Reflections On ATF’s Withdrawal Of Request For Comment

On the face of it, the ATF’s decision to withdraw their Request for Comment on “Objective Factors for Classifying Weapons with ‘Stabilizing Braces’” is a win for the gun rights community. We organized, we submitted 67,401 comments (at last count), we got buy in from both the House and Senate, we made ourselves heard, and ATF backed down.

However, the more I think about it, the more I’m wondering if it wasn’t a feint by ATF to scope out the opposition.

I am reminded of this dialog from Sir Arthur Conan Doyle’s short story Silver Blaze. It is also known as The Case of the Dog That Didn’t Bark.

“Is there any point to which you would wish to draw my attention?”

“To the curious incident of the dog in the night-time.”

“The dog did nothing in the night-time.”

“That was the curious incident,” remarked Sherlock Holmes.

In this case, the dog was the gun control industry.

Did Brady United issue a call for comments? No. They did, however, urge people to get involved in the Senate run-off elections in Georgia and endorsed Raphael Warnock.

Did Everytown for Gun Safety issue a call for comments? No. However, they are calling for action to ban 80% frames.

Did Giffords issue a call for comments? No. They are instead asking you to contribute to both Warnock and Ossoff to flip the Senate.

Did Shannon Watts tweet about it? No. She seems more worried that President Trump is going to pardon the Tiger King guy.

In every case, there was absolutely nothing sent out or issued by any of these gun prohibitionists.

Do I think that Acting Director Regina Lombardo and Deputy Director Marvin Richardson would like to make pistols braces come under the regulations of the National Firearms Act? Hell, yes, I think they want that.

Could Lombardo and Richardson be Machiavellian enough to float the Request for Comment as a trial balloon or as way to distract the gun culture from other things?

Let’s look at the evidence.

Lombardo is a 29-year veteran of BATFE. According to her LinkedIn profile, she started as a Special Agent, spent over 7 years as an Attache’ for the ATF in Canada, and then had progressively higher promotion. She certainly has the bureaucratic chops needed.

What about Marvin Richardson? He has put up less about his career in his LinkedIn profile. Nonetheless, we know he has moved up from a Special Agent in Charge of the Denver Field Division to the number two position at ATF over the last 10 years. More importantly, he got promoted after he was found to have lied to the Office of Inspector General’s Office of Special Counsel. In bureaucratic speak, in an interview by OIG inspectors, he was found to have answered questions with “less than candor.” (OIG Investigation number OSC file number D1-07-0367). Nonetheless, despite what should have been a terminating offense, he was appointed as Chief of the ATF’s Professional Review Board and then to SAC in Denver. He knows how to survive and prosper in the wilds of bureaucracy. We also know he will lie when it suits his purpose.

I think the answer is yes, they are Machiavellian enough.

Both Lombardo and Richardson want to curry favor with the incoming Biden Administration. The Trace has already suggested that they go after pistol braces by reclassifying them. Moreover, both Lombardo and Richardson have prospered in what traditionally has been a white male led agency. They didn’t get to where they are by not playing the game very astutely.

So whether this was a trial balloon or a diversionary tactic, I think it served the purposes of Lombardo and Richardson. While we might not know their actual motivation or ultimate goals, we do know that somewhere, sometime, somehow they are going to come after us again. We should never forget that.

ATF Blinks – Request For Comment Withdrawn

The Bureau of Alcohol, Tobacco, Firearms, and Explosives has withdrawn their Request for Comment on “Objective Factors for Classifying Weapons with ‘Stabilizing Braces’” as of today.

Upon further consultation with the Department of Justice and the Office of the Deputy Attorney General, ATF is withdrawing, pending further Department of Justice review, the notice and request for comments entitled “Objective Factors for Classifying Weapons with ‘Stabilizing Braces’,” that was published on December 18, 2020. 85 FR 82516. As explained in the notice, the proposed guidance was not a regulation. The
notice informed and invited comment from the industry and public on a proposed guidance prior to issuing a final guidance document.


The withdrawal of the guidance does not change any law, regulation, or other legally binding requirement.
December 23, 2020

Marvin G. Richardson
Associate Deputy Director

In other words, BATFE was feeling the heat. They had over 67,000 comments at last count and a letter from 90 Congressmen.

According to Dan Zimmerman at TTAG, what may have swung the decision was the involvement of Mitch McConnell.

But TTAG has learned that the final straw that persuaded the ATF to back down was serious pressure applied by Senate Majority Leader Mitch McConnell. A call took place over the weekend involving a number of firearms industry companies and McConnell’s office.

Stephen Gutowski of the Free Beacon reports more on that phone call.

Second Amendment activists and industry giants are imploring Senate Majority Leader Mitch McConnell to use his influence on the Department of Justice to scuttle a proposed firearms regulation that would banish a popular gun accessory known as a “pistol brace.”

In a phone call with McConnell’s office on Saturday, approximately 80 gun makers warned that a proposed ruling from the Bureau of Alcohol, Tobacco, and Firearms could cost them nearly $2 billion in sales, according to several sources who participated in the call. 

The Daily Caller indicates that the runoff elections in Georgia may have played a role in McConnell getting involved in addition to the loss of revenues by the firearms industry.

Jamin McCallum, founder of Palmetto State Armory, one of the leading manufacturers of AR-15s, predicted a $150 million loss if the ATF  followed through with the regulation. McCallum also insisted that inaction by Republicans to stop the agency may have a deleterious effect on the Georgia runoffs.

“This could actually cost the Georgia runoff for Republicans,” McCallum told the Free Beacon. “Gun owners are demoralized right now.”

Regina Lombardo and Marvin Richardson got slapped down on this move. However, given the anti-gun fervor of the incoming Biden Administration, I fully expect more moves by BATFE when they have the full support of the White House. In other words, we may have won the round of the battle but we are far from winning the war.

BATFE To Issue “Guidance” On Pistol Braces

Firearms attorney Joshua Prince posted an alert last night regarding a move by the Bureau of Alcohol, Tobacco, Firearms, and Explosives to institute a rulemaking with regard to pistol braces. He had been given a draft copy of their proposal. Included in that proposal which I have embedded below, was a plan for DOJ to “subsequently implement a separate process for current possessors of stabilizer-equipped firearms to choose to register such firearms in compliance with the NFA.”

Atf Federal Register Notice Objective Factors for Classifying Stablizing Braces Draft 12-16-20 by jpr9954 on Scribd

As Mr. Prince notes, the BATFE seems to be planning only a 14-day comment period which seems to be in violation of the law. With the incoming and virulently anti-gun Biden Administration, one must wonder whether adherence to the law will matter to them. Even before the Electoral College met, the leadership of BATFE in the persons of Acting Director Regina Lombardo and Deputy Director Marvin Richardson (no relation) apparently has been reaching out to the Biden Administration on new gun control measures.

The Firearms Policy Coalition sent out a release on this late last night. They offer their initial thoughts on it. I think it is worth reading in its entirety.

WASHINGTON D.C. (December 16, 2020) — Your FPC team is in receipt of a draft notice from the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) regarding how the agency will be evaluating weapons with “stabilizing braces.” Based upon our initial review of this notice, we offer these thoughts for your consideration:

1) The draft document does not appear to reflect a new “ban” on pistol braces or firearms with such devices. The ATF, evidently, is not indicating that the mere presence of a brace on a pistol automatically converts the firearm into one under the purview of the National Firearms Act (“NFA”). (Indeed, the ATF has no authority to declare accessories like pistol braces to be NFA components, though the agency’s previous conduct provides little reassurance.)

2) The draft document instead purports to be intended to inform the public on how brace-equipped firearms will be examined in the future. Based on the criteria set forth in the draft document, it appears that the ATF would take something of a totality of the circumstances approach in determining whether a specific brace-equipped pistol is a ‘short-barreled’ firearm regulated under the NFA. These criteria include: the firearm’s type, caliber, weight, and length, the design of the brace itself, whether the firearm can be properly aimed when using the attachment as a brace, and whether an optic that cannot properly be used one-handed is present (i.e., something that suggests intent). The agency also indicates that it will observe the marketing of firearms and accessories, as well as other more subjective factors.

3) Importantly, the draft document recognizes that most people with braced firearms have acted in good faith. It suggests that the agency seeks to establish a procedure by which people who already have firearms that may fall under the purview of the NFA, and who wish to take advantage of registering them as NFA firearms to obtain the legal protections of such, may potentially do so without payment of the associated tax.

FPC believes that the NFA is an unconstitutional infringement of the People’s rights, that the ATF should be abolished, and that any policy or practice enforcing the Act is unconstitutional and immoral. 

With that said, the policies in the draft document do not appear to be a significant departure from previous publicly undisclosed agency policies, some of which were discovered through criminal prosecutions, FOIA requests, and other sources. Your FPC team will be monitoring the situation closely. If anything changes we will let you know as soon as possible.

While I don’t believe Joe Biden has the cognitive ability to discern whether such measures are legal, I believe he will rubber-stamp any and all such attempts to restrict rights and rewrite both law and regulations. In other words, he will do as he is told.