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ATF Headquarters dbking, CC BY 2.0, via Wikimedia Commons
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By Cody J. Wisniewski

Recently, President Biden’s Department of Justice (DOJ), along with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), issued two proposed rules to “reinterpret” (see: make new law) existing federal gun control statutes.

Importantly, these are proposed rules. They are not final, nor do they have the full force of law — yet.

The first proposal, which seeks to redefine the terms “firearm” and “frame or receiver” as well as create new legal terms, including “complete weapon,” “privately made firearm,” and “readily,” was published in the federal register on May 21, 2021. There is a 90-day public comment period, which ends on August 19, 2021.

The second, which proposes a new point-based system to determine whether a pistol with a “stabilizing brace” would be regulated as if it were instead a short-barreled rifle, was published in the federal register on June 10, 2021. There is also a 90-day comment period for this proposed rule, which ends on September 8, 2021.

The gun-rights community has done a great job of encouraging people to comment, and is providing some helpful tips on how to make your comments more impactful.

To date, over 50,000 people have commented on the proposed firearm definition rule, and over 35,000 have commented on the proposed stabilizing brace rule.

You can comment on the the firearm redefinition rule here. Comment on the pistol brace regulation here.

But once the comment deadlines pass, what happens?

First, the agency is required to review and address each and every distinct, relevant comment. The agency can ignore repetitive comments, comments that are wholly irrelevant, and comments that contain profanity. So comments like these will perhaps be reviewed, but are unlikely to result in any changes in the proposed regulation:

Sometimes, the agency undergoes the review process internally, and other times the agency retains a contractor to assist with wading through the comments.

In either event, federal law requires the agency to “base its reasoning and conclusions on the rulemaking record, consisting of the comments, scientific data, expert opinions, and facts accumulated during the pre‐rule and proposed rule stages.”

Once the agency reviews and addresses the comments, the agency finalizes the rule and sends it to the federal Office of Management and Budget for final approval. If the final rule is approved, it’s then published in the federal register with an effective date. The new, final rule only goes into effect on that date.

This process can take anywhere from 30 days (for rules where there are minimal to no comments) to more than a full year (like the Title IX reforms under the Trump Administration). Some proposed rules have received so many comments, the agency never actually published a final rule. Or, in rarer instances, they withdraw their request for comments entirely.

But the publication of the final rule doesn’t necessarily mean it will go into effect. An individual or organization can challenge the new rule in court under the Administrative Procedure Act (APA).

The APA lays out specific terms detailing who can file a lawsuit and the test for reviewing the agency’s rulemaking process. Part of the challenge can include arguments that the agency did not fully consider the comments submitted by the public or that the agency had already made up its mind and “pre-decided” an issue without regard to what the comments stated.

Even before the new rule’s effective date, the party challenging the rule may also request an injunction, which would pause the rule from going into effect until the case is completely decided.

In other words, once the comment period closes, the process is far from over. Given the number of comments already submitted and the time remaining to submit comments, it could take months or even years for the DOJ and ATF to thoroughly review and respond to everything.

The Title IX reforms that took over a year to issue? There were over 124,000 comments on the proposed rule. And even though it’s doubtful — given the pressure from officials in the Biden-Harris White House — DOJ and ATF could always give up and not publish a final rule at all.

The more comments the agency has to tangle with, the longer the process will likely take. Do with that information what you will.

 

Cody J. Wisniewski (@TheWizardofLawz) is the Director of Mountain States Legal Foundation’s Center to Keep and Bear Arms. He primarily focuses on Second Amendment issues, but is happy so long as he is reminding the government of its enumerated powers and constitutional restrictions.

To learn more about the Center to Keep and Bear Arms’ work and support their fight for your natural right to self-defense—from both man and tyranny—visit www.mslegal.org/2A and donate today!

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24 COMMENTS

  1. “The more comments the agency has to tangle with, the longer the process will likely take”

    well surely the comments submitted should be competent rather than merely obstructive? citizenship is not a game.

  2. “To date, over 50,000 people have commented on the proposed firearm definition rule, and over 35,000 have commented on the proposed stabilizing brace rule.”

    OK, how does this compare to the comments received when they were planning on banning ‘green-tip’ ammo awhile back? Are we exceeding at this point?

    {The pistol brace proposal}

    “Even before the new rule’s effective date, the party challenging the rule may also request an injunction, which would pause the rule from going into effect until the case is completely decided.”

    Considering how rife with ambiguity that whole ‘point system’ sh!t-show is, do we have a fair crack at challenging it? To me, the most damming part of it is at the end, when they say (for all practical purposes) “If we decide we don’t like the look of it (since you voted for Trump), we’ll charge you with a felony”.

    EDIT – *BREAKING*

    “John McAfee Found Dead In Prison Cell After US Extradition Approved”

    Read all about it at the Z-Hedge…

    • As of 6:40 EST, the count is now 101,099 public comments.

      I hope no douche is trying to jam the works with ‘robo-submittions’ that will be tossed en-mass… 🙁

      • “trying to jam the works with ‘robo-submittions’”

        probably are, I doubt there are over 100,000 people actually interested in pistol braces.

        • I have NO doubt over 100,000 people are interested in pistol braces. Braced Ar pistols have been one of the hottest sellers out there for quite some time now. Im assuming you have no interest in them, it doesnt mean others arent interested.

        • “I doubt there are over 100,000 people actually interested in pistol braces.”

          There may not be, I don’t own an AR pistol although I’ve built and own a dozen or so AR rifles and carbines in various calibers. Still, I do not want, nor see the need, for a regulating agency to change the definition of a “firearm” nor to take something that has become popular and is presently a legally-obtained accessory and turn the tables on any Americans. I had no hesitation in adding my comments and they will have to be addressed.

          The time to attempt such a change was about 8 years or so back, not now after perhaps tens of thousands of Americans have shelled out the cash for a legal product. I imagine the Harris/Biden regime and ATF would love a photo op of a mountain of braces and finished 80% receivers, as well as entire guns being bulldozed and cut up like the Australian pics a couple decades ago.

          I also notice the Prezident Dementia isn’t offering to give any of that excess Covid or stimulus money to gun owners, manufacturers or ammo and accessory makers… Maybe he just forgot.

        • “Im assuming you have no interest in them”

          never seen them or heard of them until a few days ago, and don’t see the utility even now.

  3. Comments submitted on both.
    Also copied the link to this article and shared on my MeWe account and groups, urging people to COMMENT!!
    OK to piss and moan here. But be respectful when telling ATF that their rules will be unconstitutional because they are 100% politically motivated, baseless because there is no significant violent crime record that these may address, and ineffective because they will not stop criminals from continuing to commit crimes while on the other hand potentially creating millions of felons out of law abiding gun owners who do not follow these draconian new rules.

    • “baseless because there is no significant violent crime record that these may address”

      sure there is. to the ones behind all this, that you are not under their direct personal control and that you are armed at all, is the crime.

      • Gosh, if only we had something like….oh yeah, the Second Amendment. And people brave enough to use it. I guess “the ones” of which you speak are aching to test that resolve…

  4. Pieces of plastic, or any other material that do not and can not fire a projectile are not guns.
    As such, any part, or component by itself can not be called a gun and be subject to regulation under Article II of the Rill of Rights.

    This goes well beyond the preview of the U.S. Government and their enforcement agencies such as the BATF.

  5. Is there any way to frame a question so that it consumes an obnoxious amount of time to answer?

    Are there derivitives of theose type of questions that are be able to be made so that they also have to be answered individually and cant be discarded as a derivitive?

    Is it possible to compose questions that use complicated math or physics theoreoms that would require expensive and time consuming help to answer or counter?

    Can we refer to results from “scientific studies” that don’t exist and they would have to do time consuming searches to prove otherwise?

    How do we put sand in the gears?

      • “with facts”

        How quaint.
        They don’t care about facts.
        The best we’re going to be able to do is stall them to the point that we could ideally replace them before anything has a chance to be implemented.

        “never seen them or heard of them until a few days ago, and don’t see the utility even now.”
        You’re in the wrong forum. Go away troll.

    • I’m not sure, but this has been what I’ve been thinking of as well. Holding off on dropping comments until I can devise arguments that will create the deepest impact.

  6. Comments made to ATF.
    Multiple comments sent to my Senators and House Rep.
    Donation sent to the Firearms Policy Coalition.

  7. Only 76,000 comments on gun frames and 106,000 comments on stabilizing braces!

    Come one, gun owners! Get with it! Submit comments! Share this article with your friends, clubs, email server lists, Get people to write comments! Where are the millions of gun owners???

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