The deadline to comply with the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ (ATF) pistol brace rule has come and gone. ATF is now free to enforce the rule classifying braced pistols as short-barreled rifles (SBR) under the National Firearms Act (NFA). A series of legal injunctions has protected some brace owners from enforcement, but many others, potentially millions, are now, technically, felons.
Strange as it seems, some of those are undoubtedly unaware of their new status. Not everyone keeps up with the news. Hard to believe, but it’s a fact. Some may not learn until they get smacked with a federal charge landing them in prison for up to ten years with up to a $250,000 fine tacked on for good measure.
Most, however, have chosen not to comply with the rule, fully understanding what they are doing. These folks either believe the rule will be overturned and are taking their chances until then. Some are covered by the injunctions, which we’ll talk about in a moment. Others are convinced the rule is unconstitutional and they have decided to not obey it. Most probably fall into at least two of those categories, and possibly all three. Either way, we seem to be at an impasse. The ATF says unregistered braced pistols are illegal SBRs. Millions of Americans have chosen to ignore that classification. So, now what?
A Little History
Congress passed the National Firearms Act in 1934. The law was a response to exploding gang violence during the Prohibition Era, the infamous 1929 St. Valentines Day Massacre, in particular. Without going into great detail, the NFA required payment of a $200 tax and registration for each item under its classification. These items included rifles with barrels shorter than 16 inches (SBRs), shotguns with barrels under 18 inches (short-barreled shotguns, or SBSs), fully automatic weapons, suppressors, and other “destructive devices.” These were items Congress deemed, with a big assist from Hollywood, especially dangerous.
Fast forward to 2012, when Alex Bosco invented the stabilizing pistol brace to help disabled veterans use their AR pistols more easily. The brace was designed to be strapped to the forearm, thus stabilizing the gun. ATF approved the brace and said it does not transform a pistol into an SBR. ATF confirmed this ruling several times over the next decade.
But last year, at the behest of President Joe Biden, ATF reclassified braced pistols as SBRs under the NFA. The rule took effect in January and brace owners had until May 31, 2023, to either register the firearm as an SBR (with the $200 tax fee waived), turn the brace in to the ATF, or destroy the brace. Any of those actions would bring a brace owner into compliance.
Several lawsuits have been filed against the ATF’s rule in federal court. Three cases produced preliminary injunctions protecting certain people from enforcement until the case is decided. We’ve already covered the details of those cases elsewhere, but here’s the bottom line.
Maxim Defense, its owners, their families, employees, and customers are protected. Members of the Firearms Policy Coalition (FPC), the Second Amendment Foundation (SAF), and Gun Owners of America (GOA) are protected since those organizations were plaintiffs in these suits. There is some question as to whether members who joined these groups after the injunction date but before the deadline are covered. We do not know for certain. If you fall into that category, we suggest investigating it closely before assuming anything.
The State of Texas was also a plaintiff in one case, meaning that state employees, and employees of all state agencies, are also protected. This means that, potentially, millions of people are covered by the injunctions, but we don’t know exactly how many. Whatever the number, we do know that millions more are not protected.
The ATF’s impact assessment study estimated that Americans own anywhere from 3 to 7 million pistol braces. But the Congressional Research Service put it somewhere between 10 and 40 million. Manufacturers sales estimates are also far beyond the ATF’s estimate, which excluded sales figures for 2020, 2021, and 2022. We all know how firearms sales exploded in those years.
Erik Longnecker, the Deputy Chief of ATF’s Public Affairs Division, told The Reload’s Stephen Gutkowski that 255,162 registration applications were received before June 1, 2023. That’s it. Even if the ATF’s numbers are correct, that’s an amazingly low number. Running the full range of possible privately owned braces, the number of applications equals 8 percent at best, and could be as low as 0.6 percent.
As we noted, some of those folks never knew they had to register their braces. They still don’t know. Again, hard to believe but undoubtedly true. But we believe those to be a distinct minority. It appears that most brace owners have consciously chosen to not comply with ATF’s rule.
So, what will ATF do? Director Steve Dettelbach told Congress last month that ATF would not be knocking on doors to confiscate braces. He anticipated enforcing the rule as part of other activities, such as crime scene investigation or other ATF and law enforcement functions. But make no mistake, this is a big problem for the ATF. It will be interesting to see how they address it.
Ideally, they would forgo all enforcement until the lawsuits shake out, but honestly, does anyone think that will happen? Probably not. So, what options do brace owners have?
If you’re one of the 255,162 applicants, you just wait for your tax stamp. With that in hand, you can go to the range and blast away. If you’re covered by an injunction, you can do the same, but you should probably be able to prove you’re covered. If you can’t, maybe lay low for a while until you can.
If you have simply chosen not to comply, we can’t advise you. We hope you’ve made an informed choice and act accordingly. As onerous as we may find the rule, it still carries the force of federal law until, or unless, the courts or Congress strike it down. But until that happens, if you’re caught, you’re probably going to jail.
The lawsuits are moving forward, with the most substantial case, Mock v. Garland, expedited for the 5th Circuit Court of Appeals to hear on June 29, 2023. The House of Representatives could vote on House Joint Resolution 44, which would nullify the rule altogether, at any time. It could even pass the Senate if it gets a vote. But don’t get your hopes up because Joe Biden will certainly veto the resolution if it reaches his desk.
We are cautiously optimistic that the courts will ultimately find the rule unconstitutional. That would almost certainly spark a brace ban push in Congress, but that doesn’t seem likely to gain much traction at this point. Whatever happens, it seems that American gun owners have spoken regarding the ATF rule. The government’s next moves should be interesting indeed. Will they push the agenda or recognize that gun owners are getting fed up and maybe decide it’s not worth pursuing? That’s hard to say and either one is possible. We’ll keep you updated. Stay tuned.