ATF Pistol Brace and SBR Amnesty

Let me start with the standard disclaimer to make the boss happy. I am not a lawyer, but I did sleep at a Motel 6 once. If you take my musings that follow as legal advice, you deserve what you get. Laws change, courts issue rulings, injunctions, and restraining orders — over time, this information too will be out of date. Please read the article and use the information as a starting point when consulting legal counsel before acting on any information that may be contained here.

Social media is full of beginners and experts… most of them are wrong. The ATF and its “guidance,” or lack of it, have not improved the situation. On top of that, the courts have started to weigh in with decisions that affect the ATF’s ruling, leaving most who think they have a handle on the ATF/Justice Department and pistols braces off base with any advice they may give.

So, let’s back up and see where all this mess started and what we can detangle. First, did you know there was an amnesty and free tax stamp to register your pistol brace-equipped firearm into an SBR? While the ATF is good about making rules and threats, it seems it forgot to use its big boy voice when talking about a free tax stamp and amnesty… Thus, chaos and confusion have ensued.

The History

The problem started in mid-December 2020, after the ATF issued a formal notice regarding pistol braces. Lately, the ATF has tried to venture into making laws, rather than rulings under the guise of “clarifications.” That’s according to the court challenges and temporary injunctions that have been issued, but we will get into that later. In the ATF’s notice, it reclassified pistols equipped with stabilizing braces as NFA items subject to registration and a tax stamp.

There has been some back and forth, partly due to politics and pro-2A groups such as the Second Amendment Foundation with its lawsuits against the ATF for its failure to follow the law regarding notice to the public, comment periods, etc. This gave manufacturers and gun owners more time and opportunity to ensure pistol braces “were in common usage.”

Obviously, the ATF (and the political pressure it was under) did not retreat. Instead, the Justice Department reissued its rules (2021R-08, Factoring Criteria for Firearms with Attached Stabilizing Braces) in early June of 2021 making pistol brace-equipped firearms NFA items — essentially reclassifing them as Short Barrel Rifles (SBRs). The ruling said the brace was intended to be fired from the shoulder, in opposition to the ATF’s previous ruling that shouldering a pistol brace did not make it an SBR. Eventually, the ATF was forced to withdraw its ruling, but not before gun owners made their voices heard.

However, predictably, no level of public outcry would sway the ATF. I talked to two former directors within the ATF. Both indicated the fight was rigged, and politics were the impetus for the ATF’s reversal on braces. Unfortunately for the pro-Second Amendment forces, Factoring Criteria for Firearms with Attached Stabilizing Braces was adopted as 2021R-08F.

Arm Brace Ruling and Amnesty

The guidance given by the ATF on which guns would be reclassified as SBRs was fuzzy to say the least. Every post on social media accuses every firearm pictured with an arm brace to be an SBR and the person posting it to be in violation of the law. “If the ATF sees this post, you’re going to jail!”

The Justice Department announced its “New Rule to Address Stabilizing Braces, Accessories Used to Convert Pistols into Short-Barreled Rifles” on January 13, 2023, and published it on January 31, 2023. The rule went into effect immediately upon publication. However, a 120-day amnesty and compliance period was also offered. Therefore, the amnesty will expire on May 31, 2023.

What does the ATF consider when making an SBR determination?

The ATF stated it will make its decision as to whether a firearm should be ruled as an SBR on a “case-by-case” basis, depending on the configuration of the gun. Previously, the ATF used Worksheet 4999 in its determinations. However, in this case the ATF did not offer a Worksheet 4999, but it did adopt much of the same criteria. While the ATF now considers stabilizing braces to be stocks, it attempted to make exceptions for certain classes of people with disabilities. This opened a new can of legal worms and challenges that we will not cover here.

Here are the technical specifications the ATF has stated it will use. The ATF’s determinations are based on its new definition of “rifle.” As such, the ATF will apply the new definition coupled with five primary factors to determine whether a braced pistol should be classified as an SBR.

The ATF’s new definition of a rifle classifies a firearm that is equipped with an accessory, component, or other rearward attachment such as a stabilizing brace and provides a surface area that allows the weapon to be fired from the shoulder, along with other factors that indicate that the firearm was designed, made, and intended to be fired from the shoulder, as an SBR.

The ATF’s factors are:

1. Length and weight – How similar are the weight and length of the braced pistol to that of a similarly designed SBR?
2. Trigger position – How close is the trigger to the center of the firearm with all accessories extended (like a rifle)? Is the trigger near the rear of the gun (like a traditional pistol)?
3. Optic design – How are the sights or scope designed to be used (i.e., intended to be raised to the shoulder to use effectively)?
4. Manufacturer’s marketing – How does the manufacturer promote the use of the firearm?
5. Common use – How is the gun community using the firearm?

Note: Without a rearward attachment, the firearm should not be classified as an SBR. Likewise, a rearward attachment that is “required for the cycle of operations of the gun” (e.g., a standard 6–6.5-inch buffer tube on an AR-style pistol) — even if it provides a surface area that allows the firearm to be shoulder-fired — should not result in the firearm being classified as an SBR.

Who is impacted by the final rule?

Unlike the final rule on frames and receivers, which primarily impacted dealers and manufacturers, the pistol brace rule will impact millions of gun owners. These include:

• Unlicensed possessors (folks who have not registered the “SBR”)
• Non-Class One or Class 2 FFLs (dealers or manufacturers)
• Certain qualified FFL importers or manufacturers under the GCA
• Certain governmental entities

Compliance With the New Rule

It is important to note that states and certain counties or municipal laws will also dictate whether a firearm in a particular location is legal. This article only details the requirements under federal law.

The Justice Department has outlined four ways you can ensure compliance:

1. Registration
2. Disassembly
3. Destruction
4. Submit the firearm to the ATF for a determination

Unlike the ATF’s ruling on bump stocks, where the mere possession of a disassembled bump stock and a firearm that it could be attached to constitutes a machine gun, there is no such provision in the pistol brace ruling. Therefore, disassembly and possession of an unattached brace does not constitute possession of an SBR or require any particular tax stamps. Given the rulings and temporary restraining orders issued from the Fifth Circuit Court of Appeals, disassembly and storing the parts may be the route many people choose, but should they?

ATF Pistol Brace Rule and SBR Amnesty

When the rule was published on January 31, 2023, in addition to the amnesty period a free tax stamp was offered. The stamp is not for any SBR. This free stamp only covers NFA SBRs that were previously classified as stabilized pistols, not traditional SBRs (such as a short-barreled rifle with a stock). Like the 120-day amnesty, the period to apply for the free tax stamp (Form 1) expires on May 31, 2023. After May 31, you will be required to pay the normal $200 for the stamp.

Many will not want to subject themselves to a government “registration” and would prefer to wait and see what happens in the court. I can’t say they are on a wrong path, but there may be a loophole some will want to take advantage of. While you can only get a free tax stamp for braced pistol, after May 31, 2023, there will not be a distinction between a braced pistol and an SBR. That means (at least according to my understanding) a braced pistol would then be eligible to be equipped with a traditional stock under the tax stamp that was issued for free… Now, if the new stock changes the overall length of the firearm, you will need to submit a pre-approval form to the ATF.

Nothing with the government is ever simple when it comes to firearms, and this is no exception. Some will choose to go the Form 1 route and get the free tax stamps. Others will shun the registration, and I fully understand and respect both decisions. Make your own choice. Make an informed decision after competent legal advice. Stay safe…