Will AR Pistol Stabilizing Braces Be Grandfathered In?

UPDATE: The ATF will “set forth factors considered when evaluating firearms with a attached stabilizing brace to determine whether they are considered firearms under NFA or Gun Control Act to make clear that all weapons under NFA are subject to its heightened regulations” in August 2022, just in time for the midterm elections. Will AR pistol stabilizing braces be grandfathered in, or will millions of Americans be declared felons?

We last published our take on the ATF’s proposed rule to regulate the use of pistol stabilizing braces back on June 8, when the ATF first made the rule available for comment. Since then, much has transpired. Here we’re offering an update of both the information surrounding the proposed rule as well as our renewed take on the whole situation.

Status of the ATF Proposed Rule to Regulate the Pistol Stabilizing Brace

As of this writing, July 14, you have submitted 118,492 comments in response to this proposed rule. I’ve read in several places that this proposed rule is “the most commented” proposed rule in ATF history. I can’t verify that claim, but 118,000 is a lot, and there’s still time. The commenting window closes on September 08, 2021. You can (and should!) respectfully submit your comment here.

That’s the official status of the proposed rule; however, a lot of other stuff has happened since the proposed rule was published for comment.

Opposition to the ATF Proposed Rule for ‘Factoring Criteria for Firearms with Attached “Stabilizing Braces”’

On July 1, a group of Republican Senators sent a letter to the ATF demanding that the agency withdraw the proposed rule. The crux of their argument is that the rule, if implemented, would “turn millions of law-abiding Americans into criminals overnight, and would constitute the largest executive branch-imposed gun registration and confiscation scheme in American history.”

That vague number – “millions of law-abiding Americans” – is all over the board. How many Americans actually own a pistol stabilizing brace that would come under this regulation? That’s the core of my personal argument against this regulation. We don’t know how many. The ATF doesn’t know how many. The ATF cannot – by law – know how many people own such firearms. I’ll get to more on that topic later in this article. That said, the number of owners of such firearms is definitely in the millions, but nobody knows how many it actually is. And trust me: that’s good news.

Is the Rule Already Unconstitutional?

Those of us who support the 2nd Amendment to the Constitution in its original form can easily answer that question with an unqualified “YES! It’s unconstitutional!” That’s literally the opposite of “shall not be infringed.” But since our government doesn’t agree, let’s take a look at the ruling that a Federal Court made just a couple of days before the ATF published this rule. On June 4, a Federal Judge in California’s Southern District ruled that California’s ban on “assault weapons”, which had been in place for more than 30 years, is unconstitutional.  Why is that pertinent here? That’s also good news. The judge’s ruling (I’m paraphrasing here) said that putting accessories like handles, grips, lights, etc., doesn’t make a gun more lethal than the same gun without those accessories.

A short digression: the California statute actually, specifically notes that an AR-15 cannot have a grenade launcher. Let’s just forget for a minute that civilians haven’t been able to buy grenades since 1968, but those crazy California lawmakers had to make sure that nobody put a launcher on the end of their AR-15.

Anyway, the pistol stabilizing brace is exactly what the judge was referring to when he called out certain accessories that do not make a weapon more lethal than the same weapon without those accessories.

The ATF / DOJ Defend the Proposed Rule

The arguments put forth by the ATF/DOJ are subjective at best. From a statement released by the ATF: “The National Firearms Act (NFA) imposes heightened regulations on short-barreled rifles because they are easily concealable, can cause great damage, and are more likely to be used to commit crimes. But companies now sell accessories that make it easy for people to convert pistols into these more dangerous weapons without going through the statute’s background check and registration requirements,” the DOJ said.

Let’s break that statement down. First, I challenge anyone to find a short barreled rifle that is “easily concealable“. Second, of course they can “cause great damage”! So can a long barreled rifle, a large caliber pistol, a shotgun…you get my point. Third, where’s the data that SBRs are “more likely to be used to commit crimes”? There is no such data. Doesn’t exist. Next, “more dangerous weapons”? Literally less than a week before the ATF published this proposed rule, a Federal Judge had declared that accessories like this do NOT make a weapon “more dangerous”. And, finally, and this is the kicker to the whole thing: “without going the the statute’s background check and registration requirements.”

In other words, just like I stated in the previous article on this subject: it’s a “weapon of war” until you add your name to a government list and pay the $200. Then it’s A-OK.

More Details about the ATF’s Proposed Rule

According to Guns.com, “there is no grandfathering allowed under the rule – even for guns lawfully purchased with braces pre-installed by the manufacturer – owners of such newly-defined SBRs would have to:

• turn the braced pistol over to Uncle Sam
• permanently remove or alter the brace so that it cannot be reattached
• remove the short barrel from the firearm and install one at least 16-inches in length
• destroy the firearm, or
• submit a Form 1 and $200 to convert it to a legal, registered, SBR.”

Note that last option. That (in my humble opinion) is where this rule is going: taxation and registration. Taxation puts a barrier (infringement) upon the taxpayer in the way of purchasing certain firearms. Registration is even more sinister: it literally puts your name on a government list. Even if it’s all above board and legal, the Federal Agency charged with “regulating” guns now has your name as someone who has, or did purchase, a pistol stabilizing brace that they now recognize as a “more dangerous firearm”. The Government can now use that list at their discretion.

Some Firearms Manufacturers Taking Action

Other than a few Republicans writing a letter and a hundred thousand people commenting on the proposed rule, I don’t see anything going in our favor at this point. And it gets worse.

Daniel Defense and JP Rifles have both said that they will cease production of their popular AR pistols in September. Not sure how to take that move. I’m sure there are other gun manufacturers taking a similar precaution, or at least that’s what I hope it is. I can see two methods behind that madness.

• Daniel & JP are hedging their bets by not producing products that may be turned into NFA items. If the ATF does not implement the rule, they can just restart production, and not have thousands of these units on hand indefinitely. In other words, it’s an inventory control move.
• Daniel & JP (and others) know something we don’t, which is that AR Pistols outfitted with a pistol stabilizing brace are absolutely going to be NFA items.

I don’t like either of these options.

The Real Issue: Enforcement

The most basic point of the ATF’s proposed regulation is to determine whether the firearm is “intended to be fired from the shoulder.” In other words, the ATF is regulating your intent for a product that you purchased legally under the law and the constitution. That, in and of itself, is (again, my opinion) completely unenforceable. But there’s more.

Whatever the number of actual owners of pistols with braces on them is, nobody knows who they are, except perhaps in NY and California. I say that partially in jest, because those states do have gun registration systems. In Georgia, it’s still none of the government’s business what kind or quantity of guns you purchase. You may have 37 AR Pistols with Stabilizing Braces on them, but by law, the government can not know that.

Questions About Enforcement of the Proposed Rule

• What happens if (or when) the ATF implements this regulation, and millions of law-abiding citizens are no longer abiding by the law?
• How will the ATF, DOJ, and FBI have the knowledge of who owns a pistol stabilizing brace?
• What will happen when local police interact with a law-abiding citizen who happens to have a firearm that violates this ATF rule?
• Will the LEO know that someone is violating the rule?
• What will the violation be?
• Is it a felony to simply own – and not use – a pistol stabilizing brace?
• What if I by an AR pistol and a stabilizing brace in separate boxes or separate transactions? Is the very presence of both items considered in violation of this proposed rule?
• What if you bought it in 2019 and literally never took it out of the box?
• Is the manufacturer now the felon?
• Would the ATF prosecute all manufacturers of such firearms for making what is now illegal?
• Will the government hold shooting ranges responsible when a patron uses one of these firearms at the range?
• Would the ATF expect ranges to report the use of a pistol stabilizing brace in use at their facility?

The ATF Cannot Enforce the Proposed Rule on Pistol Stabilizing Braces

Bottom line: how will the ATF enforce this rule? My take? They cannot enforce it. Once the ATF comes to this realization, they will – or should – drop the proposed rule.

In the meantime, while we comment and wait for all the comments to be reviewed, there is about to be shortage of Daniel Defense, JP, and other AR pistols.

Smoke ’em if you got ’em.