Updated: November 14, 2022
The fog surrounding stabilizing 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.
In this article, we will discuss the proposed pistol brace rule, when the pistol brace rule goes into effect, amnesty, and what we know thus far.
Short History of the Stabilizing Brace
When the arm brace was first developed, it had the appearance of a shoulder stock. 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”). Firearm and accessory manufacturers got 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 the 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, rather than through 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 seemed 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 they implement rules. Federal agencies are given great 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 submits 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 Proposed Arm Brace Rule
In short, the proposed rule would reclassify some existing firearms equipped with stabilizing braces as NFA items, resulting in the need to register the firearm and pay a tax. The ATF said it would make the determination by a “totality of the circumstances” approach utilizing a worksheet. This means the determination would be made on a case-by-case basis, depending on the characteristics of the gun itself. Unfortunately, under the worksheet, virtually all stabilized pistols would meet the criteria of an SBR.
Even though that is bad news, it is a helpful departure from the previously proposed rule where the ATF said that no one factor determined classification. For example, under the old hypothetical rule, there would have been no way of knowing whether or not an item would be called up for regulation and taxation.
When Does the New Pistol Brace Rule Go into Effect?
While there have been hints that a final rule on pistol braces will be published in December 2022, there have been just as many rumors that the plan to regulate AR-pistol arm braces has been abandoned altogether. If the final rule were to be published in December of 2022, it likely would not go into effect until 90-days after publication (March 2023). But as the saying goes, “keep your powder dry” because a lot can change between now and then.
What is NFA Pistol Brace Amnesty?
As part of some court filings in an unrelated case, the ATF indicated that there may be an amnesty period. This amnesty period would cover NFA SBRs that were previously classified as stabilized pistols. 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.
Should I Get an NFA Gun Trust for My SBR?
Assuming the final rule is published in December 2022, holding the NFA item in a gun trust may be advantageous. This is because NFA gun trusts allow multiple qualified individuals 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.
What Happens Next? How Do I Stay Out of Jail?
As mentioned above, the reclassification of an AR-style pistol to a short-barreled rifle is very possible. To legally possess an SBR, the buyer must register the firearm and pay a tax of $200. The ATF seems quiet, so for now. AR-style pistols equipped with stabilizing braces are safe from regulation for the time being.
Additionally, there is a silver lining. Even if the ATF does reclassify these firearms as SBRs in the future, we have a more concrete framework. That way, individuals can better determine if a firearm is an SBR or a pistol. Meaning, law-abiding gun owners will have guidance on what item is legal to build and which item needs a tax stamp.
If you have questions about a particular firearm, especially about a firearm with a stabilizing brace, make sure you talk to an experienced gun lawyer before taking any action.
Want to Know More About the SBR Amnesty?
Author: Richard Hayes
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.