When the new ATF pistol brace rule was published on Jan. 31, effectively changing the classification of braced pistols to highly regulated short-barreled rifles, Georgia Congressman Andrew Clyde introduced the Stop Harassing Owners of Rifles Today Act (aka the SHORT Act).
It’s not uncommon for lawmakers to file symbolic legislation when an issue makes headlines. In fact, Matt Gaetz, the outspoken Republican representative from Florida, did just that when he filed the Abolish the ATF bill (also in response to the pistol brace ban). But the SHORT Act has obvious differences. Mainly, its scope is more focused, and its goals achievable.
Free Range American had the opportunity to speak with the lawmaker recently about his bill, his views on the NFA and ATF in general, and what it’s like to be a congressman and a gun shop owner.
What the SHORT Act Hopes to Achieve
The SHORT Act has the distinct goal of delisting short-barreled rifles and shotguns from the National Firearms Act. Granted, it doesn’t seem to have a huge chance of passing — it didn’t last year — but it does seem more realistic than abolishing an entire Bureau of Alcohol, Tobacco, Firearms and Explosives.
Views on the pistol brace rule — like the gun debate in general — are polarizing. Critics argue the rule change exemplifies government overreach and that the ATF is attempting to rewrite laws.
They’ll also point to three ATF classification letters and argue the agency contradicted itself and confused brace owners in its 2017 summation: “An NFA firearm has not necessarily been made when the device is not re-configured for use as a shoulder stock — even if the attached firearm happens to be fired from the shoulder.”
“When you start taxing a constitutional right, is it really a constitutional right? No, it’s not. If you want to eliminate that constitutional right, you simply increase the tax until no one can bear the burden of that tax. Now, the National Firearms Act in itself is completely unconstitutional.”
— U.S. Rep.Andrew Clyde (R-GA)
Supporters argue the classifications are consistent in that the brace was approved to be a brace (and can still be used as a brace) and that the agency drew a line when features that “serve no functional purpose of a pistol brace” but were “commonly associated with butt stocks/shoulderstocks” were included in designs.
They’ll also justify the rule change, saying clarification was needed because companies intentionally confused the public by marketing pistol braces for use as shoulder stocks.
When Free Range American spoke to Clyde on Feb. 7, 2023, we wanted to get a better understanding of how he, as a Congressman legislating the issue and also how he, as an FFL holder and gun store owner, viewed the situation and would like to see it resolved.
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How Did the ATF Overstep With the Pistol Brace Rule?
Clyde said the ATF shouldn’t have that authority to create rules like the its new pistol brace rule, which goes into effect on May 31, because the ATF repeatedly approved the brace to be used as a brace since the devices were introduced a decade ago, and that it doesn’t matter if a person shoulders it.
“How you use it, as long as the original design is unmodified, is up to the individual,” he said.
With the rule, the ATF is “redefining a definition,” he said and added that doing so is Congress’s job, not the ATF’s.
“The executive branch is supposed to enforce laws, not make laws,” he said. “That’s a violation of the separation of powers.”
He argues that the pistol brace rule was no different than the bump stock ban. In that case, the ATF said it didn’t have the authority to regulate bump stocks but did so anyway at the direction of then President Donald Trump and with the support of major gun rights groups. The new brace rule is a reversal of a previous position held by the ATF regarding the devices.
When challenged with that detail, Clyde maintained that procedurally, it was the exact same process. A president passed down the order, then the ATF proposed the rule and solicited feedback before publishing it.
“The firearms industry is the target here because the Biden administration’s entire intent is to reduce the number of firearms in the civilian population’s hands and to create a national registry as much as they possibly can,” he said. “Because registration, as we all know, comes before confiscation. And that’s the Biden administration’s entire goal.”
“They redefined what a machine gun meant and adding bump stocks into that definition as if a bump stock was a machine gun,” he said. “That was completely flawed logic.”
Clyde dismissed the idea that the brace ban is meant to enhance public safety. By re-classifying braced pistols as SBRs, the government has given brace owners two options: They can either register the firearm with a brace attached as an SBR with the federal government (because all NFA items must be registered per federal law) or remove the brace from the firearm. A brace itself will not be illegal to own after May 31 unless it’s attached to a firearm.
If Congress doesn’t legislate the issue, Clyde thinks the judicial system will eventually overturn the pistol brace rule like it overturned the bump stock ban earlier this year.
“The court said it violated the rule of lenity, which has a very, very long historical Supreme Court precedent, which says that you cannot make something illegal and attach a criminal penalty to it when there was no law against its purchase,” Clyde said.
And because of that fact, Clyde advises brace owners to simply remove the brace from their firearm and leave it as a pistol rather than registering it as an NFA item.
“I would not register it under any circumstances,” he said.
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Is the National Firearms Act Useful, or Even Legal?
In addition to regulating SBRs, the nearly century-old National Firearms Act (NFA) allows the government to regulate machine guns, suppressors, short-barreled rifles, short-barrled shotguns, and items classified as “any other weapon.”
Congress implemented the NFA in 1934 largely in response to Prohibition Era violence. The intention was twofold: Tax the items at a high rate so no one could really afford them and empower federal law enforcement to pursue criminals who possessed the items when they crossed state lines.
When it comes to new firearms or accessories, like the stabilizing brace, companies can submit product samples to the ATF for review before selling them to make sure they clear NFA regs. The agency’s Firearm and Ammunition Technology Division will examine features of a firearm or device and its intended purpose to determine whether it fits the definition of an NFA item.
The process is voluntary and meant to help companies comply with federal regulations, but most manufacturers participate willingly rather than release a product that is later deemed an NFA item and seized.
Clyde maintains that the NFA wasn’t legal when it was adopted in 1934 and that it was a Second-Amendment workaround.
“When you start taxing a constitutional right, is it really a constitutional right?” he asked. “No, it’s not. If you want to eliminate that constitutional right, you simply increase the tax until no one can bear the burden of that tax. The National Firearms Act, in itself, is completely unconstitutional.”
When the law was written, the tax rate was set at $200, but if you adjust it for inflation, it comes out to $4,532.88 in today’s dollars, according to the Bureau of Labor Statistics’s inflation calculator. But it’s kind of a moot point because the NFA tax remains $200.
But the original intention was to tax the items out of reasonable ownership for the majority of citizens. For instance, around that time, the price a new Thompson submachine gun was about $200 in 1930s money — so the tax would have effectively doubled that price.
Clyde also said he doesn’t think a firearm’s barrel length matters much, which is a key NFA criteria.
“It doesn’t change the function of the weapon whatsoever,” he said. “One of the best home defense weapons that exists is a short-barrel shotgun. And yet, it is one of the most restricted weapons.”
Interestingly, in the landmark gun case District of Columbia v. Heller, the majority opinion singled out SBSs as uncommon and dangerous weapons and maintained that the government could regulate them. Clyde argued that SBSs weren’t popular when the NFA was written and referenced the 1939 case U.S. v. Miller.
In Miller, the Supreme Court ruled unanimously that the Second Amendment did not protect an individual’s right to keep and bear a sawed-off shotgun. However, Clyde thinks attitudes about SBSs have changed because in the latter half of the 20th century, they’ve become more commonly used by military and law enforcement, as well as civilians who register them under the NFA, and the short, shotgun adjacent firearms that aren’t considered shotguns, like the Mossberg Shockwave and Remington TAC-14, have proven extremely popular.
To support his claim, he described U.S. troops using SBSs in jungle warfare during World War II and Vietnam, and selling “thousands” to police as a Federal Firearms Licensee, as they are regularly used as breaching shotguns by police and military personnel.
“It is very much a weapon in common use today, so I would say that things indeed have changed,” he said. “The short-barreled shotgun certainly bears significant protection under the Second Amendment.”
Ultimately, Clyde thinks the NFA should be repealed, but he doesn’t think it could be done outright. Therefore, he said, Congress must “gradually eliminate the National Firearms Act.”
“I think that’s in the current mindset of this country. I think that’s what’s got to happen,” he said. “It simply doesn’t make sense to regulate these kinds of firearms.”
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What Should the ATF’s Role Be?
If Clyde successfully repeals the portion of the NFA targeted by his SHORT Act, it would be a significant blow to the ATF’s authority. If the NFA were ever completely repealed, it would eliminate one third of the gun laws the ATF can enforce and part of its regulatory power.
According to the agency’s website, 91% of the cases agents initiated involved gun crimes, and the agency processed more than 3 million NFA firearms in 2022 alone. So it raises the question: What should the ATF be doing?
Clyde said he’d want the agency to be structured under the Treasury Department rather than the Justice Department.
“[When it comes to guns, the ATF] needs to be more of a regulatory agency that makes sure that Federal Firearms Licensees have the training and the tools necessary to properly do their jobs,” he said.
His reasoning is that, as a law enforcement agency, the ATF is too aggressive. He explained that the ATF’s industry operation now consists of “Industry Operations Investigators,” and it wasn’t always like that.
“IOI used to mean Industry Operations Inspector because they’re inspecting records to make sure you’re complying with the law as opposed to ‘investigator,’ where you’re trying to investigate a crime,” he said. “There’s a big mindset difference.”
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