Can the ATF Make Laws?

When it comes to what the Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE/ATF) can and cannot do, there’s often some confusion. Most gun owners know the ATF has something to do with enforcing firearms laws and handling things like Form 4473 used for a background check when buying a gun or the approval process related to NFA items like suppressors. Considering what’s been going on with the ATF lately, though, you might be wondering whether the ATF can make laws (after all, that’s pretty much what they’ve been doing). We’re going to answer that question and also consider who or what is supposed to regulate the regulators.

Remember: this isn’t legal advice and should not be construed as such. This is simply information.

atf headquarters
The ATF is housed in the Ariel Rios Federal Building in Washington, D.C. (Photo: Wikipedia)

What’s the ATF?

In short, the ATF was officially formed in 1972 as an independent agency. That’s right, the ATF as you know it today isn’t that old. Its existence was predated by things like Prohibition and the creation of the IRS, not to mention the National Firearms Act of 1934 and the Gun Control Act of 1968. Basically, if you trace the ATF’s timeline, you find out it’s connected to alcohol, tobacco, and the gangs known for then-illegal alcohol sales.

Interesting sidenote: if you’re familiar with Eliot Ness and his ties to Prohibition and Al Capone, you might be fascinated to find out Ness is listed as a Legacy ATF Agent on the ATF’s website. Although the ATF wasn’t technically in place when Ness was in law enforcement, he’s connected to its history.

atf agents
What is the ATF, and what is it there to do? (Photo: BATFE)

What does the ATF do?

This is a big one because what the ATF is meant to do from a legal perspective is different than the things they try to do now. First, let’s check out what the ATF states on their website regarding what they do related to firearms:

ATF recognizes the role that firearms play in violent crimes and pursues an integrated regulatory and enforcement strategy.

Keep those words in mind: regulatory and enforcement.

Can the ATF make laws?

According to the United States Constitution, laws are created through the Legislative branch of the federal government. Congress, specifically, passes laws on the federal level that the ATF then enforces. The ATF is not part of the Legislative branch; it’s part of the Executive branch. It’s there for enforcement, not creation. So how does the ATF issue final rulings and turn untold numbers of law-abiding gun owners into felons overnight? They use a loophole.

A great example of the way the ATF utilizes a loophole to make laws without technically making laws is covered by what happened with stabilizing braces. A pistol stabilizing brace is an attachment for an AR pistol or other device with a barrel under the length of 16 inches that’s designed to literally brace the firearm against the user’s forearm. This attachment can be a polymer blade or Velcro strap, but what it is not is a stock.

When the ATF decided to ban stabilizing braces, they did so by simply changing one of their definitions.

In January 2023, the ATF used Rule 2021R-08F to redefine SBRs (short-barreled rifles). By changing the definition of an SBR—something they enjoy calling “clarifying”—the ATF forced a pistol brace ban through. Although there were quite a few white papers and letters written by ATF agents stating pistol braces were legal and that shouldering them was also legal—although those agents agreed the braces were not designed for shouldering—they changed their minds. They “generously” offered a brief window of waiving tax stamp fees for gun owners with a stabilizing pistol brace to register their guns as SBRs. Of course, they also said gun owners could destroy or turn in their braces.

Now, regarding pistol braces specifically, lawsuits were won by organizations including the Firearms Policy Coalition (FPC) and National Rifle Association (NRA) that resulted in existing members being able to keep their pistol braces (at least for the time being). These lawsuits are ongoing, and in March 2024, FPC filed a response brief in the 5th Circuit Court of Appeals. The legal fight against the ATF’s pistol ban isn’t over, but FPC is still in the battle.

Back to the original question regarding whether the ATF can make laws. Taken literally and legally, no, the ATF cannot make laws. Their entire existence is about enforcement and regulation. However, they’ve been twisting and redefining firearms for years as a means to an end. That, among other things, allows the firearms industry to push back on the legal side.

atf destruction of firearms
The ATF provides this guide on the proper destruction of firearms. (Photo: BATFE)

Can you ignore an ATF rule?

Let’s consider the pistol brace ban again for this one. Yes, there are ongoing lawsuits, but the only people currently allowed to possess a brace without a tax stamp are those who were already members of FPC, GOA, and NRA when the initial lawsuits were won. How that will play out as time passes remains to be seen. If you weren’t already a member, that win doesn’t apply to you. And if you need clarity, the best route is to contact the FPC.

Sometimes, the answer is to speak to a qualified attorney, but I can tell you from lengthy experience that not all attorneys who should know firearms law know anything at all, and NFA items are a whole other issue altogether. So when you consider speaking to an attorney, make sure they’re truly qualified beyond simply working in the industry or having passed the bar.

The bottom line is that you cannot ignore an ATF rule. You might not like it—you may be aware it isn’t constitutional and that the ATF is overstepping big time—but you can’t ignore it. Deciding the rules don’t apply to you is a great way to be fined and possibly arrested. This has been demonstrated time and again by everyone, from private citizens to known names within the gun industry.

Who has power over the ATF?

As of 2023, the ATF falls under the Department of Justice (DOJ). The ATF is a law enforcement agency, so that does make sense. Yes, this was a fairly recent change. It was the Homeland Security Act of 2002 that moved the ATF under the DOJ. So, who controls the DOJ? The attorney general.

At this time, the head of the DOJ is 86th Attorney General Merrick B. Garland. This office is one that’s filled by appointment by the current President of the United States. In this case, that means AG Garland was appointed by President Biden. The POTUS nominated Garland almost instantly upon taking office in 2021. Garland became the AG with a known and proven history of voting against pro-gun issues. He firmly fell on the side of supporting gun control. You might be thinking this is an office meant to be free of bias, and you’re correct, but politics rarely works that way.

It’s certainly possible the DOJ could be dragged into the issues involving the ATF utilizing loopholes to create laws, but even if they are involved, will it matter?

What this all comes down to is that the ATF cannot make laws, but they’re using workarounds to get it done. With organizations like the FPC fighting for Second Amendment rights, we aren’t without hope. The best way to get involved is to support the organizations that really do get involved in fighting unconstitutional laws and regulations. Pick your favorite and find a way to back them. And pay attention to the laws and regulations because claiming ignorance never works as a legal defense.

Kat Ainsworth Stevens is a long-time outdoor writer, official OGC (Original Gun Cognoscenti), and author of Handgun Hunting: a Comprehensive Guide to Choosing and Using the Right Firearms for Big and Small Game. Der Teufel Katze has written for a number of industry publications (print and online) and edited some of the others, so chances are you've seen or read her work before, somewhere. A woman of eclectic background and habits, Kat has been carrying concealed for over two decades, used to be a farrier, and worked for a long time in emergency veterinary medicine. She prefers big bores, enjoys K9 Search & Rescue, and has a Master's Degree in Pitiless Snarkastic Delivery.

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