Updated: Oct 7, 2020
No; as of the writing of this article, pistols affixed with arm braces are still legal. There is no indication at this time that the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) is attempting to restrict or prohibit pistol braces or AR-type pistols.
In a letter to the ATF and U.S. Attorney General William Barr, Florida Representative Matt Gaetz, along with six fellow members of Congress, urged the ATF to cease its practice of issuing “secret determinations” which affect gun owners’ rights. These “secret determinations” are an alarming practice whereby the ATF, in a rule-making capacity as an executive agency, makes determinations of law in private correspondence. For many years, the ATF has issued “private determination letters” to ordinary citizens and businesses for specific items. These letters contain opinions as to the legality of weapons or weapon attachments. These letters are sent privately and are not made public unless the recipients publish them.
Any citizen or company can submit an item to the ATF for their consideration. The ATF will typically send these items, such as pistol braces or forward grips, to their Firearms and Ammunition Technology Division to make the determination. After analyzing the device, the ATF will send a letter stating whether the item, in its intended use, constitutes a reclassification of a firearm or pistol into a weapon requiring federal registration (i.e., a short-barreled rifle [“SBR”] or any other weapon [“AOW”]). The use of such a classified item is illegal without federal registration and a corresponding National Firearms Act (“NFA”) tax stamp.
These determination letters are proving controversial. Though they were intended to provide guidance to a specific individual, they have become a lightning rod in the online gun community as a way to debate an item’s legality. Further, many rely upon these letters when purchasing items or modifying a current firearm. The trouble is private determination letters are NOT a reliable source of legal authority.
Determination letters are not law, and in some jurisdictions, courts have prevented these letters from being introduced as evidence beneficial to gun owners. United States v. Wright, 3:18-cr-00162-JGC, (N.D. Ohio 2018). Ultimately, these letters are not legally binding, and there is a strong chance a gun owner will not be able to use them at trial. By issuing these letters, the ATF can create a false sense of security for the people who rely on them.
Additionally, many weapons manufacturers obtain determination letters before releasing weapons or attachments. It is not uncommon for competitors or copycats to release similar products with slight variations without getting a determination from ATF. Any deviation, however slight, could potentially reclassify an item into a category requiring registration with the National Firearm Registration and Transfer Record. Gun owners, as the end-users of the product, may be criminally liable for possessing an item that appears to be legal.
There is no transparency in the ATF’s decision-making process. Under the Administrative Procedure Act (“APA”), executive agencies are allowed to function as rule-making bodies in a manner similar to the legislature. When an executive agency is acting as a rule-making body, it must follow a notice-and-comment procedure. This requires the agency to provide the public notice of a proposed rule and a period for public comments, allowing interested parties an opportunity to participate in the discussion of proposed rules.
The ATF is skirting the notice-and-comment procedure, which is arguably a violation of due process and the APA. Compounded by the fact that the ATF is issuing these opinions in private, citizens are right to be concerned about these “secret determinations.”
The ATF may have issued a new determination letter regarding the legality of pistol braces, but we do not know because they have a habit of not making these pieces of correspondence public.
Author: Dylan Price
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.