Like many law abiding citizens and FFL firearms dealers, we have questions about the ATF’s new rule about pistol braced firearms. After a recent FFL training webinar that the ATF conducted, we asked the ATF our questions about the new “Pistol Brace Rule”. You can do the same by emailing FIPB@atf.gov. The ATF responded in 6 days. Here’s what we learned in our ATF Q&A.
ATF Q&A 1: The 120 Day “Amnesty Period”
Here’s the first thing we asked in our ATF Q&A:
- Question: After May 31, 2023, if an individual has not registered a pistol that has a brace, can that individual still register the firearm and pay the $200 tax? I get it that before May 31, it’s free, but what about after May 31?
- Answer: No, they would be in possession of an unregistered SBR.
So, this answer means that, if you do not register your pistol equipped with a brace by May 31, that’s it. You don’t get to register it after that and pay the $200 for your tax stamp. As of June 1, 2023, if you don’t comply, you’re a felon.
ATF Q&A 2: How Will the ATF Enforce the Rule
Secondly, our ATF Q&A moved on to enforcement of this rule. We asked specifically…
“Since there are no records of pistols sold with braces, what is the method of enforcement by the ATF among the individuals who own these firearms? In other words, how can the ATF possibly know if any individual owns an AR pistol with a stabilizing brace?
The ATF’s exact response to this question of enforceability was the following: The unlawful possession of an unregistered SBR is punishable by up to 10 years’ imprisonment or $10,000 in fines, or both. (26 U.S.C. 5861(d), 5871).
That’s the penalty. I didn’t ask about the penalty. The penalty is not how any law is enforced. A penalty is the end result, and should – SHOULD – serve as the deterrent to committing the crime in question. The ATF did not answer the question, so I asked again.
How will law enforcement (and/or the ATF itself) discover that an individual is in possession of an unregistered SBR?
I got a similarly vague response: “The enforcement would be the same as any individual who is in possession of an unregistered SBR.”
The ATF has no “method of enforcement”, meaning they have no means by which they can or will discover if you own a pistol with a brace. The ATF is declaring such guns to be SBRs and therefore subject to the NFA, making citizens who purchased these types of firearms legally into felons, and creating a de facto firearm registry.
Our recommendation remains: WAIT
After the webinar and our ATF Q&A, our information is updated, but our position is unchanged.
It is our belief that this Agency-created rule will not stand the test of constitutionality. But we do not know how long that test will take, nor how long it might take for Congress to put a stop to this unconstitutional overreach.
Why do we believe this “rule” is unconstitutional? Here’s the short version.
1. It’s unenforceable. The ATF has no idea who owns these firearms nor how many there are in circulation.
2. In the 2022 SCOTUS case WV v. EPA, SCOTUS declared that “The agency instead must point to ‘clear congressional authorization’ for the power it claims.” The same applies to the ATF: the agency does not have the authority to create new law.
3. Similarly, the ATF, in it’s “amnesty period” is waiving a Federal tax by “allowing” firearm owners to register their firearms without paying the $200 tax stamp fee. The ATF does not have the authority to do so.
4. For the same reason that Judge Benitez overturned California’s “assault weapons” ban after 32 years, a brace does not make a weapon more lethal, any more than a certain grip or optic does.
5. Finally, last year’s BRUEN case at SCOTUS declared that any new law regulating firearms must be “consistent with the Nation’s historical tradition of firearm regulation”.
Wait.