Florida Legal Foundation Warns: "Federal Agency Overreach Is Making Criminals Out of Law-Abiding Gun Owners"

Florida Legal Foundation Comment – ATF Firearm Rulemaking and Separation of Powers (2021).

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Date: September 8, 2021

In September 2021, the Florida Legal Foundation submitted a formal comment to the U.S. Department of Justice. Its message was clear: the federal government is dangerously close to crossing a constitutional line—and in doing so, it could turn millions of lawful gun owners into criminals overnight.

At the heart of the debate? A new set of proposed rules by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), targeting pistol braces—a device originally designed to help disabled veterans shoot handguns more safely.

The Problem: A Rule That Changes the Law Without Congress

The ATF’s proposed rule would reclassify certain handguns with stabilizing braces as short-barreled rifles, placing them under strict regulation and criminal penalties under the National Firearms Act.

But here’s the problem: Congress never passed a new law.

Instead, the agency is using “factoring criteria”—a kind of scoring system based on size, weight, attachments, and other features—to decide what counts as a rifle. These subjective factors include things like:

• The type of sights installed

• The length of pull

• Even how heavy the firearm is

  
  

The result? Two nearly identical handguns could be treated differently just because of minor accessories—something the Foundation argues is arbitrary, inconsistent, and unconstitutional.

Why It’s a Separation of Powers Issue

The Foundation’s brief argues that the ATF is trying to rewrite federal law, not just enforce it. And that violates one of the bedrock principles of our system: only Congress makes the laws. “The agency is attempting to redefine what Congress already defined—and that power rests solely with the legislature,” the Foundation wrote.

The filing also points out that under criminal law, ambiguity must be interpreted in favor of the accused—a principle known as the Rule of Lenity. By creating vague rules and retroactively applying them, the ATF could be setting up law-abiding citizens to face felony charges based on unclear, ever-changing criteria.

Why This Matters for Gun Owners—and Everyone Else

This isn’t just about firearms. It’s about how much power federal agencies should have to interpret laws in ways that could:

• Impose criminal penalties without new legislation

• Punish people without clear intent

• Redefine legal products as illegal based on arbitrary factors

The Florida Legal Foundation’s comment raises a broader alarm: Are unelected regulators being allowed to make up criminal law on the fly? If the ATF’s rule goes through as written, millions of legally owned firearms could suddenly fall into a gray area—or worse, become illegal overnight. And that’s without a single vote in Congress.

Bottom Line

The ATF’s attempt to expand its regulatory power without congressional action isn’t just bad policy—it may be a direct threat to the separation of powers.

For gun owners, this isn’t theoretical. It’s a potential legal minefield. And for everyone else, it’s a reminder of why our system demands clear laws and accountable lawmakers—not rules made in a back office.

Read the Florida Legal Foundation Comment attached above.