We knew it was coming. It got delayed. It got changed. Last week, it got published. Finally, after over a year of mystery and rumor, the ATF has published its pistol brace “rule” for public consumption. So, now what? Well, there’s a lot to say and a lot to learn, and we’re going to try to boil it down to a few pieces of clarity for you.
UPDATE 23JAN2023: “It’s a Trap“. At Shot Show last week, Guns & Gadgets revealed a fatal flaw in the new ATF Pistol Brace Rule. Short version: the ATF does the background checks for NFA items, and if the background check remains open for 88 days or longer, it’s an automatic denial. If millions of pistol brace owners choose to comply and register their new “SBR”, there is not a chance of any Form 1 getting approved within 88 days. Add to that, you’ve submitted photo evidence that you own an AR/AK pistol with a brace, hence an SBR, and now you’ve submitted to the government photographic evidence that you are a felon. And, what happens when you’re denied? The ATF will “take an enforcement action” against you. So, watch the video here: it’s a trap.
What’s the Pistol Brace “Rule”?
In short, the rule changes the definition of “rifle” as currently provided by the National Firearms Act (NFA) so that AR pistols with stabilizing braces attached are to be considered short barreled rifles (SBR). For example, a friend of mine owns a Daniel Defense DDM4 PDW 300BLK. This firearm, last week, was considered simply a pistol, due to its barrel length of less than 16″. Today, if the stabilizing brace remains attached, this firearm is now considered a short barreled rifle. That means that, in order to not be a felon, my friend has to complete an ATF Form 1 and register this firearm with the ATF.
That’s the gist of it. There are many, many, many more details, but you get the picture. Our friends at The Armed Scholar and Guns & Gadgets have done a fantastic job here, here, and here breaking down this “rule” and what it means for owners of such firearms today.
Is this “Rule” Unconstitutional?
I firmly believe so, yes, but I am not a constitutional attorney. That said, some recent cases point to a very quick dismissal of the pistol brace “rule” by the courts, if not the Supreme Court. In my humble opinion, it shouldn’t even get to SCOTUS, and recent laws and court decisions point towards a better defense of the 2nd Amendment.
In the 2022 SCOTUS decision in WV vs. EPA, the Supreme Court ruled that (I paraphrase) federal agencies cannot create law, but can only enforce it.
Earlier in 2022, after 32 years, the State of California’s “assault weapons ban” was overturned in Federal Court. On June 4, Judge Roger T. Benitez of U.S. District Court for the Southern District of California said in a decision that the state law defining assault weapons and restricting their use was unconstitutional.
“Like the Swiss Army knife, the popular AR-15 rifle is a perfect combination of home defense weapon and homeland defense equipment,” Judge Benitez wrote in the first line of a 94-page decision.
Remember the Bump Stock Ban? Trump pushed that through in reaction to the Vegas murders, but that “rule” got overturned as well. Why? Because, just like Judge Benitez pointed out, the features of a firearm do not make it more or less lethal. Bump Stocks are no different than “pistol grips, flash hiders, telescoping stocks, flare launchers or barrel shrouds”, which Judge Benitez referenced as the criteria for California’s “assault weapon” identification.
Finally, in Bruen, Justice Thomas, writing for the Majority opinion, threw out the “two-step” process of determining the constitutionality of gun laws. That two step process consisted of (1) a test rooted in the Second Amendment’s text, as informed by history; and (2) whether a gun safety law could be justified by a state or local government based on how it served the public interest. Justice Thomas did away with that approach: “The Court rejects that two-part approach as having one step too many,” Thomas wrote. Instead, the state imposing the gun control law must show that the legislation is “consistent with the Nation’s historical tradition of firearm regulation.”
What Are My Options?
That’s what everyone wants to know. ATF has provided this quick reference sheet to provide these options if you own a firearm that may be subject to the pistol brace “rule”. The short answer is modify your firearm, register your firearm, turn in your firearm to the ATF, or destroy your firearm. If you’re ready to comply, here’s how to complete the ATF Form 1 to register your firearm. You have 120 days to do so without having to pay the $200 tax stamp fee.
My Opinion of the Pistol Brace “Rule”
Remember, I am not a lawyer. This is just my opinion, and it’s not so different from anything you’ve read or heard about this subject before.
The pistol brace “rule” is unconstitutional for two reasons. First, the ATF does not have the authority to make or change law. Second, the rule as enforced creates a de facto firearms registry, by forcing firearm owners to register or be considered guilty of a felony, even though when they bought the firearm, it was legal.
The “rule” is unenforceable. Estimates range for 10 million to 40 million pistol stabilizing braces sold over the last decade. Since a pistol stabilizing brace is just an accessory, no different than an optic, magazine, or sling, there’s no record anywhere of who bought what. And since when a stabilizing brace is sold attached to an AR pistol, the ATF legally has no access to the records of who purchased that firearm, all these now felons are unknown. In other words, how can the ATF begin to enforce such a rule? Will they go to ranges and hang out waiting for people to use their firearms, and then check the barrel length and brace attachment?
The pistol brace “rule” cannot be applied. In order not to be considered a felon, somewhere between 10 million and 40 million Americans will have to complete a Form 1. That’s not a huge deal – maybe 3-4 hours out of your day for each firearm – since lots of people regularly complete a Form 1 for an actual SBR, and they get their approval in a few weeks. But what happens when 20 million people complete a Form 1? I’ll tell you what happens: the ATF’s system breaks. Nobody will ever get their Form 1 approval, and thus everyone will be a felon.
So What Should We Do?
Wait. Once the “rule” is officially published (the recent publication was just “showing” it to the public) on the record, you have 120 days to file your Form 1 and not pay the $200 tax stamp fee. You can still do the Form 1 after the 120 days, but it’ll cost you $200.
In the meantime, dozens of lawsuits are already in motion from dozens of 2A advocacy groups like GA2A, GOA, SAF, NSSF, NRA, and others. Our court system moves relatively slow, but with this level of attention, it will move slightly faster, and be argued up the courts pretty quickly.
If my (non legal) opinion is accurate, a rational constitutional Judge will slap this one down really quickly simply because it is in direct violation of WV v. EPA and Bruen.
Wait. Wait for the courts. At most, it’ll cost you $200. Be patient and let this one play out.