If you have not heard, the Department of Justice and the ATF announced a new ruling that changes the legal status of pistol braces. I’M NOT A LAWYER so take my advice as just that: a civilian’s best guess as to how to proceed if you own an AR-15 or other firearm that currently is fitted with a pistol brace and was bought as a pistol.
What Firearms Are Affected? This ruling affects AR-15 style firearms mainly, but other firearms have pistol braces as well. This ruling affects any firearm that has a pistol brace and was previously classified as a pistol. Experts conservatively estimate that between 10-40 million firearms are affected.
What does the new ruling say (and not say) about these firearms? It says that pistol braces are de facto rifle stocks, and firearms equipped with them that also feature barrels shorter than 16″ are now considered Short Barreled Rifles (SBR’s). As you probably know, SBR’s are regulated more tightly than other firearms as they fall under the National Firearms Act (NFA). All SBRs are on a national registry of serialized firearms – the government knows who possesses each and every one. Additionally, unlike other firearms which may be legally transferred via private sale, NFA items cannot be transferred via private sale; they must be transferred via ATF Form 3 or 4.
All Americans have the legal right to own NFA items like silencers and SBR’s, but they require a Tax Stamp from the ATF in order to posses them. To buy one via retail, it requires a Form 4; the approval process takes 9-12 months, and costs the applicant just under $300 in total fees. A firearm that an owner converts to an SBR or, as in this case, a firearm that is suddenly deemed an SBR must now be added to the national registry of SBRs. This process is done via a Form 1.
According to this ruling, firearms with pistol braces that were heretofore possessed lawfully must be legally recorded as an SBR and come into compliance as an NFA item via an ATF Form 1; firearms with pistol braces purchased from an FFL dealer like Sutpen’s Hundred after this ruling is recorded in the Federal Register must be treated as SBR’s and transferred via a Form 4. For firearms that will need a Form 1, the ATF is offering amnesty from $200 in fees to Americans who comply with this ruling for the first 120 days (or, before May 30, 2023). After that, they must submit any Form 1’s at full cost. Notably, the ruling does not outlaw pistol braces or otherwise restrict who can possess a firearm with a brace. The rule was officially published in the Federal Register on 1/31/23
Why are 2A/Gun Advocates so upset about this? There are an estimated 10-40 million of pistol-braced firearms in circulation. As a group, gun owners are more law-abiding than non-gun owners – this is a fact. To wit, all retail gun purchases require a background check and felons cannot pass one. So whereas all these firearms were purchased and have been possessed legally, and whereas manufacturers made them according to the ATF’s own affirmative rules that previously OK’d pistol braces, this ruling goes back on previous ones and makes felons out of legal and responsible possessors overnight. To the extent this law is intended to combat unlawful possessions, most agree that non-legal possessors of these firearms were and will continue to disregard the law in the future and will have little impact on crime. Additionally and significantly, whereas these firearms and their owners were not on any government list or registry before, this ruling makes the national registry of SBRs into a vastly more complete total government gun registry of specific Americans and the specific number, type, and configuration of their guns. This sets up a convenient basis for future diminishment of rights, so a lawful citizen’s concern about this is obvious. Additionally, 120 days is not a long time to figure all this out, and even free Form 1’s and Form 4’s are onerous to complete; ones that cost money even moreso. Finally, even if a dispute to this ruling is successful, it is impossible to undo the objectionable consequences of compliance.
What can you do if you own a firearm that is subject to this ruling? For starters, hopefully you need to legally transfered any affected firearms that you own into a gun trust prior to Jan 31, 2023. Next, those of us who disagree with this ruling should write an email or letter to our representative in the federal congress. See how to do that (including from text) HERE. Next, you can donate to the leading organizations that will spend money to correctly and professionally challenge this ruling in court – donate HERE Next, OK, once you’ve done that, you have 120 days to make your next move. Personally, I think your options include:
A) legally sell, destroy, or otherwise not posses the affected firearm(s) going forward
B) remove the pistol brace from the firearm and replace it with nothing. This of course, makes the firearm nearly impossible to use. Note: you have to basically destroy, lose, or otherwise not posses that brace because – and I have cleared this with an attorney – if you possess the parts to build an SBR but they are not all assembled, the ATF will STILL consider you to posses one. See below on an option for what to do with any such removed braces.
C) Change out the firearms’ upper or barrel assembly for one that is 16″ or longer. Sutpen’s Hundred has several nice uppers in stock. Again, due to how ATF views dis/assembled parts in your possession, you need to not posses the short lower to be in technical compliance with the ruling. Again, see below on an option for what to do with those parts.
D) Comply with the ruling and make all your pistol-braced firearms into SBR’s through the ATF Form 1 before May 30, 2023.
One thing I cannot recommend (no matter how much I dislike this ruling and hope it will be stuck down) is to not comply and illegally posses a firearm. Do what you think is best, but as a old friend of mine once said in more colorful language: “If you think you’re gonna screw the government, you don’t know very much about screwing.”
Is this ruling legal and is anyone fighting it from taking effect? Personally I don’t this this will be found to be legal – but who cares what I think? More importantly, leading 2A advocates will most assuredly fight this ruling. And it is not clear to me how likely they are to prevail. Much has and will be written about this; I won’t do it here. I think it’s possible to get this ruling tossed, but not something I am counting on anytime soon. If they do prevail, it’s hard to imagine them doing so before May 30. Likely it would take a Supreme Court visit, and that never seems to happen fast. Vote for Republicans (or pro-2A democrats?) in the meantime.
Regarding B and C from above – If you are staunchly unwilling to comply and register your firearms as SBRs AND if you are willing to gamble that this will be repealed one day, there is one more option for you: Sutpen’s Hundred can take possession of your removed braces, uppers, and/or complete firearms and store them on your behalf – an attorney has assured me this is legal – until such time that you either want them back or until the ruling is stuck down. There are some other important aspects of this to note, so iIf you’re interested in this, let me know by calling me or emailing me at [email protected] and we can discuss it.
This sucks, but I’m going to comply and Form 1 my firearms. How the heck do I do that? I’ll write another blog post about how to do this as soon as I figure it out, but in the meantime this is ABSOLUTELY CRITICAL TO NOTE: the fee amnesty that the ATF is offering will apply ONLY to the owners of firearms as of the date the ruling is enshrined in the Federal Registry. This enshrinement will take days, not weeks. This means, as I understand it, that you cannot put the firearm in a trust subsequent to enshrinement in Federal Register AND avail yourself of the amnesty. If you move a firearm into a trust and apply for a Form 1 AFTER enshrinement in Federal Register then you will have to pay full fees for that process. Transferring a firearm into a trust would require proof like a bill of sale, etc. I think that it’s extremely prudent to move any firearms that are subject to this ruling into a trust, if you can, before it hits the Federal Register – regardless of what you choose to do long term – because it preserves all your best options. If you do not have a trust for this, get one online or contact an attorney ASAP and ask for a gun trust.
What about pistol-braced firearms currently in Sutpen’s Hundred’s and other FFL dealer inventories? We have about 6-7 pistol-braced firearms in inventory. Sutpen’s Hundred is offing massive discounts on these. Call or email the store if you want to know more about them…
********* I will continue to update this blog post as I learn more *********
Please hit me up if you have any questions or you think I have missed something here.