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 it as 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:
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 it as 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:
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.
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
Ammoland’s John Crump has a good quick overview entitled “ATF Unveils Pistol Brace Rule … Everything Is An SBR!” dated January 13, 2023.
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