Changes to ATF Pistol Brace Rule

The federal government has quite complex rules regarding what firearms are legal and under what circumstances. Because the laws were not written well, the executive branch agency responsible for enforcing those laws has had no choice but to make sense of them. Recently the ATF changed their interpretation of a gun part called a “pistol brace”; where those devices were completely legal before, now having one on an AR-15-style firearm will change that firearm’s legal definition from a “pistol” to a “short-barreled rifle” if the gun has a barrel that is less than 16″ long. Since short-barreled rifles require registration (including submitting fingerprints, a complete background check, and a $200 fee), and failure to register the gun is a felony, this is a very big deal for many thousands of American gun owners.

Why aren’t these laws written well? They were created as a performative act to address voter fears that were not necessarily grounded in reality, and then the laws were altered based on gun industry lobbying. In the case of the short-barreled rifle rule, this is part of the 1932 National Firearms Act. The original intent of the NFA was to ban handguns and machineguns. Fear of both types of firearms was overblown due to the influence of early Hollywood and politicians (to what extent is hard to say). Handguns are the type of gun most used in crime as well as being most likely to be involved in firearm accidents and suicides. In order to close potential loopholes in the handgun ban, legislators added in other types of firearms that could be physically cut down to be just as concealable as handguns. Then, the gun lobby intervened and managed to get handguns — the original target of the legislation — removed because handguns were their biggest source of profit.

These same kinds of processes continue to occur. For example, most of the features banned in the 1994 Assault Weapon Ban had absolutely no impact on how lethal or hazardous a banned firearm was. Now, we have a situation where the Biden administration believes it must do “something” about guns, yet it has very little power to do anything. As a result, it is tweaking the details of how ATF enforces existing incoherent firearms laws, and a pistol-braced gun has become illegal even though handguns are legal and rifles are legal.

To be fair, the pistol brace was originally presented to ATF as a device for allowing people with physical disabilities to more easily use heavier handguns, but gun people (who are loath to give the federal government $200 and would definitely not like to register a firearm with the ATF) decided to just treat those braces like a stock. (Not a good stock, but still a stock.) Clearly, users were violating the intent of the law regarding short-barreled rifles, so it really shouldn’t be that much of a surprise that ATF decided to change the rules.

Is the short-barreled rifle law reasonable? I honestly do not have a strong opinion, but it seems like short-barreled rifles are very dangerous in our imagination, but in practice, they really are not more dangerous than a rifle with a typical barrel length. It also seems like the complexity of the registration process and the amount of time it takes is absurd given the modern technology available. If the background check system were adequately funded, and if states were required to submit data to it, it should be a simple thing for people to be offered an instant check for NFA items (i.e., firearms and firearm accessories that are regulated under the National Firearms Act). Yes, even fingerprints can be done electronically, and that’s been the case for years. However, Democrats don’t want to make it easier, and Republicans don’t want to fund the government. Well, actually, Republicans don’t want it to be easier, either — they want to keep gun owners angry at the government and they know they will blame the Democrats for their frustrations.

Does this constant changing of the rules by ATF basically mean that an executive agency is creating laws? In a way, yes, but it is also true that the legislature has failed dramatically in its duty to make coherent legislation, and that the ATF has no choice but to try to make it coherent. While it is clear that some degree of interpretation is inevitable for agencies that execute the law, it is also true that things like the National Firearms Act and the ATF’s interpretation of it are ripe for a legal challenge because the degree of interpretation is so great.

I’m less interested in these hypothetical questions than I am in our material conditions — i.e., what do people have to do to avoid going to jail? The announcement of the new rule is here:
https://www.atf.gov/rules-and-regulations/factoring-criteria-firearms-attached-stabilizing-braces

ATF offers these solutions for those of you who own an AR-15-style gun with a barrel of less than 16″ and a pistol stabilizing brace:

1. Register the short-barreled rifle no later than 120 days after January 13, 2023.
2. Replace the short barrel with a 16-inch or longer rifle barrel
3. Permanently remove and dispose of, or alter, the “stabilizing brace” such that it cannot be reattached.
4. Turn in the firearm to your local ATF office.
5. Destroy the firearm.

If you choose the third option, and if you have a scope on the gun that can only be used if it is shouldered, you must also remove that scope until the gun is legally registered. My understanding at this moment is that if such an optic is attached to the gun, ATF might still interpret the gun as being a short-barreled rifle even though it should really be interpreted as useless.

Please note that you can do 2 and/or 3 now, and then do 1 later. Specifically, you could replace the short barrel with a 16″ or longer barrel, take your time registering it, then convert it back to the shorter barrel after it is fully registered. Or, you could destroy the stabilizing brace — leaving the gun in a fairly useless, but legal condition — then register it and put an actual stock on the gun (which is going to be a lot nicer than the whole stabilizing brace thing was).

Based on previous ATF interpretations and the above guidance from ATF, we can surmise that simply removing the stabilizing brace without destroying it is absolutely not going to get you off the hook if you own an AR-15-style weapon. They are clear about this, in fact. You must alter the brace “such that it cannot be reattached” if you go with this option. I was going to describe a circuitous method that might work to allow you to use the brace later without breaking the law, but really you just need to either destroy the brace or go with a different option.

If you take advantage of the 120-day grace period, they might not charge you the $200 tax — but I am not sure about that at all, so please don’t count on it. I’ll update this page if I can figure out the answer to that question.

If you are a leftist with an AR-15-style weapon with a pistol stabilizing brace, it is imperative that you choose one of the solutions described above. The US government (including the Biden administration) and — especially — US law enforcement still hates you and would be thrilled to discover you to be in violation of the National Firearms Act. Please don’t let that happen to you. I’m very curious to see if leftists will be allowed to register these weapons, or if they will fail the extended background check without any explanation.