This week, 26 states teamed with gun groups to stop the federal government from enforcing a new rule that allows the ATF to regulate braced pistols as short-barreled rifles.
In two separate lawsuits, the groups argue the decision exceeded the ATF’s authority and that it was an attempt by the Biden administration to bypass Congress and force gun owners to register their firearms.
“This rule is dangerous and unconstitutional, and I’m hopeful that this lawsuit will ensure that it is never allowed to take effect,” said Texas Attorney General Ken Paxton, who represents the Lone Star State in one of the lawsuits, in a statement.
The Washington-based Gun Owners of America joins Paxton as a plaintiff. Together, they argue the ATF made a “haphazard decision” to reclassify braced pistols as SBRs, which are heavily regulated under federal law.
Plaintiffs in the other lawsuit include the Washington-based Firearms Regulatory Accountability Coalition, 25 Republican-led states, brace maker SB Tactical, and others. It’s also receiving support from the National Rifle Association.
“The NRA believes this rule will fail for the same reasons the bump stock rule failed — ATF can only apply federal statutes; it can’t rewrite them.”
Jason Ouimet, NRA-ILA executive director
In a statement, the NRA’s head lobbyist, Jason Ouimet, said the gun lobby believes the federal courts will overturn the new rule much like they did last month with a different ATF ruling.
“The NRA believes this rule will fail for the same reasons the bump stock rule failed — ATF can only apply federal statutes; it can’t rewrite them,” Ouimet said.
In January, a federal appellate court reversed the ATF’s decision to regulate bump stocks — a device used to mimic machine gun fire when attached to a rifle. The court ruled the regulatory effort was “administrative fiat” and did not align with the administrative procedure.
When the ATF issued the bump stock rule in 2017, it did it at the order of then-President Trump, who responded to a shooting in which a gunman used the device to kill 60 people and injure hundreds more. Back then, gun groups like the NRA and the National Shooting Sports Foundation supported the decision, saying the ATF had the authority to ban the item and Congress did not have to rewrite the law.
According to the new stabilizing rule, brace owners have until May 31 to register their braced pistols as SBRs or remove the brace from their pistols entirely. In short, braced pistols are being regulated, not stabilizing braces.
The ATF published the rule on Jan. 31, setting off a 120-day countdown on the impending pistol brace ban. The Biden administration made the decision to regulate the item in 2021 after a gunman used a firearm equipped with the device to kill 10 people.
Before the incident, the ATF had issued multiple classification letters, saying the stabilizing brace would not qualify as an SBR if it were used as intended. The creators say the device is meant to go around a user’s forearm for one-handed shooting. However, the ATF later argued that manufacturers modified and marketed braced pistols as SBRs.
THE FOLLOWING WAS PUBLISHED FEB. 2, 2023
Fight is on to Kill the ATF’s Impending Pistol Brace Ban
Within two days of the ATF publishing the new pistol brace rule, gun rights advocates filed multiple lawsuits and legislation in a last-ditch effort to stop the regulation from going into effect after 120 days.
While one called it “bureaucratic diktat” and another called it “administrative fiat,” all the opposing parties argued the ATF overstepped its authority by reclassifying braced pistols as short-barreled rifles (SBRs), items heavily regulated under federal law.
In statements, the parties also argued that stabilizing braces were created to help “disabled veterans” shoot pistols more efficiently, that federal agencies cannot write laws, and that the impending pistol brace ban infringes on gun rights. Just about the only difference is the people involved.
The Lawsuits
In one lawsuit, a lone plaintiff, Blake Watterson, claims that he is “injured by the final rule” because he owns a stabilizing brace. With the new rule, he will have to either register it or detach it from his pistol. The Texas Public Policy Foundation filed the case in a federal court in Sherman, Texas.
In a second case, plaintiffs Wiliam Mock and Christopher Lewis both own braced pistols and had planned to buy more. The Firearms Policy Coalition filed the lawsuit in the northern district of Texas.
In a third case, the plaintiffs include four Florida men and a gun store. Josiah Colon, Brandon Kling, and Eric Mele all own and travel with braced pistols, while Wiliam Martin and his store, 2nd Amendment Armory, sell braced handguns. They filed their case in a Tampa federal court.
And the last case, filed in a federal court in Amarillo, Texas, is the only one with a plaintiff with a physical impairment. According to the complaint, Gabriel Tauscher was shot 15 times in 2021, needed multiple surgeries to save his life, and still has three bullets inside his body. He uses a pistol brace because “it makes the firearm more accurate and therefore safer.”
While Tauscher and two others — Darren Britto and Shawn Kroll — are all military veterans, Tauscher was reportedly shot in Minneapolis after a domestic dispute with his girlfriend’s ex-boyfriend. The Wisconsin Institute for Law & Liberty represents them.
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“I have a lot of disabled veterans in my district who enjoy pistol shooting and rely on stabilizing braces to be able to engage in the activity.”
— U.S. Rep. Matt Gaetz (R-FL)
The Legislation
As for the legislation, three Republicans — Georgia Rep. Andrew Clyde, Louisiana Sen. John Kennedy, and Kansas Sen. Roger Marshall — re-introduced the Stop Harassing Owners of Rifles Today (SHORT) Act. The measure would remove SBRs, short-barreled shotguns, and Any Other Weapons from the National Firearms Act, which allows the federal government to regulate those items. They introduced an identical bill last year, but it never advanced.
In mid-January, after the Justice Department announced the ATF would publish the rule, Florida Rep. Matt Gaetz introduced the “Abolish the ATF Act.” As the name implies, the bill would eliminate the ATF. In an interview with Fox News, Gaetz explained he filed the legislation in response to the rule.
“I have a lot of disabled veterans in my district who enjoy pistol shooting and rely on stabilizing braces to be able to engage in the activity,” he said.
Background
As a federal agency, the ATF enforces federal gun laws, primarily the NFA and the Gun Control Act. Ahead of publishing the rule, the ATF has issued guidelines instructing braced pistol owners, dealers, and government entities about their options. They have until May 31, 2023, to either register the firearm as an SBR or remove the brace from the pistol.
During a Q&A with federally licensed dealers, ATF officials explained that the rule does not explicitly outlaw stabilizing braces but requires braced pistols to be registered. They said the items can still be sold as gun parts after Jan. 31 and affixed to rifles. However, the NFA does not make exceptions for people with disabilities. “If it is configured as an NFA firearm, it must be registered,” they said.
Stabilizing braces, or pistol braces, have been the subject of regulatory scrutiny since they were introduced circa 2012. Although the ATF initially said their application did not reclassify a pistol, the agency issued contradictory rulings when asked about shouldering the device. The ATF said many resolved that it was permitted, and brace makers started advertising stabilizing braces as shoulder-able.
The ATF proposed the rule change in June 2021 at the direction of President Biden. He said he wanted to address the “epidemic of gun violence” and targeted braced pistols because a gunman used one to murder 10 people and injure one more at a grocery store in Boulder, Colorado, in March 2021.
Following the administrative procedure, the ATF’s proposal was subjected to a 90-day public commenting period, which generated more than 270,000 comments. And then the ATF published the rule, setting off a 120-day countdown before it could be implemented.
Check the ATF’s website for more information on the stabilizing brace rule. The deadline for compliance is May 31, 2023.
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THE FOLLOWING WAS PUBLISHED JAN. 31, 2023:
How to Comply with the New Pistol Brace Rule, According to the ATF
This week, the ATF held multiple informational sessions with federal firearms licensed dealers to discuss the impending pistol brace ban set to go into effect on May 31, 2023.
According to the rule, individuals, dealers, and government entities who are in possession of a braced pistol have 120 days from Jan. 31 to comply with one of five options:
- Replacing the pistol barrel with a 16-inch (or longer) rifle barrel.
- Removing and altering the brace so it cannot be reattached.
- Forfeiting the braced pistol to their local ATF office.
- Destroying their braced pistol completely.
- Registering the braced pistol as a short-barreled rifle (SBR).
During the virtual meetings, ATF officials gave a PowerPoint presentation and answered questions. Free Range American attended on Jan. 31 and here is what we learned.
You can Still Buy Stabilizing Braces
One of the main points of the discussion was that gun stores can still sell stabilizing braces, but if you want a braced pistol, you have to register it as an SBR.
Also, gun stores cannot sell a pistol and stabilizing brace in one transaction. It would be considered “constructive possession,” a legal term used to describe a situation in which an individual has the physical means to accomplish an intended goal. In this case, they’re buying the parts to create an SBR.
In short, a stabilizing brace can still be sold on its own as a gun part.
You Don’t have to Destroy Your Brace
The option “destroy the firearm” and “alter” caused some confusion. ATF officials said if you don’t want to register your braced pistol, you don’t have to destroy your brace. After you detach it, you can keep it or affix it to a rifle-length firearm.
Where the topic gets a little grey is if you remove the brace from a pistol and then store them together like, say, in a dresser drawer. The ATF officials explained that could be considered constructive possession because the means to create an SBR are together.
However, they did acknowledge that some states like California or Connecticut have their own laws regulating stabilizing braces, so you should comply with the state law. If you live in a state prohibiting stabilizing braces and attempt to register as an SBR, the ATF will deny it.
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“The (National Firearms Act) doesn’t have any exceptions for use of a stabilizing brace for a disability. If it is configured as an NFA firearm, it must be registered.”
an ATF official meeting with FFLs
The Rule Only Affects Those with Braced Pistols as of Jan. 31, 2023
ATF officials said if you possessed a braced pistol before Jan. 31, 2023, you must follow one of the five options listed in the guidelines within 120 days before the deadline.
You’re shit out of luck if your braced pistol is en route or sitting at a gun store waiting for you to pick it up. You’re also screwed if you transferred a braced pistol to someone else or an FFL. The most likely instance is if you pawned it and intended to buy it back. If you’re in that boat, you have to go through the standard process for obtaining an SBR.
There are No Exceptions for Disabled People
The inventor of the stabilizing brace initially said the device was meant to help disabled shooters manage a pistol one-handed. For all intents and purposes, they still can if they register it as an SBR or attach the brace to a rifle-length firearm.
The ATF officials explained: “The (National Firearms Act) doesn’t have any exceptions for use of a stabilizing brace for a disability. If it is configured as an NFA firearm, it must be registered.”
The NFA is the federal law that regulates SBRs as well as machine guns, silencers, and items classified as Any Other Weapons.
Buffer Tubes won’t be Affected
A common question that came up was whether or not an AR pistol with a padded buffer tube would be regulated by the new rule. The ATF said it won’t be if the buffer tube is needed to cycle the action. In other words, if the gun can function without a buffer tube, don’t attach a buffer tube.
Most Braced Shotguns are a No-Go
During the meeting, ATF officials explained that the final rule only redefines “rifle” and that the options for the next 120 days only apply to braced pistols. Additionally, the ATF rescinded any classification letter regarding arm braces, which affects many of the smoothbore weapons equipped with a brace.
“We specifically refer to some of these types of weapons as now being under the purvey of the NFA as they would be deemed to be short-barreled shotguns because they possess rearward attachments that are designed to be shouldered,” an ATF official said.
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Once Registered, You can Ditch the Brace
If you bought a braced pistol with the intention of shouldering it, you’re in luck. The rule essentially streamlines the process of obtaining an SBR and it waives the $200 tax
Once you complete the registration process, the part that’s considered a firearm will be registered as opposed to the stabilizing brace. That means you can remove the brace and add an actual stock.
Before May 31, 2023
Anyone who owns a braced pistol must comply with one of the five options listed in the rule before May 31, 2023. But if you think the new rule does not apply to your firearm, the ATF said you can submit it for re-classification.
If you do choose to register your braced pistol, you have to complete ATF Form 1, or eForm 1, before the deadline. Afterward, ATF suggests that you keep all your documentation, at least until your request has been approved.
For more information, check out the ATF website or contact the agency’s Firearms Industry Programs Branch at FIPB@atf.gov.
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THE FOLLOWING WAS PUBLISHED JAN. 30, 2023:
Pistol Brace Ban Countdown Starts Jan. 31, 2023
The Federal Register will publish the ATF’s new pistol brace rule on Jan. 31, 2023, giving brace owners and dealers a 120-day window to comply before it goes into effect. Although the countdown for the impending pistol brace ban has been teased before, the Federal Register announced the publication date via email to Free Range American.
The new rule outlines when the ATF would consider pistols equipped with a stabilizing brace as short-barreled rifles (SBRs), which are heavily regulated under the National Firearms Act. The NFA is a federal law that regulates machine guns, silencers, SBRs, and short-barreled shotguns, and items classified as “any other weapons.”
Additionally, the Department of Justice has announced that a final draft of the rule had been written earlier this month and would soon be published. The ATF also published a variety of resources informing the public on how to comply with the rule changes.
ATF Guidelines for Pistol Brace Ban Compliance
According to the ATF materials, owners, dealers, and government entities will have until May 31, 2023, to comply with one of five options:
- Replacing the pistol barrel with a 16-inch (or longer) rifle barrel.
- Removing and altering the brace so it cannot be reattached.
- Forfeiting them to their local ATF office.
- Destroying their braced firearm completely.
- Registering the weapon as an SBR.
Individuals who want to register their brace must have had possession of the item before the publication date, submit ATF Form 1 before the deadline, and mark the item as required by federal law. The $200 tax typically required for SBRs will be waived.
Federal firearm licensees must follow the same process for individuals unless they are a Class 1 Importer or Class 2 Manufacturer. The classifications allow the FFL to sell and make NFA items, respectively. If they meet that criterion, they can either register the items tax-free or submit them to the ATF.
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.”
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