Federal agents found an illegal assault rifle in the closet of Garret Miller’s Richardson home when they arrested him for storming the U.S. Capitol, court records show.
He is now charged with illegally possessing an unregistered short-barreled rifle. Miller, sentenced in February to a little over three years in federal prison for crimes related to the Jan. 6 Capitol riot, faces up to 10 years in prison for the gun charge.
Yet hundreds of thousands of people legally owned unregistered firearms remarkably similar to Miller’s in appearance and function – guns classified as pistols.
The weapon, known better as an AR-style pistol, is modeled after popular semi-automatic rifles like the AR-15 and AK-47 and has a rear attachment called a “stabilizing brace.” This accessory resembling a rifle stock was originally designed to help those without full use of both arms fire with one hand by strapping the gun to their forearm.
But over the past decade, authorities say, braces evolved, transforming pistols into assault rifles intended to be fired from the shoulder by those without disabilities. Many fire high-velocity rounds that can pierce police body armor.
As a result, the Bureau of Alcohol, Tobacco, Firearms and Explosives in January reclassified such configurations as short-barreled rifles that must be registered to remain legal.
Gun control advocates say the gun industry saw stabilizing braces as an opportunity to profit by helping people to convert their pistols into assault rifles with short barrels, making them easy to conceal. They can fit inside a normal-size backpack, for example. An AR-15 and AK-47 do not.
Knowledgeable gun owners should have known the newer line of pistol braces were an attempt to “skirt the law,” said Lindsay Nichols, policy director for the Giffords Law Center To Prevent Gun Violence. The group is run by former Arizona Congresswoman Gabrielle Giffords, a Democrat, who was shot in a 2011 Tucson mass shooting that left six dead.
The gun industry, she said, knew the majority of their customers were not disabled.
“They (gun companies) were exploiting the loophole in order to make more profit off these devices,” Nichols said.
That alleged loophole was scheduled to close at the end of the month with the ATF’s enforcement of its new rule. But the Fifth Circuit Court of Appeals on May 23 partially blocked it from taking effect – in response to one of the many lawsuits filed by gun groups and owners.
The appeals court said its temporary injunction pending appeal applies only to the plaintiffs in the case. The order is not expected to prevent ATF from enforcing the rule nationally.
ATF’s rule change angered gun enthusiasts and the firearms industry, prompting the lawsuits and a Texas bill that sought to make short-barreled rifles legal under Texas law. The bill made it out of committee but went no further.
The short-barreled rifle controversy stems from a familiar problem: trying to apply decades-old federal laws to new technology. The National Firearms Act that regulates short-barreled rifles was enacted in 1934.
ATF is tasked with interpreting how the law applies to new products like pistol braces and bump stocks, which allow rifles to fire multiple rounds like machine guns.
A similar legal fight over bump stocks has been underway for several years. ATF banned bump stocks in 2017 by classifying them as illegal machine guns.
The deadliest mass shooting by an individual in U.S. history prompted the move, which had the support of then-President Donald Trump, a Republican. A gunman firing from a Las Vegas hotel used bump stocks in 2017 to kill 60 people and injure more than 400 others.
But it’s unclear whether the bump stock prohibition will hold. Two federal appeals courts have since stuck down the nationwide ban, making it likely that the matter will end up before the U.S. Supreme Court.
The new ATF rule for short-barreled rifles requires gun owners register their rifles and pay a $200 tax or permanently remove the braces. They could also replace the short barrel with one longer than 16 inches.
Gun rights advocates complain ATF provided conflicting guidance on braces and has saddled gun owners with burdensome requirements to keep them.
Registration can be a lengthy process, lasting up to a year. It includes a vigorous background check and the submission of owners’ fingerprints and photo identification. Special paperwork is required to transport the weapons across state lines.
“The NFA imposes severe taxes, burdens, delays, and restrictions upon the acquisition, possession, and lawful use of the arms it regulates, including short-barreled rifles,” a lawsuit filed by a gun company and Texas gun owners said. “Indeed, ATF concedes that the purpose of the NFA was to stop individuals from purchasing certain arms.”
Critics of the rule complain it’s not only unconstitutional but unfair. They say ATF reversed itself after allowing the sale of stabilizing braces for years.
“The ATF has just changed its mind without going through Congress,” said Richard D. Hayes II, a Houston lawyer who specializes in gun and weapons laws.
Hayes said pistols with stabilizing braces are not designed to be fired from the shoulder and therefore should not be classified as rifles. Many gun owners unaware of the new regulatory change will be subject to criminal charges, he said.
“When you’re making criminal laws, you really need to go through the Congress,” Hayes said.
But gun control supporters say the change is needed to keep dangerous weapons out of the wrong hands – such as gang members, domestic terrorists and other criminals. They note AR pistols with stabilizing braces were the weapon of choice in at least two mass shootings.
Connor Betts shot and killed nine people in 2019 in Dayton, Ohio. The 24-year-old bought his gun from an online retailer in Texas, according to published reports.
And 21-year-old Ahmad Al Aliwi Al-Issa is accused of shooting and killing 10 people in 2021 at a supermarket in Boulder, Colo.
“These are weapons that combine the dangerousness of a rifle and the dangerousness of a handgun,” said Nichols of the Giffords Law Center.
Derek Cohen, vice president of policy for the Texas Public Policy Foundation, a conservative Austin think tank, said the shorter barrel makes the gun less lethal by reducing the velocity of the bullets.
Cohen called the rule change an arbitrary interpretation of federal law made by “unelected bureaucrats.”
Texas gun love
Federal law has long banned unregistered short-barreled rifles, defined as guns with barrels shorter than 16 inches that are designed or intended to be fired from the shoulder.
The NFA, which went into effect during the reign of mobsters like Al Capone, restricts other weapons Congress deemed unusual and dangerous such as sawed-off shotguns, machine guns, destructive devices and silencers.
As of May 2021, more than 530,000 short-barreled rifles were registered in the U.S., according to an ATF report. Of that, Texas had the most: 81,000. Second place went to Florida, with more than 50,000 rifles.
ATF agents are not expected to go door to door to arrest gun owners with unregistered braced firearms. Typically, such gun charges are filed when law enforcement officers find the weapons while investigating other criminal activity such as drugs and threats, as in Miller’s case.
Miller and at least two other North Texans have been prosecuted for unregistered short-barreled rifles in recent years.
While the gun industry fights new regulations on braced pistols, Miller is on his own mission to overturn restrictions on traditional short-barreled rifles.
Miller, 37, was arrested March 30 and charged in Dallas federal court with possession of an unregistered firearm. His AR-style gun had a rifle stock and a short barrel, court records show. He pleaded not guilty and is trying to have the indictment thrown out, saying the charge violates his Second Amendment rights.
His attorneys, Clint Broden and Mick Mickelsen, argued in an April filing that Miller’s rifle was not dangerous or unusual. They noted that a short-barreled weapon called the “blunderbuss” was in use during the time of the American Revolution and when the Second Amendment was ratified.
“The question for this Court, therefore, is whether a short-barreled rifle is a dangerous and unusual weapon at the time the Second Amendment was enacted, and the historical records show that it was not,” the attorneys wrote.
The prosecutor, Joseph Magliolo, said Congress and the Supreme Court have recognized that such rifles are “likely to be used not for self-defense but for criminal purposes.”
“Miller’s instant claim rests entirely on the notion that a single, short-barreled British — not American — weapon, allegedly used in the eighteenth century, somehow renders his high-powered, easily concealable rifle neither dangerous nor unusual,” he wrote.
In an earlier North Texas case, Eric McGinnis was arrested after being caught with an unregistered short-barreled rifle in a backpack. He also was charged with illegally possessing ammunition while under a protective order, for assaulting a girlfriend.
McGinnis, 47, went to trial and was convicted on both counts. A Dallas federal judge in 2019 sentenced him to eight years in prison.
During the trial, his attorney established while cross-examining a government witness that McGinnis would not have committed a crime if he’d had an arm brace instead of a rifle stock on the weapon.
“So there are circumstances where it [attachment] can appear similar to…a brace. But if it was a brace, it would not need to be registered?” Lara Wynn asked.
“So that mistake could be made…if someone does not do their research?”
Micro conversion kits are another gun industry innovation that transform pistols into short-barreled rifles that must be registered.
Taylor Gates found that out the hard way.
Police who investigated drug sales at his Allen home searched it and found a 9mm Glock pistol attached to a conversion kit, “which converts the handgun into a short-barreled rifle,” court records show.
Gates, 32, was charged with possessing an unregistered firearm and possession of a firearm by an unlawful user of a controlled substance. He was sentenced last August to 18 months in federal prison.
Joseph J. Vince Jr., a former ATF agent, said the NFA has worked well since its passage and very few registered weapons have been used in crimes.
Vince, now a professor at Mount St. Mary’s University in Maryland, said ATF should have required registration of braced pistols from the beginning. The rule change is not a ban on short-barreled rifles, he added.
“We’re just ensuring that the right people have them.”