent clarity on this issue. Right now, millions of Americans continue to languish in uncertainty, fearing that they may be prosecuted simply for exercising their constitutional rights. Accordingly, we urge you to:

1. Issue a public statement that the ATF will not take further enforcement action regarding the classification of braced pistols as short-barrel rifles under the NFA;
2. Issue an interpretive rule clarifying that firearms equipped with stabilizing braces do not qualify as short-barreled rifles under the NFA; and
3. Through ongoing litigation, enter into a judicially-enforceable consent agreement, which would 1) permanently enjoin the ATF from attempting to revive its pistol brace regulations through new rulemaking and 2) permanently enjoin the ATF from taking any further enforcement action related to the classification of braced pistols as short-barreled rifles under the NFA.

Thank you for your prompt attention to this important matter.

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