On Monday, January 30, the lovely folks at the ATF published the final Pistol Brace rule in the federal register.
As you may have heard, the rule would assign essentially all firearms with attached stabilizing braces to the registration and taxation requirements of the National Firearms Act.
This is confusing because, in 2012, the ATF has recognized that stabilizing braces serve a legitimate purpose, and the inclusion of a stabilizing brace on a pistol or other firearm does not automatically subject that firearm to the provisions of the National Firearms Act.
There has been a whole bunch of confusion that the ATF has had to figure out what they actually mean and then explain. They are never minor details like for example, the rule claims that destruction or alteration is required for owners who choose the option of simply removing the brace from their firearm. ATF confirmed that braces that are removed from firearms do not necessarily have to be destroyed or altered in a way that prevents them from being reattached to a firearm. That requirement would be contrary to the Supreme Court’s decision in United States vs Thompson/Center Arms Co. That case says that possession of a firearm and parts that can only be assembled into an NFA “firearm” constitutes possession of an NFA firearm. But, if the parts can be assembled into multiple lawful configurations, then the parts are not considered an NFA firearm (unless an unlawful configuration is actually assembled).
To me, this means if you have a Pistol setup with a brace on it but you also own a 16″ complete upper, you should be able to keep the brace without destroying or altering it. But if you only have a pistol setup with a brace and nothing else you have to dispose of the brace to avoid creating an SBR.
Another big one that made me even less interested was that in the final rule posted on the ATF’s website, the agency claimed that imported pistols with stabilizing braces would need to be destroyed or surrendered because they were unlawfully assembled in violation of 18 U.S.C. § 922(r), which generally prohibits the assembly of “non-sporting” rifles or shotguns without sufficient domestically manufactured parts. Meaning my MP5 or my Stribog, although purchased legally could not only not become SBR’s but would have to be destroyed.
Section 922(r), makes it unlawful to assemble from imported parts a semiautomatic rifle that is otherwise not importable. The implementing regulations of the GCA at 27 CFR 478.39 provides that a person may not assemble a semiautomatic rifle using more than 10 of the imported parts listed in the relevant paragraphs of the regulation. Now under the final rule, the criminal violation under section 922(r) is for the “assembly” of the semiautomatic rifle; So in short, no modification of such firearm would cure the 922(r) violation because the “assembly” has already occurred amd was imported. This makes it so any person with an imported pistol that was subsequently equipped with a “stabilizing brace” will have the same options as anyone else under the final rule. Should that person choose to register the firearm, no further modification of the firearm with domestic parts is required.
The fact that ATF already needs to “clarify” aspects of the rule and make changes or adjustments before it was officially published in the federal register further contributes to the arbitrary and confusing nature of the rule.
Some good news for us law-abiding gun owners, the federal courts have recently proven more willing to invalidate agency actions that go beyond congressionally enacted statutes. The bump stock ban was struck down by the United States Court of Appeals for the Fifth Circuit. I think based on this and the fact that the ATF said to make the pistol brace exactly to these specs and it is perfectly legal, then decided this also made them illegal, sets a legal precedent.
For some more information directly from the ATF here is a link to their FAQ:
Here is a very good summary from Silencer Shop on this subject as well: