Updated: September 1, 2023. Note: This is a rapidly evolving area of law. Consult with an attorney if you have questions regarding your specific circumstances.
The legal fog surrounding the final rule on stabilizing the pistol braces from the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) is causing a collective headache across the country.
This all started on December 18, 2020, when the ATF issued a formal notice exercising its rulemaking authority. In that notice, the ATF sought to reclassify AR-style pistols equipped with stabilizing braces as NFA items. Although this move was predictable, the ATF could not make up its mind and ultimately withdrew the rule.
However, just as the ATF changed its mind, it happened again! On June 7, 2021, the Attorney General signed ATF proposed rule 2021R-08, Factoring Criteria for Firearms with Attached Stabilizing Braces, amending ATF’s regulations to clarify when a rifle is “intended to be fired from the shoulder.
In response to the latest proposed rule, gun owners made their voices heard during the notice and comment period. However, even with a huge outpouring of opposition, we seem to be on the edge of a monumental change in how gun-stabilizing arm braces are treated.
Unfortunately for gun owners, Factoring Criteria for Firearms with Attached Stabilizing Braces was adopted as 2021R-08F.1
In this article, we will discuss the final rule on pistol braces, when the pistol brace rule goes into effect, amnesty (now passed), injections, and what we know thus far.
Short History of the Pistol Brace
When the arm brace was first developed, it had the appearance of a shoulder stock. It is important to note that attaching a shoulder stock to an AR-style pistol with a barrel length under 16 inches turns the firearm into an NFA weapon: specifically, a short-barreled rifle (“SBR”).
However, firearm and accessory manufacturers sought pre-approval from the ATF to ensure these braces did not turn AR pistols into SBRs. While the ATF took many different (sometimes contradictory) positions on these items over the years, they initially decided braces did NOT turn a pistol into an SBR.
So what changed? Over time, through private letters to firearm and accessory manufacturers, the ATF took the opposite stance: that some of the design features of the stabilizing braces would turn an AR-style pistol into an SBR. The ATF chose to flex its regulatory muscles through targeted, private, and informal decision letters, as opposed to the formal rulemaking procedures. These letters have left the gun owners of this country with a confusing regulatory framework and no idea how to navigate it.
The ATF’s current stance is also unclear; it seems to take the following stance: rather than being used for its intended purpose, many stabilizing braces allow the user to purposefully shoulder a pistol. Indeed, some of these braces are being marketed as such. This marketing approach is contrary to the intended purpose of the stabilizing braces, and the ATF believes that an AR pistol with a stabilizing brace may now be restricted as an SBR.
Notice and Comment Process
Why ask for comments from the public before issuing a concrete rule? In short, this is a procedural step that federal agencies must complete before implementing rules. Federal agencies are given deference in defining the terms in their own industry, but they cannot do so without advanced notice to the public and without asking for public input. Agencies cannot change the rules behind closed doors or in the proverbial dark of night.
In order to ensure the public has a voice, much like the ATF did with bump stocks in 2018, agencies must ask the public for comments and consider public opinion when attempting to implement new rules and regulations. After the public submit their opinions, the agency must review the comments, amend the final rule if necessary, and then give the public notice of what the final rule entails, when the rule will be in full force, and how to comply with the rule.
The New Final Rule on Braces
In short, the rule reclassifies some existing firearms equipped with stabilizing braces as NFA items, resulting in the need to register the firearm and pay a tax. The ATF makes the determination by a totality of the circumstances approach (discussed below). This means the determination would be made on a case-by-case basis, depending on the characteristics of the gun itself.
Additionally, the ATF did not adopt the worksheet, formally known as Worksheet 4999. However, many of the same criteria found in Worksheet 4999 will be subjectively considered when determining if a (former) pistol qualifies as an SBR.
There are a few technical specifications to all of this, discussed below, but in short, the ATF now treats stabilizing braces the same as traditional shoulder stocks.
What Does the ATF Look at When Deciding if a Braced Pistol is an SBR?
This all hinges on the new definition of “rifle.” Accordingly, the ATF will consider the new definition along with five primary factors when evaluating whether a braced pistol qualifies as an SBR.
The new CFR definition of a rifle now includes a weapon that is equipped with an accessory, component, or other rearward attachment (e.g., a “stabilizing brace”) that provides a surface area that allows the weapon to be fired from the shoulder, so long as other factors that indicate that the firearm is designed, made, and intended to be fired from the shoulder.
These factors are:
- Length and weight – How similar is the weight and length of the braced pistol to that of a similarly designed SBR;
- Trigger position – How close is the trigger to the center of the firearm with all accessories extended (like a rifle), or is the trigger near the rear of the gun (like a traditional pistol);
- Optic design – How are the sights or scope designed to be used (i.e., intended to be raised to the shoulder to use effectively);
- Manufacturer’s marketing – How does the manufacturer promote the use of the firearm; and
- Common use – How is the gun community actually using the firearm?
It is important to note that if there is no rearward attachment, the firearm will likely not qualify as an SBR.
Additionally, a rearward attachment required for the cycle of operations of the gun (e.g., a standard 6-6.5 inch buffer tube on an AR-style pistol), even if it provides a surface area that allows the firearm to be shoulder-fired, will not qualify as an SBR.
When Does the New Pistol Brace Rule Go into Effect?
On Friday, January 13, 2023, the Justice Department announced their “New Rule to Address Stabilizing Braces, Accessories Used to Convert Pistols into Short-Barreled Rifles.”2 The DOJ submitted this rule to the Federal Register for publication.
It is important to note that submission is not the same as “publication.”
Publication took place on January 31, 2023,3 and took effect IMMEDIATELY.
However, this rule also provided for a 120-day “grace” amnesty and compliance period (discussed below).
The 120-day “grace” amnesty and compliance period expired on May 31, 2023.
Who is Impacted by The Final Rule?
Unlike the final rule on the definition of frame or receiver,3 which primarily impacted dealers and manufacturers, the pistol brace rule will impact tens of millions of gun owners. These include:
- Unlicensed possessors (i.e., folks who have not registered the “SBR”);
- Non-Class One or Class 2 FFLs (i.e., dealers or manufacturers);
- Certain qualified FFL importers or manufacturers under the GCA; or
- Certain governmental entities.
How to Comply with the New Final Rue on Pistol Braces?
The ATF pistol brace rule and SBR amnesty raise many issues, but it is important to note that each state’s firearms laws are different. We will briefly discuss compliance under federal law ONLY. You should consult with an attorney licensed in your state to ensure there are no additional legal requirements.
In short, there are five primary methods of compliance under federal law:
- Convert the firearm into a traditional rifle;
- Destruction; and
- Submit the firearm to the ATF for a determination.
It is important to note that disassembly and possession of an unattached brace does not constitute possession of an SBR. This is in contrast to bump stocks, where possession of that disassembled item alone constituted possession of a machine gun.
That being said, there is an argument to be made with some quick-detach braces stored with pistols capable of accepting the brace. This may demonstrate intent to assemble an otherwise unregistered SBR. Therefore, it may be wise to keep now-detached braces separate from pistols to avoid a misunderstanding.
ATF Pistol Brace Rule and SBR Amnesty
Amnesty, in this instance, means that an individual or entity (such as an NFA gun trust) would not be required to pay $200 to register the item. In other words, a free tax stamp. Once the final rule was published (1/31/2023), the clock started. From that point forward, individuals had 120 days to apply for a tax stamp via Form 1 without paying for the tax stamp. This means that a person could have theoretically applied for a free tax stamp up until May 31, 2023. This amnesty period only covers NFA SBRs that were previously classified as stabilized pistols, not traditional SBRs (e.g., a short-barreled rifle with a stock).
Since the amnesty period has expired, individuals or entities may still obtain a tax stamp for the item but would be required to pay the $200.
If you are wondering, “Can I obtain a tax-free SBR with a stock?” you may be out of luck. The final rule only supported a free tax stamp for a pistol equipped with a stabilizing brace.
However, there will only be one category of SBR in the future. So, theoretically, the brace could be replaced with a stock after the tax stamp is approved.
If the stock does not change the overall length of the firearm, no pre-approval from the ATF would be necessary. However, if the stock would change the overall length of the firearm, pre-approval from the ATF would be necessary.
Should I Get an NFA Gun Trust for My SBR?
Holding the NFA item in a gun trust may be advantageous. This is because NFA gun trusts allow multiple qualified individuals to possess the same NFA item.
Instead of an NFA tax stamp being issued to a single person (who would be the only person who could legally possess the NFA Item), the tax stamp is instead issued to a legal entity (in this case, an NFA Gun Trust) with multiple trustees who then could legally possess the NFA item(s).
But that is not the end of the story; there are many benefits to obtaining an NFA gun trust.
While the period has expired, it is important to note that braced pistols must have been in the trust prior to January 31, 2023, in order to take advantage of the “free” tax stamp as part of the amnesty and compliance period.
A person could still add a braced pistol to their trust after January 31, 2023; however, they would have to pay $200 for a tax stamp. For this reason, removing the brace or finding a suitable stock before registration may be the best path forward.
Have the Courts Stopped the Final Rule?
Not just yet. However, there are a handful of injunctions that have temporarily stopped the final rule on stabilizing braces from going into effect for some people. The primary group of people impacted are those who are members of some predominate Second Amendment Advocacy organizations. These include:
- Gun Owners of America;
- Gun Owners Foundation;
- The Second Amendment Foundation;
- The Firearms Policy Coalition;
- Employees of the State of Texas; and
- Many others.
But just because you may be a member of one of these organizations does not mean you will be covered. In order to ensure you are covered, most individuals would have had to have been a member of the organization at the time the lawsuit was filed, or the injunction was issued. To confirm, please contact your respective organization.
Frequently Asked Questions (FAQs)
We discuss further some of the most frequently asked questions regarding stabilizing braces on our YouTube Channel – The Armed Attorneys.
In this video, we answer:
- Can I remove the pistol brace to comply with the law?
- Can the ATF use the Form 1 against me (is it a trap)?
- Can I switch out the brace with a traditional stock after approval?
- Do I have to destroy an imported pistol (now SBR) under 18 U.S.C. 922(r)?
What Happens Next? How Do I Stay Out of Jail?
The compliance options, discussed above, are a good start, but it is always best to consult with a Gun Rights Lawyer or attorney licensed in your state who can guide you based on your particular firearm.
Unfortunately, the reclassification of an AR-style pistol to a short-barreled rifle is here. And while mass non-compliance is expected, to legally possess an SBR, the buyer must register the firearm during the amnesty period, or pay a tax of $200.
If you have questions about a particular firearm, especially about a firearm with a stabilizing brace, make sure you talk to one of our Houston criminal defense lawyers before taking any action. But remember, simply removing the brace would comply with the final rule.
Author: Richard D. Hayes II
DISCLAIMER: The information on this website does not contain legal advice or create an attorney-client relationship. Every case is different, and this material is not a substitute for, and does not replace the advice or representation of, a licensed attorney.
- ATF – FACTORING CRITERIA FOR FIREARMS WITH ATTACHED “STABILIZING BRACES” ↩︎
- DOJ – Justice Department Announces New Rule to Address Stabilizing Braces, Accessories Used to Convert Pistols into Short-Barreled Rifles ↩︎
- Federal Register – Definition of “Frame or Receiver” and Identification of Firearms ↩︎