“When is Enough, Enough?” Congressional Hearing on the ATF Pistol Brace Rule

“When is enough, enough?” That was the name given to the March 24 Congressional hearing regarding the ATF’s perceived overreach by changing rules and instituting a “zero tolerance” policy toward Federal Firearms Licensees (FFL). The hearing was jointly conducted by the House Judicial Subcommittee on Crime, and Federal Government Surveillance and the House Oversight Subcommittee on Economic Growth, Energy Policy, and Regulatory Affairs.

Four witnesses appeared before the committee: Alex Bosco, founder of SB Tactical and inventor of the stabilizing pistol brace; Amy Swearer, a Heritage Foundation Constitutional and Second Amendment expert; Second Amendment attorney Matt LaRosiere; and Everytown for Gun Safety Federal Legal Director Rob Wilcox.

The Hearing’s Supposed Purpose

The hearing’s stated purpose was to examine recent policy overreaches by the federal Bureau of Alcohol, Tobacco, Firearms, and Explosive (ATF) and how those policies impact lawful gun owners and businesses.

Watching the entire five-hour and two-minute proceeding, I often wondered, “When is enough, enough,” regarding political grandstanding, propagandizing, and deflection? Honestly, the hearing’s substantive parts would have easily fit into an hour-long time block.

Both Republicans and Democrats were guilty of this, though the Democrat side almost uniformly refused to address the hearing’s purpose. Democrat politicians either mouthed anti-gun propaganda; asked leading questions of the Everytown spokesman to further their propaganda, with which he was only too willing to cooperate; praised the ATF, which suits their current gun control purposes; and one Democrat played “gotcha” with Matt LaRosiere over an ill-considered Instagram post. There were at least two Democrats whose pronouncements bordered on hysteria. And no, I’m not exaggerating.

The Republicans also wasted much time, though they were more sympathetic to the hearing’s purpose. The problem with these representatives is that they didn’t know much about the topic, yet got their remarks in anyway, many of which were intended to score political points on issues not germane to the topic at hand. I get that they can’t be experts on every issue, but the time would have been better spent by giving those who do know it longer speaking opportunities.

The hearing was interrupted twice, in a short period of time, by outbursts from anti-gun activists. They were removed by the Capitol Police, and one was arrested after returning to the chamber and being ejected again. This second incident forced a short recess. The arrest was for an unnamed offense committed outside the chamber. That particular activist was later noted to have a record of such activities, including prior arrests. Several Democrats defended the outbursts, even thanking the activists, including Representative Eric Swalwell (D-CA), who used the incident to talk about January 6, 2021, further wasting the committee’s time.

The Substantive Testimony

Going forward, I will break down the relevant testimony by the representative, mostly Republicans, who made the statement or asked the question.

Matt Gaetz (R-FL)

Gaetz began by noting that the Government Accounting Office (GAO) reported that ATF illegally collected data on lawful firearms purchases. The agency was later forced to delete 252 million records they held illegally.

Gaetz asked Everytown’s Wilcox whether he was familiar with the report. Wilcox responded that he was and claimed the records helped solve crimes, therefore, he supported ATF’s actions. He also tried to deflect by stating that the loophole exploited by ATF, which the GAO had identified, was from a law signed by President Ronald Reagan and implying that President Donald Trump encouraged that exploitation, which he may well have done.

Gaetz’ cut Wilcox off with “I don’t care who did it. I’m just worried about the impact on my citizens.” He pressed Wilcox on the fact that ATF had to delete the illegal records, from which Wilcox repeatedly deflected, not wishing to acknowledge ATF’s malfeasance.

Gaetz’ best moment was responding to Wilcox’s statement that the ATF’s data gathering was lawful, though the GAO said differently. Gaetz said to Wilcox, “That’s the concern of my constituents, when [ATF] go[es] beyond their authority. You may find these things virtuous, but no one elected you, they elected us [Congress] to make the laws. And we make the laws and they don’t follow them, then people’s rights get diminished.” The key implication was that no one elected the ATF’s bureaucrats either.

Gaetz also addressed Wilcox’s statement that pistol braces make firearms more powerful by asking Bosco, who invented the pistol brace, whether that was the case. Bosco replied, “They do not. They do not,” to which Wilcox smirked. More from Bosco later.

Gaetz made one more excellent point by noting that when the ATF gets caught going beyond its authority, it’s explained away as the ATF “doing their best.” “But when Americans,” Gaetz continued, “get inadvertently converted to felons because the ATF has exceeded their authority, there is no such grace for them, is there?” Gaetz addressed that question to Swearer, who replied, “That would seem to be the case under the recent policy of zero tolerance.”

Jamie Raskin (D-MD)

Raskin was the only Democrat who seemed willing to address the issue at hand. And though I disagree with his stance, I respect his willingness to engage, though he got in his share of political grandstanding, as did Gaetz if I’m being fair.

Raskin stated that pistol braces have evolved from their original intent of aiding disabled veterans to fire AR pistols. He contended that braces are now used as de facto stocks, enabling buyers to skirt the process of legally acquiring a short-barreled rifle (SBR). YouTube videos from several prominent gun channels were shown to make this point.

Raskin’s point is well taken and, if we’re being honest, is probably true in many cases. Does that mean braces should be regulated? Of course, I think they should not be, but the point remains that Raskin’s argument is valid. Where we differ is Raskin believes the ATF was justified in making the pistol brace rule. The opposing argument, to which I subscribe, is that whether or not braces effectively allow illegal SBRs, Congress should make that determination, not an unelected federal agency. This is especially true since the National Firearms Act (NFA), which governs SBRs, was enacted by Congress, and was not the result of an Executive Branch rule.

Bosco, when later asked about Raskin’s allegations, responded that some people using the brace in ways other than what he intended does not change the device’s nature, which is to help disabled people shoot safely and more effectively.

Lauren Boebert (R-CO)

Like Raskin, most of Boebert’s time was spent making political pronouncements, though she did make one valid point about the ATF’s history of playing fast and loose with the law. You may recall the agency’s ill-conceived Obama-era Operations Gunrunner and Fast and Furious, in which ATF deliberately transferred firearms to prohibited persons. Those prohibited persons included Mexican drug cartel members, in the case of Fast and Furious.

In case you don’t know, the ATF supposedly sought to track those guns in an effort to identify cartel members and expose smuggling pipelines. The scheme failed miserably, with the guns being lost entirely, until one was later used to murder US Border Patrol Agent Brian Terry. No one at the ATF or Justice Department was ever held accountable for Terry’s murder, nor was any wrongdoing admitted.

Jim Jordan (R-OH)

Jordan’s reputation for addressing the meat of any issue was on full display. He immediately asked Everytown’s Wilcox, “Did you or anyone in your organization communicate with the ATF or the Biden Administration about these issues we are discussing today prior to the notice of proposed rulemaking?” The notice of proposed rulemaking was ATF’s announcement that it intended to reclassify and regulate pistol braces.

Wilcox responded that “We submitted a formal proposal for rulemaking through the appropriate channels.” In response to Jordan’s clarifying question, Wilcox acknowledged that Everytown submitted this proposal before the ATF’s notice.

Despite Wilcox’s attempts to dodge by referring to his original answer, Jordan forced Wilcox to admit that he, personally, as well as other Everytown representatives, have spoken personally to ATF officials, including ATF Director Steve Dettelbach, in an effort to influence and drive ATF policy.

Again, in case you are not aware, Everytown for Gun Safety is a leading gun control organization founded and fully funded by extreme anti-gun billionaire Michael Bloomberg. Jordan accused Wilcox, and Everytown, of scheming with ATF to change the pistol brace law, thus going after millions of lawful American gun owners. Wilcox did not respond.

Jordan then turned to Bosco and pointed out that ATF has confirmed, on several occasions, that pistol braces are not NFA items and are perfectly legal. He even had a copy of the original 2012 letter from ATF to Bosco stating that fact.

Jordan asked Bosco, “When did the bill pass that changed the law?” Bosco replied that “There was no bill.” “No bill,” repeated Jordan, “that’s the fundamental issue, right? No bill. Mr. Dettelbach, the new director, he never ran for Congress.”  Jordan went on to confirm that no bill to reclassify pistol braces as an NFA item was ever submitted, debated, or passed by Congress, nor was one signed by the president.

At a prompt from Jordan, Bosco declared that his company alone sold 2.3 million braces between 2020 and the present day, a figure that was not considered by the ATF when it performed its impact study. Bosco had earlier noted that ATF’s impact study concluded that changing the rule would put four out of the five companies manufacturing pistol braces out of business, including his own SB Tactical.

Jordan suggested that ATF’s not considering the last three years of sales, which we all know were explosive, was because of Everytown’s influence. Bosco declined to comment on that point, but he did note that Congressional Research Services estimate that between 10 and 40 million people own pistol braces. One would think they could be more precise, but those are the numbers of potential felons resulting from the rule change.

Jordan finished by stating that Congress should pass legislation blocking the rule. His reasons were that ATF lacks the power to make such sweeping changes and that the rule was unduly influenced by Everytown for Gun Safety.

Andrew Clyde (R-GA)

Andrew Clyde is a gun store owner and FFL in private life, so he was predictably prepared. I thought his time was very productive and certainly addressed the hearing’s stated topic. A strength was that he asked the witnesses clear questions and allowed them to answer. Those answers are worth transcribing here.

Clyde’s first question was directed to the Heritage Foundation’s Swearer. “What,” he asked, “is the pistol brace rule’s purpose?” Swearer responded that “I firmly believe that the intended purpose is simply to try to ‘do something,’ if you will, about gun violence, in the typical way of ‘well look, we’ve done something…we’ve regulated more.’ The problem,” she continued, “is the regulation is not directed at the violent criminals themselves. It’s directed at millions of peaceable citizens who are not and never were the problem.”

“Meanwhile, to the extent that it is regulating these devices for would-be violent criminals…congratulations, they have a plethora of other ways of either obtaining the same firearm…because if they’re not prohibited and just bent on violence, they can pay the same $200 tax and they still have the same firearm, so we haven’t even cut down that option for them.

“Or, they can turn around, as most of them do, and break other laws, obtain firearms off the street, pistol brace or no pistol brace, NFA or not NFA, and as most of them do, they’re already not using these firearms. They’re using non-NFA firearms. It just is not directed at…remotely at any part of the problem.”

Turning to Bosco, Clyde asked why the ATF changed its mind after repeatedly confirming the pistol brace’s legality. “Because the political winds at the ATF changed,” Bosco replied. “That’s simply it. They needed to do something, anything, and the one thing that I think a lot of people wanted to talk about was the brace issue.” From my standpoint, given the Biden Administration’s rhetoric, there seems little doubt that Bosco is correct on this issue, especially with Wilcox’s testimony in response to Jordan.

Finally, Clyde asked Swearer, “Will the ATF’s pistol brace rule save lives?” Swearer replied unequivocally, “Most certainly not.”

Chip Roy (R-TX)

Chip Roy is another representative who cuts to the heart of issues. He did so again here, asking Swearer whether the ATF’s recent rulemaking processes violate the separation of powers laid out in the Constitution. She responded in the affirmative.

Roy then followed up by saying. “You believe the ATF has abused its rule-making authority here.” Swearer replied, “Yes, and it has done so in a way that infringes on rights without the American people having a process by which to recall those appointees,” unlike they have with members of Congress.

Roy then asked, “Is the rulemaking process unconstitutional and unlawful?” “Yes, in several capacities,” Swearer confirmed. “Therefore,” said Roy, “it being applied to American citizens would be unlawful and unconstitutional, and, therefore, Congress, in its duty, in separation of powers, has an obligation to check that overrun (sic) Executive Branch.” Swearer agreed with that statement.

Roy then asked Bosco if he ever thought that the government would declare his product illegal. Bosco responded that, “I never, never, would have thought that ATF would unilaterally make a decision through the bureaucratic process to ban my product…that’s up to you guys [Congress]. That’s not up to a bureaucratic agency. The product was designed, again, as a safety product, an orthotic device, it changes nothing on the firearm.”

Bosco continued, “I have no disagreement with ATF’s ability to do their job of putting criminals in prison, but I don’t think anybody on this side [pointing to Democrats] should agree to give ATF the authority to unilaterally make a product illegal and circumvent the legislative process. That’s the only reason I’m here to talk with you guys, is to say that.” Bosco’s next comment was directed to the Democrats: “If you want to do that, then you do that. But don’t let an executive agency circumvent your power, your authority.”

Andy Biggs (R-AZ)

Finally, Arizona’s Andy Biggs had one important question for Bosco, asking whether the ATF contacted him, as the pistol brace’s designer and inventor, for input on the final rule. Bosco said, “No, they didn’t. But for years, we worked with ATF to try to get to the bottom of parameters that we could work with to allow us to make a product that [would] fit and suit what they thought the needs should be.”

I should also note that Byron Donalds (R-FL) asked good questions of Swearer and Bosco, but we’ve already covered their answers in other sections.

Results

Honestly, I don’t see any real action coming from this hearing. Democrats and Republicans seemed to be having two different conversations on two different topics. I believe that several representatives are serious about trying to turn back the ATF’s power grab, as proven by Andrew Clyde’s introduction of the House Joint Resolution of Disapproval regarding the pistol brace rule. That resolution is co-sponsored by Representative Richard Hudson (R-NC). This resolution, if passed, would nullify the ATF’s pistol brace rule. A similar resolution has been introduced in the Senate. The House Judiciary Committee will vote on the resolution, which requires only a simple majority to pass, on Tuesday, March 28.

The resolution will likely pass the House, but it would require at least three Democrat votes in the Senate. Those defections are unlikely. And let’s be honest, even if it passes both houses, there’s no chance that Joe Biden would sign it.

I think that any real action on the pistol brace rule will have to come from the courts, as it has on the ATF’s frames and receivers rule. But the hearing wasn’t a complete waste of time, despite half the lawmakers present just repeating the same gun control mantras ad nauseum. 

The only one I’ll mention in any detail, since it bears on the topic, is the notion introduced by Everytown’s Wilcox and parroted by several politicians that pistol braces make AR pistols deadlier. Bosco vehemently denied that “fact,” stating over and over that the brace is “an orthotic device,” not a “force multiplier.” LaRosiere pointed out the absurdity of claiming that a device that makes a firearm harder to conceal makes it more lethal. Swearer agreed with Bosco and LaRosiere, saying that the allegations “don’t make a whole lot of sense.” But since when have gun controllers made sense?

Finally, I believe that some information gleaned from this hearing, such as Bosco’s testimony, as well as certain of Wilcox’s revelations, may prove useful in the upcoming legal challenges that the rule faces. Let’s hope so, anyway, or that will have been a completely pointless five hours and two minutes.