Led by West Virginia Attorney General Patrick Morrisey and Texas Attorney General Ken Paxton, 27 states have written to House Speaker Kevin McCarthy (R-CA), urging him to schedule a vote on House Joint Resolution 44, which seeks to nullify the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ (ATF) controversial pistol brace rule.
These 27 states have already sued the ATF in federal court to have the rule struck down, but this letter escalates their efforts by involving Congress. Let’s look at House Joint Resolution (H.J. Res. 44), what it says, and whether it has a chance.
House Joint Resolution 44
Georgia Congressman Andrew Clyde, who owns a gun store, wrote and sponsored H.J. Res. 44 after the House Judiciary Committee held hearings on the pistol brace rule, including grilling ATF Director Steve Dettelbach. The resolution was filed under the Congressional Review Act (CRA), which allows Congress to reign in overreaching federal agencies, though it also requires the president’s signature like other legislative actions.
H.J. Res. 44 consists of three main statements:
- The ATF’s rule illustrates the dangers of an unchecked administrative agency that is willing to circumvent Congress.
- The ATF’s rule reverses the agency’s decade-long precedent.
- The ATF’s rule is a continuation of the Biden Administration’s effort to erode Americans’ Second Amendment rights.
The resolution expands on those points, but you get the idea. There’s no doubt that each point is absolutely true. If passed, the resolution would nullify the pistol brace rule once and for all, taking it out of the court system. There seems to be enough support in the House to pass the resolution, which has 189 co-sponsors and is popular among Republicans, who hold the majority.
A companion resolution has a tougher road in the Senate, but it has 47 co-sponsors and moderates like West Virginia’s Joe Manchin, Montana’s John Tester, and Arizona’s Kyrsten Sinema could conceivably vote for it. If so, that leaves the resolution only one vote shy of the 51 needed for passage. A CRA resolution is not subject to the Senate’s usual 60-vote threshold, only needing a simple majority. So, this resolution has a chance to pass if it can be voted on.
The word from Capitol Hill is that the debt ceiling negotiations have sucked all the oxygen from everything else and that there was no appetite in the House to vote on the resolution. But a massive effort led by YouTube gun influencers led to thousands of calls to Representatives urging them to regain that appetite. Several Representatives were reportedly annoyed by the people expressing their wishes. Well, too bad.
27 State AGs Weigh In
Now, this letter from 27 state attorneys general has turned the pressure up even more. Addressed directly to McCarthy, the letter states that “The pistol brace rule is an egregious overreach. For over a decade, ATF has recognized that pistols equipped with stabilizing braces are not short-barreled rifles subject to registration and tax requirements of the Gun Control Act of 1968 and the National Firearms Act.” The letter goes on to note that ATF does not have the statutory authority to enact such a rule, which has been a primary point in every lawsuit filed against it.
The AGs make their displeasure with the ATF quite plain. “[I]t is also arbitrary and capricious,” they write, “for the agency to reverse course after a decade of permitting the thousands of Americans to and benefit from pistol braces.” “In the States’ view,” the letter continues, “this measure is unconscionable and must be stopped. After all, owners of these firearms should not have to submit fingerprints and identifying information to the government to avoid felony charges.”
The AGs call Congress to action by saying “Now is the time for Congress to step up, too. To eliminate the deadline that owners of braced pistols are facing, Congress can pass a resolution disapproving the rule under the CRA…But only a few days remain between now and the ATF’s deadline. As State Attorneys General, we respectfully request that you schedule a vote on H.J. Res. 44 in time for proceedings in the House and Senate to be completed before the May 31 deadline. Although we generally defer to you on the schedule of the House, this issue is pressing and demands immediate action.”
The letter concludes that “If president Biden vetoes the CRA disapproval, it will be up to us as Attorneys General…to get this rule overturned. But we should still try to alleviate this massive problem using the CRA when it has a chance of success. We ask that you schedule a vote as soon as possible.”
What will happen?
We can’t say for certain, but my gut tells me there’s a 50-50 chance that McCarthy will schedule a vote, but it won’t happen before the deadline, which is today. If the resolution is voted upon, I think it will pass the House. But I think that’s the most we can hope for. Even if supporters could muster 51 Senate votes, I seriously doubt Majority Leader Chuck Schumer (D-NY) will allow a vote. I also have no faith that Minority Leader Mitch McConnell (R-KY) will press him, since McConnell probably doesn’t want it either. But, if the resolution somehow makes it out of Congress, Joe Biden will certainly veto it, and there are definitely not enough votes to override that veto.
So, why bother?
Great question. The answer is that we are showing Congress that gun owners are getting fed up. McCarthy himself is said to be rather miffed at the distraction from his debt ceiling negotiations. That’s a good thing. It’s about time our representatives took notice. They must also take notice that over half of these United States are pushing back.
Public and state pressure could also influence the ongoing court cases. If the House passes the resolution, the Supreme Court may take that as an indication that Congress, and the states, agree that ATF is usurping legislative power. The courts regularly defer to Congressional authority, so long as the subject isn’t unconstitutional. Keeping pistol braces legal does not conflict with the Constitution in any way. If the Senate somehow joins in, that view is only strengthened.
We gun owners can still influence this thing. I urge you to contact your Representatives and Senators in support of the resolution. The House has already noticed us. They need to notice us some more, and so does the Senate. Even if you know your reps are anti-gun, they need to hear from you. If gun owners unite, we have a very loud voice. But that’s always been our Achilles Heel. Now’s the time to fix that.
List of State Attorneys General who signed the letter to House Speaker Kevin McCarthy
Patrick Morrisey – West Virginia
Ken Paxton – Texas
Steve Marshall – Alabama
Treg Taylor – Alaska
Tim Griffin – Arkansas
Ashley Moody – Florida
Christopher M. Carr – Georgia
Raúl Labrador – Idaho
Todd Rokita – Indiana
Brenna Bird – Iowa
Kris Kobach – Kansas
Daniel Cameron – Kentucky
Jeff Landry – Louisiana
Lynn Fitch – Mississippi
Andrew Bailey – Missouri
Austin Knudsen – Montana
Mike Hilgers – Nebraska
John Formella – New Hampshire
Drew Wrigley – North Dakota
Dave Yost – Ohio
Gentner F. Drummond – Oklahoma
Alan Wilson – South Carolina
Marty Jackley – South Dakota
Jonathan Skrmetti – Tennessee
Sean D. Reyes – Utah
Jason Miyares – Virginia
Bridget Hill – Wyoming