AOW Loophole Closed
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 a recent 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 the AR and AK-style pistols.
“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,” the letter reads. This means the overall length of your AR pistol must be measured with the pistol brace removed!
This is an especially important development because it reclassifies certain weapons as “any other weapons” or AOWs. 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.’” The ATF previously stated that 26 inches is the threshold for “concealability.” 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.
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. Formerly, that item was measured with the pistol brace attached and had an overall length of over 26 inches—meaning it was not an AOW. Now, the ATF requires the weapon to be measured 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. If you have one of these, and it is not already registered as an AOW, you may be on the hook for a federal felony.
It is important to note that ATF letters are not “the law.” They are not legally binding, and in some cases, may not even be considered as evidence in court. A recent federal criminal case out of Ohio is a cautionary tale for any gun owner relying on these letters. United States v. Wright, 3:18-cr-00162-JGC, (N.D. Ohio 2018). An Ohio man owned an AR-style pistol, equipped with a modified cheek rest and a barrel less than 16 inches. He was charged with a felony for possessing 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 saw through the government's arguments and, ultimately, the man was found not guilty.
Buyer beware! This same issue may rear its ugly head again soon. The ATF is cracking down on folks who may have relied on their previous letters and bought or built what would now be considered an illegal AOW. 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: Curtis Reynolds
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