UPDATED: Jan. 15, 2023: A few days before the 2023 SHOT Show kicks off, a long-awaited and dreaded ATF pistol brace rule has been formally announced. It will have some gunmakers rethinking their booth displays at SHOT and U.S. gun owners scrambling to stay on the right side of the law with the feds.
The rule was announced in a somewhat cryptic statement from the Justice Department on Jan. 13, 2023. It says that if an individual, manufacturer, or retailer puts a brace on a firearm that was not designed as a pistol and has a barrel under 16 inches long, it is now considered a short-barreled rifle (SBR) under the National Firearms Act of 1934 (NFA). That means to legally remain in that configuration, it would require a tax stamp and registration with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
In the announcement, Attorney General Merrick Garland explained that the concern addressed by the rule was that braces were being used to circumvent the NFA. There’s no way of knowing how many braces are in circulation, but it’s in the millions — even the ATF estimates 7 million braces exist, but according to the Congressional Research Service, that number could be anywhere between 10 and 40 million
“Today’s rule makes clear that firearm manufacturers, dealers, and individuals cannot evade these important public safety protections simply by adding accessories to pistols that transform them into short-barreled rifles,” Garland said.
The announcement states:
“Today, the Department of Justice announced it has submitted to the Federal Register the ‘Stabilizing Braces’ Final Rule, which makes clear that when manufacturers, dealers, and individuals use stabilizing braces to convert pistols into rifles with a barrel of less than 16 inches, commonly referred to as a short-barreled rifles, they must comply with the laws that regulate those rifles, including the National Firearms Act (NFA). In April 2021, at an event with President Biden, the Attorney General directed the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) to address the issue of stabilizing braces.”
According to the announcement, the rule goes into effect on the date of publication in the Federal Register and allows a 120-day period for manufacturers, dealers, and individuals to register any existing NFA short-barreled rifles covered by the rule. The normal SBR tax will be waived.
If anyone doesn’t want to register, the ATF says they can remove the brace “to return the firearm to a pistol,” or they can surrender the gun to the ATF.
Guns Impacted by New ATF Pistol Brace Rule
The ATF’s statement would appear to mean that all pistols with braces are now SBRs, because who has a pistol with a barrel longer than 16 inches? But at the end of the announcement, the feds say, “Nothing in this rule bans stabilizing braces or the use of stabilizing braces on pistols,” yet it remains unclear on what pistols a brace would be legal.
Along with the announcement, the ATF posted a webpage explaining the rule and issued instructions on how to comply. The webpage also includes two lists of braced firearms that the ATF now considers to be SBRs, with models like the Ruger AR-556 with a short barrel and an SBA3 brace attached and the Q Honey Badger with an HBPDW brace mentioned specifically, among others.
At first glance, it may not be immediately obvious what all the firearms on the lists have in common. However, the now-shelved ATF Worksheet 4999 may provide some insight; that’s what the new brace scorecard is based on.
The ATF’s new rule, which clocks in at nearly 300 pages and is the exact opposite of clear and straight-forward, states the following regarding the criteria for judging what is and isn’t an SBR:
“Accordingly, the Department amends the definition of “rifle” under 27 CFR 478.11 and 479.11 to expressly state that the term “designed or redesigned, made or remade, and intended to be fired from the shoulder” includes a weapon that is equipped with an accessory, component, or other rearward attachment (e.g., a “stabilizing brace”) that provides surface area that allows the weapon to be fired from the shoulder, provided other factors, as listed in the amended regulations and described in this preamble, indicate that the weapon is designed, made, and intended to be fired from the shoulder. The other factors are:
- whether the weapon has a weight or length consistent with the weight or length of similarly designed rifles;
- whether the weapon has a length of pull, measured from the center of the trigger to the center of the shoulder stock or other rearward accessory, component or attachment (including an adjustable or telescoping attachment with the ability to lock into various positions along a buffer tube, receiver extension, or other attachment method), that is consistent with similarly designed rifles;
- whether the weapon is equipped with sights or a scope with eye relief that require the weapon to be fired from the shoulder in order to be used as designed;
- whether the surface area that allows the weapon to be fired from the shoulder is created by a buffer tube, receiver extension, or any other accessory, component, or other rearward attachment that is necessary for the cycle of operations;
- the manufacturer’s direct and indirect marketing and promotional materials indicating the intended use of the weapon; and
- information demonstrating the likely use of the weapon in the general community.
“All of the objective design features and factors listed in the rule that indicate the weapon is designed, made, and intended to be fired from the shoulder are derived from the NPRM and proposed Worksheet 4999.”
It also states that the “NPRM also included the proposed Worksheet 4999, which assigned points to various criteria and provided examples of how the Worksheet 4999 would be used to evaluate firearms equipped with certain models of ‘stabilizing braces.’”
“The proposed Worksheet 4999 assigned point values for the objective design
characteristics or features that are common to rifles, features associated with shoulder
stocks, and features limiting the ability to use the “stabilizing brace” as an actual “brace.”
These point values ranged from 0 to 4 points based upon the degree of the indicator,
explained as follows:
- 1 point: Minor Indicator (the weapon could be fired from the shoulder)
- 2 points: Moderate Indicator (the weapon may be designed and intended to be fired from the shoulder)
- 3 points: Strong Indicator (the weapon is likely designed and intended to be fired from the shoulder)
- 4 points: Decisive Indicator (the weapon is designed and intended to be fired from the shoulder)
The point values associated with particular features or designs were based upon
their relative importance in classifying the firearm under Federal law. Therefore, more
points were assigned to design features that more strongly indicated the manufacturer or
maker’s intent was to produce a shoulder-fired weapon.”
“This administration continues to find new ways to attack gun owners, and this time their target is brace-equipped firearms that allow persons with disabilities to safely and effectively use pistols,” said Erich Pratt, Gun Owners of America senior vice president, in a statement. He went on to say GOA is busy writing up a suit against the ban. “We will continue to work with our industry partners to amplify the disapproving voices in the firearms industry, and the Gun Owners Foundation, our sister legal arm, will be filing suit in the near future.”
“The Second Amendment Foundation already has a lawsuit filed against ATF over arm braces and will amend it to include their new attack,” Alan Gottlieb, founder of the Second Amendment Foundation, told The Reload, and said they will update their active case against the agency over its handling of braces.
Background on Braces
The original pistol brace design made by the Florida-based company SB Tactical was a U-shaped attachment with a strap that affixed to a shooter’s forearm so a firearm, such as an AR pistol, could be fired one-handed with reasonable control. The company billed it as a product meant to aid disabled shooters.
The problem, however, was that the brace also fit like a buttstock, so people began affixing them to their AR pistols — which allowed them to remain pistols per the NFA since braces are not stocks — and shouldering them. It led to confusion and concern among gun owners that affixing a brace to an AR pistol effectively created an SBR, which would be a felony.
That confusion led to several inquiries submitted to the ATF to explore the question: Does attaching a stabilizing brace to a pistol change its classification?
Since 2012, the ATF has issued contradictory responses to that question. And then, in 2018, a stabilizing brace owner was charged with unlawful possession of an unregistered SBR, but a jury found him not guilty, partly because of a technical error by the ATF.
According to an April 2021 Congressional report, the case was “an example of how the absence of definitive determinations about the legality of firearms equipped with stabilizing braces and similar devices may create repercussions.”
CORRECTION: This version of the story corrects an earlier version that stated the new ATF pistol brace ban uses ATF Worksheet 4999. The new ATF criteria for legal braces and the scorecard to determine such are heavily based on Worksheet 4999, which will not be used.