The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) Pistol Brace Rule has been brewing since last December, but its enforcement is now upon us. Despite Congressional hearings, a stalled House Resolution, and several federal lawsuits, the ATF begins enforcing the rule today. We’ll address the progress of those efforts shortly, but first, let’s look briefly at the rule and your options as they stand right now.
The Pistol Brace Rule
Essentially, just in case you haven’t heard, ATF published a rule change reclassifying firearms equipped with stabilizing pistol braces as short-barreled rifles (SBR). As SBRs, such firearms must be registered under the National Firearms Act of 1934 (NFA).
ATF gave pistol brace owners 120 days to register their items, waiving the normal $200 fee during that time. The 120 days ended at 11:59 PM on May 31. So, if you have not registered your pistol brace at this point, you are a felon in the ATF’s eyes. If they bust you with an unregistered SBR (according to them), you can receive up to 10 years in prison coupled with a $250,000 fine. You will also likely lose your gun rights forever.
You have a few options at this point. This is not advice. It is merely a list of options.
- You can detach the brace and destroy it.
- You can detach the brace and remove it to another location where a compatible firearm, such as an AR pistol, does not reside. Despite what ATF Director Steve Dettelbach told Congress, you CANNOT simply detach the brace and chuck it in your closet. If discovered, ATF WILL charge you since you have the parts to assemble an SBR on hand.
- Before the 120 days ended, you had the option to surrender the brace to the ATF. You could theoretically still do that, but doing so all but admits your possession of an illegal SBR after the deadline. It’s probably not a wise move at this point.
- You can hunker down and wait to see how the lawsuits work out. According to Dettelbach, ATF will not be visiting people’s homes looking for unregistered SBRs. He said enforcement will be opportunistic, as part of other endeavors. You can take that however you want, but remember he also said in the same hearing that you could just detach the brace and keep it, which is not true. You can trust his word or not.
- You MAY be protected by one or more of the recent preliminary injunctions issued by federal judges. In that case, you can hang on to the braced firearm pending the final legal findings. Let’s talk about those proceedings.
There are at least four federal lawsuits challenging the pistol brace rule. Three of those secured preliminary injunctions prior to the May 31 deadline. A preliminary injunction is not a final ruling. Rather, a judge grants a preliminary injunction when the evidence indicates the plaintiffs (in this case, those who are challenging the rule) have a good chance to succeed on the merits of their case. So, preliminary injunctions are very good, but they are just that: preliminary.
Each preliminary injunction prohibits the ATF from enforcing the rule against anyone protected by the injunction. Five distinct groups are currently protected, based on who the plaintiffs were in each case.
Maxim Defense owners, employees, and customers. So, if you work for or bought a pistol brace from Maxim Defense, you are protected. Go shoot your braced pistol. Just make sure you can prove that you’re protected. If you can’t, better just leave it at home for now. Also, if you own a Maxim Defense brace and a brace from another company, ONLY the Maxim Defense brace is protected. The injunction, in this case, follows the product.
The Firearms Policy Coalition employees and members. There are some questions as to what constitutes an FPC member. The organization released a statement saying it had expanded its membership definition to include anyone, individual, or corporate, who had donated at least $20 since June of 2022. That could theoretically expand the injunction to cover employees of those corporations, but that assumption is at least questionable. I don’t know that I would hang my hat on it without a concrete statement from the court.
FPC also says that members who joined after the injunction, but before the May 31 deadline, are also covered. But I’ve seen some Second Amendment attorneys who question that. In the past, such injunctions have typically only covered members who are current at the time the injunction was issued. Again, I would be very cautious about this without confirmation from the judge.
Gun Owners of America employees and members. Again, be very careful about assuming you’re covered if you joined GOA after the injunction was issued. Please err on the side of caution. ATF objected, claiming that GOA doesn’t actually have members. That was news to GOA, its members, and the judge, who sided with GOA. It just shows how ATF cannot be trusted here. Be careful.
The Second Amendment Foundation employees and members. Same deal as with FPC and GOA.
The State of Texas and individuals directly employed by the state. That’s right, the State of Texas was a co-plaintiff with GOA. The motion asked for all Texans to be included, but the judge declined to go that far.
States Where SBRs are Already Illegal
This one is weird because these are gun control states. It seems odd that their policies would protect gun owners from the feds. But here’s the logic: If SBRs are already illegal and gun owners have braced pistols to comply with that law, the ATF saying that braced pistols are SBRs contradicts state law. I don’t know all the legal ins and outs, but it appears that brace owners in those states are protected, at least until the dust settles.
Congress could still act on House Joint Resolution 44 (H.J. Res. 44), which, if passed, would nullify the pistol brace rule altogether. Don’t get your hopes up. The House of Representatives may vote on H.J. Res. 44, especially since 27 state attorneys general wrote Speaker Kevin McCarthy a letter insisting that they do so. If so, the resolution will likely pass.
But even so, it would still have to pass the Senate. The resolution could possibly garner the necessary 51 votes, but I think it’s highly unlikely that Senate Majority Leader Chuck Schumer will allow a floor vote. Even if he does, and it passes, Joe Biden will certainly veto it.
H.J. Res. 44’s value lies in forcing politicians in purple states who may be wishy-washy on gun rights to actually record a vote. The resolution passing Congress could also demonstrate to the courts that Congress doesn’t like the ATF usurping its power. The courts often defer to Congress, so long as the issue at hand is not unconstitutional. Keeping pistol braces legal does not violate the Constitution in any way, so that perception could be important. So, even knowing Biden will veto it, we should urge our representatives to vote for the resolution.
Still a Long Way to Go
The ATF took losses with those preliminary injunctions, but we still have a ways to go. Each case still has to play out to a final ruling. Each injunction merely prevents ATF from enforcing the rule against the protected groups until that particular case is decided, Congress strikes down the rule, or the Supreme Court rules on an appeal. ATF will certainly appeal any losses, as will each plaintiff.
I expect at least one of these cases to be appealed to the Supreme Court. If the Circuit Courts (the 5th and 8th, in these cases) agree, the cases may be combined before the Supreme Court hears it. If they hear it. It’s possible that they may let the Circuit Court decisions stand. We just don’t know until it happens. We will certainly stay abreast of any developments here.
Either way, this could take a year or two. The courts move in their own time. Until then, unless you’re protected, ATF will be enforcing the pistol brace rule. I heard yesterday that only 200,000 people have registered their braces. I don’t know whether that’s true or not. If so, that’s not very many, considering there are an estimated 10 to 40 million Americans who own braces. Many of them are unprotected. Y’all be careful out there.