Updated September 1, 2023
With the growing popularity of “stabilizing braces” or “pistol braces,” the government is more concerned than ever with classifying and reclassifying weapons equipped with them. In fact, there have been several changes in ATF policy. As a result, many have said that the AOW loophole closed. On top of all that, the ATF recently implemented the Final Rule on Factoring Criteria for Firearms with Attached “Stabilizing Braces”. We have a complete breakdown of that rule here.
How to Measure an AOW?
In a letter dated June 25, 2019, the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) reiterated these items do not turn a pistol into a rifle, which is always good news for law-abiding gun owners. But more importantly, this letter completely changed the method of measuring the overall length of AR and AK-style pistols.
The letter reads:
“It is inappropriate to include a folding ‘stabilizing brace’ accessory in the overall length measurement of a firearm because, unlike a rifle or shotgun, a stabilizing brace is not an element of either a statutory or regulatory definition of a firearm.”
This means measurement must take place with the pistol brace removed!
The Reclassification of AOWs
This is an especially important development because it reclassifies certain weapons as “any other weapons” (“AOWs”)1. Previously, many people perceived a loophole in the AOW registration requirement and built unregulated firearms based on that loophole. The ATF even specifically addressed this, noting people were using the pistol brace to create an artificial overall length “avoiding classification as an ‘AOW.'”
What is Considered Concealable?
The ATF previously stated that 26 inches is the threshold for “concealability”2. If you built an AR-style pistol with an overall length of over 26 inches, the ATF would not consider that item concealable. If it is not concealable, it cannot be an AOW. Many gun owners and even gun manufacturers took full advantage of this loophole by attaching vertical foregrips to AR-style pistols and Mossberg Shockwave-style firearms with an overall length of over 26 inches. The result: a weapon that would only be classified as a firearm and would not require any federal registration.
No NFA Stamp Required
There were many companies that advertised their weapons as “NO NFA STAMP REQUIRED.” If you purchased such a weapon, it is possible that the ATF is already investigating you for possession of an unregistered AOW.
AOW LOOPHOLE CLOSED
Formerly, measurements took place with the pistol brace attached. If the pistol had an overall length of over 26 inches—meaning it was not an AOW. Now, the ATF requires measuring with the brace removed.
If the new overall length is less than 26 inches, the ATF will consider that concealable. A concealable firearm with a vertical foregrip is an AOW that requires registration with the ATF. The possession of an unregistered AOW is punishable as a felony.
A Warning on ATF Letters
It is important to note that ATF letters are not “the law.” In fact, many courts have excluded these letters as evidence from cases. A recent federal criminal case out of Ohio is a cautionary tale for any gun owner relying on these letters3.
An Ohio man owned an AR-style pistol equipped with a modified cheekrest and a barrel less than 16 inches. The man allegedly possessed an unregistered NFA item, specifically a short-barreled rifle (“SBR”). The man relied on an ATF letter stating that the accessory did not turn an AR pistol into an SBR. The government convinced the judge to exclude the ATF pistol brace letter from evidence. That means the jury did not even get to review the ATF’s letter explaining their interpretation of the law. Fortunately, the jury acquitted the man.
Buyer beware! This same issue may rear its ugly head again soon. The ATF is cracking down on folks. Even purchasers who relied on the ATF’s previous letters.
If you have any questions about the legality of a certain type of firearm, or if you have concerns that you may be the target of an ATF investigation, you should contact an experienced firearms attorney immediately. Do not forget your constitutional rights.
Author: Richard D. Hayes, II