The latest attempt to undermine the administration is coming in the form of weak and fledgling attacks on President Trump’s pick for acting director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Kash Patel. It is the height of irony that this group of House Democrats would malign Patel as an “unqualified partisan” when President Biden’s choice for the agency, Steve Dettelbach, took unprecedented steps to weaponize the ATF against gun owners in order to push a dogmatic anti-firearm agenda.
President Trump’s second inaugural address was a blueprint for action on this front: “The vicious, violent, and unfair weaponization of the Justice Department and our government will end.” His appointment of Kash Patel to serve as acting director of the ATF is a major installment toward fulfilling that pledge.
There’s no question much work lies ahead to undo the damage caused by the Biden administration’s weaponized Department of Justice, which turned ATF into a partisan outpost. The agency abandoned its mission of safeguarding Americans from dangerous criminals and instead focused on divisive DEI ideology and targeting law-abiding firearms owners. Acting Director Patel can make an immediate difference by moving to undo some of the Biden ATF’s most egregious attacks on American gun owners.
Take the stabilizing brace, for example, an issue that I have been involved with for over a decade. A benign accessory that enables gunowners to attach pistols to their forearm for more stability, its use on pistols was determined by ATF in 2012 to not create a National Firearms Act (NFA) weapon. Yet, years later, the agency quietly moved to reverse this position without informing the public through a mechanism known as “private classification letters.” This stealthy approach allowed a toxic culture of ad hoc, weaponized legal interpretations to thrive within the agency.
In 2023, the Biden administration directed ATF to spend enormous resources to finalize a regulation that reclassified pistols affixed with stabilizing braces as short-barreled rifles subject to the burdensome NFA registration process. Millions of Americans who innocently purchased braced pistols since 2012 faced the potential of up to ten years in prison. Thankfully, a U.S. District Court in Forth Worth vacated the rule last June, finding it in violation of the Administrative Procedure Act. Two months later, in a case I was part of, the U.S. Court of Appeals for the Eighth Circuit held that the rule’s amorphous factors, designed to give ATF maximum enforcement flexibility, were arbitrary and capricious.
The stabilizing brace fiasco should never have happened. With Kash Patel’s refreshing reputation for transparency, one can be sure that the days of creating subjective rules from thin air to give the agency unlimited classification discretion have finally come to an end. Going forward, a reform-minded ATF would be well-advised to strongly consider a device’s patent when determining “design” and to make all classification letters publicly available
Another administrative quagmire the ATF should address is the regulation of suppressors. There is a common misconception that background checks for NFA items such as suppressors—one of the most misunderstood safety devices in the world—are more exhaustive than those for traditional firearms. In reality, their background checks are identical. However, for NFA items, FBI is not held to the same three-day statutory limit that applies to Title I firearms like rifles, pistols, and shotguns. Thus, delayed NFA background checks are set aside by FBI examiners as a non-priority. This often results in extensive delays, simply because the FBI treats these identical background checks differently.
As both the head of the FBI and ATF, Kash Patel currently is in a unique position of power to correct this interagency problem. With his demonstrated eye to efficiency, he is well positioned to streamline the NFA process by directing the FBI to treat all NICS background checks identically, regardless of the type of firearm they are used for. He could further improve efficiencies by allowing licensed dealers to submit background checks for NFA items directly to the FBI, creating an environment where same-day transfers of NFA items could become the new norm. Not only would this simple step improve efficiencies, it would also eliminate a tremendous amount of bureaucratic waste, as a significant amount of ATF’s time and financial resources are spent transmitting background check information from ATF to FBI.
Under Biden’s watch, ATF became another agency run amok. Much damage was done, and instituting meaningful reform will be a monumental and difficult undertaking. President Trump is proving he is serious about fixing the problems at ATF by tasking it to Patel. If that personnel decision is a harbinger of his eventual choice to permanently fill the director role, Americans can rest assured that man or woman will approach the agency with the same vigorous transparency, accountability, and common sense.
Michael Faucette is a partner at Wiley Rein LLP where he counsels clients on regulatory compliance, federal firearms law, export controls and other issues.
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