If You Thought Your Braced Pistol Can’t Land You in Hot Water With the Feds Anymore, Think Again

You know that old saying about any decent prosecutor being able to convince a grand jury to indict a ham sandwich? Well, there are a couple of other similar worthwhile lessons you should keep in mind regarding how easy it is for the average person to run afoul of the law and get themselves catastrophically entangled in the criminal justice system.

When he wasn’t carrying out one of Stalin’s periodic purges and shipping tens of thousands off to the gulags (and before he ironically found himself in front of a firing squad), Uncle Joe’s favorite secret policeman Lavrentiy Beria famously said that if you showed him the man, he’d show you the crime.

In other words, when some poor vodka-swilling peasant or local apparatchik somehow offended, annoyed, or otherwise inconvenienced the wrong functionary in the nomenklatura, ginning up a way to charge and convict him of something…anything, really…and condemn him to a frozen work camp in the east was about as easy as slurping down a bowl of borscht.

Back here in the land of the free and the home of the brave, an attorney, former ACLU member (back when that actually meant something) and founder of the Foundation for Individual Rights and Expression, Harvey Silverglate surveyed the ever-expanding scope and reach of government and wrote a cautionary lesson called Three Felonies a Day: How the Feds Target the Innocent.

In it, old Harv points out that the average American Joe unknowingly runs afoul of one federal law or another on the daily due to the every-expanding labyrinth of vaguely-written and overly-broad laws and federal regulations that have proliferated since the New Deal. In other words, if you’re unfortunate enough to find yourself on a federal prosecutor’s radar for whatever reason, he can almost surely find a way to charge you with, well, something and make your life a living hell on Earth.

Which brings us to guns and the way you or I could easily find ourselves in hot water, too.

Earlier this week, the Supreme Court unanimously ruled that popping a gummy before bed each night to sleep better or taking a couple of pulls on your Glong to unwind after a long day at work isn’t enough to prosecute someone as a prohibited person if they own a firearm.

Okay then. Good news. But wait…how did federal prosecutors come to know that Ali Hemani was both a gun owner and a weed user? It seems that he was in the feds’ sights because they suspected him of having terrorist ties and executed a search warrant on his home.

As this week’s SCOTUS opinion lays out the facts of the case . . .

Suspecting Mr. Hemani and his family members of terrorism-related activities, the government conducted a search of the family home in 2022. Throughout the process, Mr. Hemani proved cooperative: he surrendered a gun he kept in the house, pointed agents to some marijuana on the property, and consented to an interview during which he told law enforcement agents that he used marijuana about every other day. More than six months after the search, and relying solely on Mr. Hemani’s admitted use of marijuana, the government prosecuted Mr. Hemani under 18 U. S. C. §922(g)(3) for knowingly possessing a gun in his home while being an unlawful user of a controlled substance. 

In other words, after failing to find sufficient evidence to charge him with terrorism, and not wanting to have wasted all that taxpayer-funded duty time and gasoline on searching his property, they decided to charge him for using the jazz cabbage while in possession of a heater. Hemani had, they figured, clearly committed one of Silverglate’s three daily felonies. He admitted it, so it wasn’t even that hard for the feds to find the crime.

Which brings us to the newly-confirmed director of the Bureau of Alcohol, Tobacco and Firearms, Robert Cekada. He sat down recently for an interview with GunTuber Colion Noir. That itself should be a noteworthy indicator of some of the institutional change that’s taken place at the federal government’s firearm regulatory agency in the last two-plus years.

Anyway, Noir asked Cekada about pistol braces and what the common man should know. With the ATF’s brace ban rule having been vacated by the courts, everyone thinks they’re in the clear. A brace-equipped pistol isn’t an SBR and you don’t need a (now zero dollar) tax stamp if the barrel is less than 16 inches. So we’re cool, right?

Well…

Here’s the relevant part from Cekada . . .

Right now the safest place for folks to be — and they’re not going to like this answer — is if you have a rifle and your rifle has an overall length that’s under 26 inches (or a barrel that is) for example 15.9 inches, and it’s designed to be shouldered, you are technically having a short-barreled rifle.

What I want to be clear with is ATF is not pursuing America’s gun owners who are attaching a stabilizing brace and shouldering a rifle that may or may not be a short-barreled rifle. I think people want me to give a clear answer and say, “No, no, you’re good.” The problem is I can’t really do that, because the law reads the way it is. 

Although we will not be proactively sending agents to you, if you run afoul with the local law enforcement or federal agents … for example, you bring yourself on the radar for something else, and they end up executing a search warrant at your house, it’s possible that your firearm is sent to ATF for classification. And they would review each firearm, case-by-case basis, and say it is or it isn’t (an SBR), based on what the law defines. And you could be in a position where a US Attorney’s office would say, “Hey, we want to charge this person.”

Oops. The Biden era ban is dead, but the underlying law is still on the books.

The lesson here: if you own a braced pistol, make sure you don’t pop up on the feds’ radar screen, giving them a reason to look at the guns and accessories you own. That, dear reader, could provide them the opportunity to find a crime.

Cekada is right, of course, in pointing he finger of blame at Congress here. They’re the ones who write and pass laws that are (through ignorance and/or intention) vague and broad enough to be interpreted by agencies like ATF and federal prosecutors just about any way they want. And if a federal prosecutor has the time and the inclination, you could suddenly look like a big, juicy ham sandwich.

So when the political pressure comes down on the regulators from an administration that’s, for instance, nominally headed by a senescent cadaver, but is in reality being guided by dedicated anti-gun ideologues, you could find yourself staring down the business end of a federal indictment, all because one of these is in your safe.

The reality is, of course, as a practical matter, ATF doesn’t really have enough agents to be out there trolling gun ranges and federal lands looking for gun owners shouldering braced pistols. As Cekada goes on to point out in the Noir interview . . .

I think that every US attorney’s office, just like ATF, we have a capacity of how many cases we can bring on. Hence why we don’t have our agents working on (pistol brace enforcement). We’re working on people that are actually using firearms to commit violent crimes, not America’s gun owners that are enjoying shooting a firearm equipped with a brace that is technically considered a short barreled rifle. 

In other words, they don’t have the time, the manpower or the resources to be out there looking for dudes shouldering their braced pistol with seven-inch barrels, so you can probably relax. Unless, of course, you somehow happen to come to their attention for other reasons…and then all bets are off.