The ATF conducted a webinar on 1/31/2023 to help FFLs understand the new brace rule that went into effect that same day. That means anyone with a braced pistol needs to decide what course of action they are going to take because they have 120 days to comply.
Unless someone gets a temporary restraining order issued to put a hold on this regulation, people must figure out what they are going to do and when. Please notice I said “and when”. Figure out what option you are going to take and when you must start doing it. For example, if you plan to remove the brace and destroy it, when must you do that by? If you plan to make your pistol into a rifle, when do you need to order parts and do it by? Always remember that a whole bunch of other braced pistol owners will wait to the last minute and then get upset when they can’t find parts, their gunsmith doesn’t have time, etc.
Click here for the ATF page that links to all of the published guidance they have involving braces including the full text of the new rule and frequently asked questions.
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We still have to see what the ATF continues to try and clarify. They have said 922r does not apply and they also said the 88 day background check issue still applies so keep tabs on things.
It’s really an unsettling unsettling time for owners of pistols with braces to be in. The four options in my own words:
Remove the brace and go back to having just a pistol. Destroy the brace.
Turn the pistol into a rifle either changing the barrel to over 16″ or adding an extension. Remember the 26″ minimum overall length limit.
Go the SBR route and register your weapon. Bear in mind selling it down the road would require working with an 03 FFL and not a basic FFL.
Turn in your braced pistol to the ATF to destroy it (I hope nobody has to go that route.
Speaking for myself, I’d either go for #1 or #2. If you’ve always wanted a SBR, then go that route.
Now that the timer is running and the ATF had a webinar for FFL dealers today to try and explain what is going on, I guess we will find out more.
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Okay, I wrote about the ruling, barrel options and was working on a post about removing the brace to avoid the whole SBR declaration when I saw a video interview of Steven, a Gun Owners of America attorney attending SHOT explaining how the brace rule and legal gun owners availing of the SBR option will trap a lot of people and potentially get them in major hot water legally. Rather than reinvent what he said, watch this video:
If you aren’t a member of Gun Owners of America (GOA), I recommend them. They actually get things done and don’t just take your money. This rule has a fatal flaw that will trap gun owners and must not be allowed to pass.
If you find this post useful, please share the link on Facebook, with your friends, etc. Your support is much appreciated and if you have any feedback, please email me at in**@ro*********.com. Please note that for links to other websites, I may be paid via an affiliate program such as Avantlink, Impact, Amazon and eBay.
Please note that I am not an attorney and this is not legal advise. It is critical that you read the actual final rule and follow itas well as any state or local laws that might apply.
Well, on Friday, January 13th, 2023, the ATF decided to post their final ruling on stabilizing braces. My first blog post was about this rule and options. As folks try to figure out what they are going to do, one option is to do something with the barrel so it will be considered a rifle. This blog post is about that and may be far easier than you think.
Let’s start by looking at the exact text from the final rule located on page 272: “Remove the short barrel and attach a 16-inch or longer rifled barrel to the firearm, thus removing it from the scope of the NFA.” At issue is the barrel length – so let’s pick this apart.
Barrel length is measured by having the bolt closed, inserting a dowel down from the muzzle end of the barrel with any removable devices removed, marking the end of the barrel on the dowel and then measuring the result. The bold italics text is for any barrel with a removable device such as a muzzle brake. They are not taken into account when it comes to barrel length. (Page 18 (printed page 6) of the linked to NFA PDF file on the ATF website states “Barrels are measured by inserting a dowel rod into the barrel until the rod stops against the bolt or breech-face. The rod is then marked at the furthermost end of the barrel or permanently attached muzzle device, withdrawn from the barrel, and measured.”
While the Gun Control Act specifies the barrel must be at least 16″ for a rifle, most manufacturers or folks modifying firearms target a length of 16.5″ to avoid an accidental NFA violation. The penalties for violating the NFA are always severe so always go past the minimums.
In case you are wondering about the barrel swap option and why it exists, it’s been the case for quite a while that a pistol can be turned into a rifle. The following is from the ATF’s website:
Assuming that the firearm was originally a pistol, the resulting firearm, with an attached shoulder stock, is not an NFA firearm if it has a barrel of 16 inches or more in length.
Pursuant to ATF Ruling 2011-4, such rifle may later be unassembled and again configured as a pistol. Such configuration would not be considered a “weapon made from a rifle” as defined by 26 U.S.C. § 5845(a)(4).
With this in mind, that a pistol can be turned into a rifle, which is what we want to do, you have two options – permanently attach a muzzle device or replace the barrel. Let’s explore both options.
Option 1: Permanently Attach A Sufficiently Long Muzzle Device to get 16.5″
The Final Rule on braces says that one option to avoid having the braced pistol be considered a NFA controlled short barreled rifle (SBR) is to replace the barrel with one that is at least 16″. Builders in the AK and AR communities have long used permanently attached extended muzzle brakes or barrel extensions to get the barrel to the length they want (Personally, I go for 16.5″ because I like having a safety margin.
You will notice I am using “extension”, “muzzle device” and “extended muzzle device”. They are related but can be different. There is such a thing as barrel extensions that are a steel tube with male threads on one end and female threads on another. Muzzle devices are the broad category for anything that goes on the muzzle end including brakes. Extended brakes are stretched to purposefully take care of the length required while doing something to quell recoil. You can do any of these or combine them but they must be permanently attached so let’s review that
This next part is critical – the extension must be permanently attached and there is long-standing ATF guidance on this. To be considered permanent per the current ATF guidance (page 18 (printed page 6) of the linked ATF NFA PDF document – be sure to read it), a muzzle device must be attached via one of the following three methods:
Welded all the way round the barrel-to-device circumference (attention old-timers, they now use the term “full fusion gas or electric steel-seam welding”. The use of a fusion welding method half way around the circumference or four equidistant welds may no longer be acceptable)
Blind pinned meaning you drill a hole through the brake, part way into the barrel, a pin is inserted and then welded over. This can be done in such a way that it is practically invisible when done.
High temperature (1100F) silver solder – this is brazing solder to be very. This is not low-temp plumbing silver solder. Do NOT use regular solder.
These are the only three approved methods that you can use. Epoxy, rusting, any form of adhesive – they are not acceptable to the ATF and you will be found in violation of the GCA rifle length of 16″ if you use them. Ignorance of the law is not a defense. You must use one of those three for it to be considered permanent.
This is quick, easy and relatively cheap and I used blind bins because I thought the resulting “looks” were cleaner plus it allowed me to attach an aluminum fake can to a steel barrel (you can’t weld dissimilar metals like those two).
In short, there is clear published ATF guidance that says adding a permanent extension works – it’s not a loophole and perfectly acceptable. If you have any concerns, then have a gunsmith do the work.
This is a fake solid aluminum can that looks like a Soviet PBS-1 suppressor. It was blind pinned and welded over to permanently attach it to compensate for the AMD-65’s short 12.5″ original barrel. The fake can was 7.87″ long so I cleared the 16″ minimum by quite a big and it looked cool.
By the way, let’s talk the math needed to get the correct length of extension or muzzle device for just a minute. Measure your barrel with a dowel with the bolt closed. Let’s say it’s 12.5″ and if you want it to be 16.5″ long the difference is 4″. What length extension do you need? This is where you need to know how long the thread of your barrel is and how far it will go into the muzzle device before it stops. If the device will overlap the barrel by 0.5″ then you are right at 16″ not the desired 16.5″. You must factor in that overlap! So, if we want 16.5″ of barrel length – 12.5″ currently = 4″ + 0.5″ overlap then you need a muzzle device that is 4.5″ long. It never hurts to be a tad over in barrel length but you never want to be short. Read about the fitment before you buy is the bottom line. If the muzzle device requires a backing nut / “jam” nut to secure it, that goes into the planning.
Device length = 16.5″ – current length + overlap device and jam nut if used
I would recommend steel muzzle devices if you have the choice. Steel devices stand up to the heat and muzzle blast better than aluminum. If all you can find is aluminum for your application or you want something that looks like a fake can or whatever then go ahead. Steel does get heavy fast so some larger devices intentionally use aluminum to avoid the weight.
You have lots of options – muzzle devices are attached by the thread so to buy one you look at the thread on your barrel (such as 1/2×28 or 14x1LH, etc.), the caliber (5.56, 9mm, 7.62, etc.) and the length you need. You do not need to buy something special for a 5.56/.223 AR for example – you would search 1/2×28, .223 or 5.56, and then the length. There are tons of weapons that use those.
The caliber is really important because you can have far larger calibers using 1/2×28 that will not fit through a smaller .223 brake. 9mm is one example. Also, you may know a caliber but also need to check the thread because the builder may have picked a different thread pattern.
Interestingly enough, there are tons and tons of muzzle devices on eBay (click here for a search I set up) – I think partly because a lot of small machine shops realize they can crank out a brake plus you have tons of people importing them as well.
In all cases, just remember to confirm the threading, caliber and desired length before you go shopping and certainly before you install and test fire the weapon.
Option 2: Replace the barrel – In some cases it is really easy to do
This is the verbatim guidance from the final brace rule. On some weapons platforms, such as the AR, replacing the barrel is very easy. On others, such as the AK, it can be done but it is far more involved and you wind up paying for quite a bit of labor. There are also ones that are far easier than you may think such as bolt action rifles so it pays to do some research and ask around.
On the plus side you may pick up some velocity with the longer barrel and if you get a higher quality barrel, you may even get some accuracy improvements. I have to word it that way because all things being equal, longer barrels have velocity gains but if they are of equivalent quality, length does not improve accuracy … unless you tell me the short barrel can’t stabilize what you are shooting. Sigh … barrels & ballistics will always start an argument. I’m trying to point out that going with a longer barrel is not always doom and gloom with no gains.
In addition to the barrel, don’t forget about overall length either – a rifle must be at least 26″
The ATF defines overall length as “The overall length of a firearm is the distance between the muzzle of the barrel and the rearmost portion of the weapon measured on a line parallel to the axis of the bore.” — per page 2 (printed page 6) of the NFA PDF linked to at the ATF.
The minimum overall length of a rifle is 26″. Now things get squirrely between state and federal governments as to how overall length is measured when it comes to folding stocks. Is it done with the stock deployed and fully extended or when it is closed? You will need to find out which applies to you.
The ATF’s position is to measure the overall length with the stock folded per a 2019 ATF letter obtained and shared by Prince Law. I never was a huge folder fan –my preference are the M4 style collapsing stocks. They tend to have better ergonomics for the cheek weld, flexible length of pull and are considerably longer than a folded “folder” when the M4 stock is compressed usually making the overall length a non-worry.
This AK is using a Magpul ACS stock and even when fully compressed it’s far longer than 26″
So, overall minimum length needs to be at least 26″. End of the day, it’s your decision about how you meet it but you need to plan for it via some combination of barrel length and stock.
(r) It shall be unlawful for any person to assemble from imported parts any semiautomatic rifle or any shotgun which is identical to any rifle or shotgun prohibited from importation under section 925(d)(3) of this chapter as not being particularly suitable for or readily adaptable to sporting purposes except that this subsection shall not apply to-
(1) the assembly of any such rifle or shotgun for sale or distribution by a licensed manufacturer to the United States or any department or agency thereof or to any State or any department, agency, or political subdivision thereof; or
(2) the assembly of any such rifle or shotgun for the purposes of testing or experimentation authorized by the Attorney General.
What follows is my opinion and is not legal guidance – because the 922(r) compliance pertains to the assembling of rifles from foreign parts – it does not apply to domestically manufactured weapons using domestic parts – an AR fully made in the US from US parts is not within the scope of 922(r).
What I would tell you is that the any imported pistols were approved for importation and registered with the ATF as pistols. The receivers to be specific were recorded as pistols and still are pistols. In other words, even with the weapons configured as rifles, the receivers are still registered as pistol receivers with the ATF and thus not subject to 922(r). In the eyes of the ATF, the receiver classification is what matters.
To be perfectly clear, this is my opinion, I am not a lawyer and this is not legal advice. What really matters is what we hear from the ATF as this progresses. Don’t hold your breath though as they may never provide additional guidance on this – the ATF frequently leaves things vague and open for interpretation.
1/21/2023 Update: The Final Rule is such a mess that we all need to act and not let it pass. If you aren’t a member of Gun Owners of America (GOA), I recommend them. This rule has a fatal flaw that will trap gun owners and must not pass.Be sure to watch the following video of an interview with Steven – an attorney with GOA – who was at the SHOT show:
Summary
To meet the 16″ minimum barrel requirements you can replace your barrel with one that is at least 16.5″ long or extend your barrel with a permanently attached muzzle device so it is at least 16.5″ long. Find out which works best for you in terms of costs, looks and performance. Also, be sure to consider your overall length as part of your planning and revise your weapon accordingly.
Where to go for parts?
I’ll just list AK and AR websites – for others you will need to do some searching:
First off – parts and tools overall – check out Brownells.
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Well, on Friday, January 13th, 2023, the ATF decided to post their final ruling on stabilizing braces. Technically, the US Attorney General signed off on ATF final rule 2021R-08F “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces'”. I’ve had a dozen guys asking me for my thoughts on this so I decided to write a post. The post will have two parts – how we got here, the ruling itself and will it get struck down?
Please note that I am not an attorney and this is not legal advise. It is critical that you read the actual final rule and follow itas well as any state or local laws that might apply.
How did we get in this mess?
There are a number of elements that make gun control a complex and thorny matter. For the sake of brevity, I am going to highlight some factors that I think are key to understand:
Political Theater
First off, firearms are part of political theater with politicians and parties trying to push their agenda. Democrats want to ban or at least regulate everything. Republicans splinter and want little to no regulation and then you have the independents. It sounds like three groups but really these groups are made up of different people from different regions with different cultures …. it’s really not possible to lump them all into one category. For example, former presidents Gerald Ford, Jimmy Carter and Ronald Regan supported a ban on “semi-automatic assault guns”. Jeff Brooks, a Democratic Representative tried to remove the assault weapons ban from the crime bill. The US Congress passed a 10 year ban in 1994 and President Bill Clinton signed it into law.
Watching the ping pong back and forth on gun control is very frustrating and at the heart of it I always think to myself “the criminals don’t care about the law and all you are doing is penalizing law abiding citizens”.
Not to mention I still don’t get why people can’t understand the Bill of Rights and the Second Amendment “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” That seems very self-explanatory with strong direct verbs – “shall not be infringed” – yet here we are … again.
What often causes the pressure to enact firearms laws or regulations?
Ok, let’s think about it for a minute – what led to banning braces and a ton of other gun laws? Politicians and bureaucrats are driven by a complex set of factors:
People watching TV and movies and most, if not all, they know about firearms comes from there. TVs and movies rarely show anything remotely resembling reality whether it is firearms that never run out of ammo, shooters with no experience making expert shots, impossible scenarios …. all in the name of viewers and money. These people then form opinions and talk to their representatives.
Popular media and news freaks out every time there is a shooting demonizing the firearms and sensationalizing the fears. Why? They make money of viewers because the larger the audience then the more advertising and subscriber money they get. Again, people talk to their representatives
There is also this desire in some areas of the US to drive risk to zero – to get rid of the boogeyman or the monsters that may lurk in the shadows. Getting rid of risk completely is impossible and the rights of gun owners do not stop where your fears begin. People wanting to commit horrible acts will always find a way whether it is ignoring gun laws and safe zones or move to another weapon.
Politicians are driven by needs for power, money and the support, if not worship, of their supporters because they want to be re-elected. Always remember, there is more money and power to be had from stoking division than there is in solving a problem. In many cases the politicians want an us vs. them scenario they can rally people to and get more money and power.
Heads of Federal and State agencies wanting more money, power and influence contribute to this as well. Playing to fears, politics and thinking of their next step towards more power, fame, salaries or cushy future roles as consultants or lobbyists.
Federal agencies have shifted to being political instruments and are violating their duties. All legislative power rests with the US Congress. The Executive Branch can only issue regulations under the authority of laws enacted by Congress. Article I, Section 1 of the US Constitution states “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” [Click here to read more]
The above is off the top of my head. So, why does what I just wrote matter?
First off, the ATF is making it’s own laws because Congress can’t pass gun control. Individual congress people don’t want to come down on the wrong side of their supporters and not get re-elected or lose funding so there has traditionally been a big stalemate.
The support for gun control ebbs and flows over time plus it really depends on what part of the country you are from – say a big city with a violent crime problem where politicians blame the guns vs the criminals or from rural America who views things very differently.
Speaking of the NFA and GCA
A fun part of history that shows yet more politics and back door agreements are the National Firearms Act of 1934 (NFA) and the Gun Control Act of 1968 (GCA). The NFA went after the “scary” fully automatic weapons plus rifles and shotguns shorter than 26″ and silencers by imposing a then large tax amount of $200 per weapon.
The length provision for short barreled rifles (SBRs) and short barreled shotguns (SBSes) was to try and close a handgun prohibition that was dropped before the NFA was passed. Yes, the SBR and SBS sections are hold-overs when they didn’t want people to cut down rifles or shotguns to make pistols but when the pistol section was dropped, the SBR and SBS sections remained. Guess what the minimum length of the rifle barrels was? 18″ – they set that minimum for both rifles and shotguns as part of the NFA.
Wait, isn’t it 16″ today for rifles and 18″ for shotguns today? What happened? Let’s set the stage -gun control wasn’t going well and then JFK was assassinated and people felt mail order guns should not be allowed. Then, Dr. Martin Luther King was assassinated in April 1968 and then Robert Kennedy was assassinated in June 1968. Enough was enough and the GCA was pushed through Congress. Section 921 (8) defined as short-barreled rifle as one with a barrel less than 16″. What??
My favorite firearm historian is Ian McCollum of Forgotten Weapons. I find his videos and writing to be exceptionally well researched. He reports that the US government sold about 250,000 M1 carbines to the US public with illegally short barrels. Rather than try and enforce it, Congress changed the barrel length.
Oh Yes, the Braces…
As mentioned on Friday 13th, after receiving tons of comments about stabilizing braces and having waffled repeatedly over about whether braces were legal or not, the ATF issued its final rule.
Now let’s put this in context, in their PDF the ATF states they have been evaluating various designs of braces since 2012. A prototype of the cuff–type stabilizing brace that would later become the SB15 was submitted for review on November 8, 2012. On page 20 of the PDF, the ATF shows pictures and describes the scenario.
It’s important to read the pages. They knew what was going on the whole time. In September 2014 a sample was provided of a Blade AR pistol stabilizer. Page after page documents the drama unfolding.
By page 36, the ATF notes that by July 2018, SB Tactical was marketing braces as ATF compliant. The ATF notified SB Tactical on July 18, 2018 that only 2 of their 20 stabilizing braces did not convert a pistol to a SBR. Let me stress that – only two of 20 passed muster. The ATF was of the opinion that18 of the 20 created SBRs. March 3, 2020 they reviewed two firearms – one with the SBL Mini brace and determined it was still a pistol. The other had the SBA3 and determined it was a SBR.
By the time we get to page 40, the authors of the PDF note that on June 16, 2020, seven members of the House of Representatives wrote to the DOJ and ATF leaders expressing deep concern about the creation of arbitrary non-public standards to create policy.
Now let me comment – Folks, ever since the ATF stopped publishing their opinions letters from the technical branch, we knew this lack of public visibility was going to be a problem and it has come home to roost. People should have been freaking out when the ATF stopped publishing their opinions. As a result a lot of their changes to sharing guidance, policies and direction have become opaque meaning we didn’t know what was going on. You need transparency for a government and regulation to work. This seriously needs to get fixed at some point.
We now have a complete debacle. By late 2020, the ATF concluded they had confused people and there was need for clarity. Yeah, no kidding. Bear in mind that eight years had gone by. Could they move quickly to remedy this? No – of course not. I’ll let you read the document to get the rest of the train wreck in motion. The the ATF and lawmakers (or let’s-not-do-anything-lawmakers) created his mess. SBRs are ridiculous in general and people trying to find a work around to enjoy their firearms was, and is, unavoidable.
The political theater that played out for almost 11 years let well over a million people buy firearms with braces that are now going to be considered SBRs with all the restrictions that owning a NFA weapon brings.
Let’s Get Down To The “Final Rule”
Please note that I am not an attorney and this is not legal advise. It is critical that you read the actual final rule and follow itas well as any state or local laws that might apply.
Let me tell you right up front the factoring guidelines and scoring are gone. If your pistol has a brace it will be a SBR once the final rule is published in the Federal Register and assuming some legal intervention doesn’t happen before its publishing. I’d be surprised if a legal action could happen fast enough but with millions and millions of dollars at stake, it might.
The best thing for you to read is the overall Frequently Asked Questions (FAQ) guide – click here to open that PDF. There is a high level quick reference sheet but I think most people will have questions best answered by the overall FAQ. If you need details then dive into the big Final Rule PDF.
They have assembled all of the documentation on one page on the ATF site where you can read the 293 page final ruling. Click here for the main page.
The quick reference guide shows you your main options if the rule goes into effect. In the main PDF, starting on page 270, there are interesting details that are included about removing the brace, that the firearm must be marked, etc. Let me list the options for current unlicensed possessors (normal gun owners in other words) and add in some comments – the numbers correspond with the options in the final rule and not the summary documents:
Replace the short barrel with a barrel that is 16″ or longer plus the overall length must be at least 26″. They don’t mention the overall length in the ruling but keep that in mind as it still applies. By the way, another option is to install a barrel extension if you have a threaded muzzle but it must be permanently attached via welding, high temperature brazing or a blind pin. (1/17/2023 I wrote a blog post with much more guidance on this – click here for it.)
Submit an E-From 1 within 120 days of the rule being published in the Federal Register to make your pistol a SBR. There is no wording about this being an amnesty situation or that you admit you have done something wrong. The ATF will waive the $200 registration tax during this 120 day period. By the way, if it is a personally made firearm (PMF) then you will need to mark the rifle pursuant to ATF regulations. You can keep the brace on the weapon during this period and must keep proof of submission of the E-Form 1. One would assume that if you go this route you will have a legal SBR and can change to a real stock. The negative is that your pistol would then be NFA weapon and subject to the additional rules that apply. By the way, to play it safe, if you decide to go this route then don’t wait until the last minute in case the E-Form website has problems.
Remove the brace and there are some vague comments. Page 271 of the PDF states “Permanently remove and dispose of, or alter, the “stabilizing brace” such that it cannot be reattached, thereby removing the weapon from regulation as a “firearm” under the NFA.” You have 120 days to do this, but they don’t give you any additional guidance or realize the can of worms they just opened.
“Permanently remove the brace” probably seemed simple to the authors of the rule for their purposes but this will create quite a burden for many because not all braces are simply bolted on. AR-style weapons will need pistol buffer tubes installed in order to operate. Other firearms, such as the AK now have a bigger problem – what to do with the no longer needed M4 buffer attachment point. Many AK-style pistols were designed with an adapter block that mounts under the rear AKM trunnion for the M4-style buffer tube. That block needs to be replaced or a stub tube – perhaps with a sling swivel installed in it – there can’t be enough area for shouldering.
There are also AK pistols out there that use a folding rear trunnion like you would see on a “Krinkov” or Galil but with an M4 adapter on it to mount a buffer tube – you could either put in a stub tube or perhaps remove the rear hinge.
The ATF will, no doubt, point back to the old guidance that pistols must not have a means to attach a stock or a SBR is created but at what point of removal or modification is it considered permanent? Can you use a stub tube mounted with a castle nut enough or does it need to be welded or blind pinned in place? If you grind or mill a M4 attachment point away, that would certainly be permanent. I would be pleasantly surprised if they provide this guidance – it is a guessing game because the ATF stopped publishing their letters.
Forfeit the firearm at your local ATF office. Read this “Give up your pistol with a brace that cost you $500-2,500 of your hard earned money.”
Destroy the firearm — this must be done in accordance with ATF and any state or local regulations about how to “destroy” a firearm because otherwise your name is still legally tied to the receiver and serial number should questions come up. Page 271 of the PDF states “ATF will publish information regarding proper destruction on its website, www.atf.gov.“ That tells you they haven’t figured out the details for that yet.
When will this get enacted?
A final rule such as this one must be published in the US Government’s Federal Register and that publishing is typically done in three business days but that is an average not a rule. The Federal Register does not set a deadline once they have a final rule because an agency could pull it because it needs revisions, is no longer needed or wants public comment. For further reference, click here for the rule making process.
Per the ATF, the rule goes into effect 120 days after it is published in the Federal Register.
Will this ruling get struck down, delayed or modified?
Certainly everyone is wondering about this. Given recent rulings with the EPA, the bump stock ban being struck down and even the “common use” SCOTUS opinion of 2008, the odds are very good it will be declared unconstitutional at the very least due to the overreach by the ATF creating law but what is less certain is how soon. We may be stuck with this new ruling for a bit until it is. Let’s take a moment and look at why it might get struck down:
The Supreme Court of the US and EPA Overreach
Now let’s bring up another recent court finding — In June 2022, the Supreme Court of the United States (SCOTUS) found that the Environmental Protection Agency (EPA) had committed an “overreach” and created law vs. Congress (remember, only Congress can pass laws) and so SCOTUS smacked down the EPA (here’s a popular article and click here for the actual SCOTUS finding.)
If this brace, bump stock, forced reset triggers or other items are brought before SCOTUS, odds are they will find that they have violated administrative procedure also. This would nullify these rulings.
Bump Stock Ruling Struck Down – Cargill v. Garland
President Biden made promises that things will happen but how? He can’t get Congress to do their jobs. The answer is executive actions and to push agendas with agencies such as the Department of Justice and the ATF. Just remember – President Trump did the same thing with the Bump-stock ban that has since unraveled. In the case of Cargill v. Garland the ruling in the Fifth Circuit Court of Appeals found that the bump stock ban violated the Administrative Procedure Act because the ATF usurped the powers of Congress – which means they took the place of Congress and they are not allowed to do that. (Click here for the actual court ruling)
Congress passed the National Firearms Act and Gun Control Act wherein they defined a machine gun based on how the trigger functioned. Bump stocks were not part of that law and the ATF was trying to bend things around to their own ends by setting criminal prohibitions. Now this is one district court’s opinion but it sets precedent so expect appeals and more legal and political wrangling.
SCOTUS and Firearms in Common Use
In 2008, SCOTUS found that the Second Amendment protects arms in common use at the time in their ruling on District of Columbia v. Heller. These arms are chosen by society and not the government. [For a good summary of common use, read this article at the NRA].
Firearms with braces are in common use. The ATF’s own Final Rule PDF file identifies there are 3,881 manufacturers producing pistols with braces and 1.4 million firearms owners who have pistols with braces. (See page 283 of the PDF) The number of impacted gun owners varies and some put it well into the 5-10 million range. The Congressional Research Service estimates 10-40 million braces in use so you can see there are a lot of firearms out there with braces. With well over a million legal gun owners would seem to show these are in common use.
By the way, if the ATF really had a huge issue with these in terms of public safety or whatever then they have had ample time to shut them down yet they did not and now tons and tons of them are in use.
1/21/2023 Update: The Final Rule is such a mess that we all need to act and not let it pass. If you aren’t a member of Gun Owners of America (GOA), I recommend them. This rule has a fatal flaw that will trap gun owners and must not pass.Be sure to watch the following video of an interview with Steven – an attorney with GOA – who was at the SHOT show:
Summary
In the continued tradition of penalizing law abiding citizens, politicians and the ATF have put this final rule forth. Once published in the Federal Register, millions of owners of braced firearms will need to decide what they are going to do next. It’s hard to say if a gun rights group or lawsuit can move fast enough to counter this rule. With this in mind, think through your options and decide on what you are going to do.
As it stands of my writing this, you will have 120 days to decide from when it is published in the Federal Register to decide and you better not wait until the last minute either. I’d recommend you watch what happens, figure out what you want to do and then make your move within 60-90 days of the rule publishing – that gives you time to see what happens and some buffer to get things done rather than waiting to the last minute and finding out what you want to do is out of stock, your gunsmith doesn’t have any time, etc.
I wish this hadn’t been set forth but at least there are options. Let’s hope that it gets struck down as unconstitutional before people are forced to decide and act. I’m betting a ton of lawsuits are going to get filed over the next couple of weeks so we will all have to wait and see.
Last comment – sorry for the red “I am not at attorney and this is not legal advice” squares in the text. I have concerns that I want to share but do not want anyone taking what I wrote as absolute guidance when the ATF doesn’t even know the details. A lot of this will come to light over time I hope or else this big mess will get even uglier.
1/21 – while I was writing the follow on blog post about removing the brace, GOA pointed out the extremely flawed logic of the rule and I stopped writing. This bill will be a huge mess. Not only will gun owners with braces spend a lot of money trying to avoid creating a SBR but the whole SBR route is treacherous. Watch the video above. See what your favorite gun rights groups are doing and I very much recommend GOA because they actually get things done and not just suck up all your money with nothing to show for it.
More Reading
Stephen Gutowski is a journalist who tries to be as objective as he can be about firearm laws and regulations. He has a great subscription newsletter called “The Reload” that I highly recommend. He has a piece he authored on 1/13 in response to all of this entitled “ATF Bans Millions of Guns With New Pistol Brace Rule“. He also wrote a very good piece “Bump Stock Ban Struck Down” on January 6th, 2023
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In June 2019, someone as the the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Firearms Technology Industry Services Branch (FTISB), what was the correct way to measure a pistol equipped with a stabilizing brace that has a folding adapter (like my Galil Ace in the photo above).
Please note that I am not an attorney and this is not legal advice. I’m just passing along the ATF letter for people to read and interpret themselves.
I hope this helps you out.
If you find this post useful, please share the link on Facebook, with your friends, etc. Your support is much appreciated and if you have any feedback, please email me at in**@ro*********.com. Please note that for links to other websites, I may be paid via an affiliate program such as Avantlink, Impact, Amazon and eBay.
