A few weeks ago, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE or ATF) announced their final rule on stabilizing braces (2021R-08F Factoring Criteria for Firearms with Attached “Stabilizing Braces”) and submitted it for publishing to the Federal Register. Since then many readers have asked for my opinion or interpretation of the rule. Rather than jumping the gun and immediately sharing my thoughts, I decided to take a moment to process the information while setting up a conversation with some folks that know way more about this than I do. In other words, I called my friends at Right To Bear for some help.
Right To Bear offers self defense protection insurance to private citizens. They have been an active supporter of this blog. To be clear and transparent, I do have a monetary agreement with Right To Bear where I am paid a small commission for sign ups via links available on this blog (or other communication channels) or via the use of the discount code “UNCLEZO” at ProtectWithBear.com which will yield a 10% discount of the first year’s plan fees which they have significantly reduced and simplified since their inception last year.
Since Right To Bear operates amidst the legal space, it made sense to me that they might know quite a bit more about this regulatory change than I do. The conversation we had was educational and frightening. Before I get into the nuts and bolts, I also need to be very clear that what is written in this post is absolutely not legal advice. I am not an attorney and neither was Scott, the Right To Bear representative that I spoke with. What I will share with you is strictly my opinion and understanding which may very well be incorrect and subject to change as the situation evolves and more information becomes available.
All right. Let’s get into it.
The new rule which was officially published in the Federal Register on January 31, 2023 has effectively reclassified certain firearms with attached stabilizing braces as short-barreled rifles (SBR). This begs several questions. Which firearms? What are stabilizing braces? What are SBRs? Unfortunately, the answers to some of these questions are ambiguous and appear to be the beginning of a rapidly expanding legal quagmire. Nevertheless, that’s what we are here to explore.
“What is an SBR?”, is arguably the easiest question to answer. A short-barreled rifle is a rifle with a rifled barrel length of less than 16” or an overall length of less than 26” that is designed to be fired from the shoulder. An SBR is also a weapon that is regulated under the National Firearms Act (NFA). That translates into a weapon that cannot be legally owned without special authorization from the ATF which requires submitting fingerprints, paperwork, undergoing a background check, and paying a special tax. Ownership of a regulated NFA item also imposes additional legal requirements in order to travel with it or transfer of ownership. It is entirely possible to own one, in fact many people do, assuming one jumps through all of those hoops and lives in a jurisdiction where it is legal to do so. Possessing one without going through the proper legal channels is a felony that is punishable by 10 years in prison and a $250,000 fine.
Stabilizing braces are a device that can be attached to the rear of a firearm and is designed to be secured to a forearm which aids in the stabilization of the firearm while operating it. For many years, the ATF has given the proverbial thumbs up to these devices being attached to firearms which are now reclassified as SBRs.
Things start to get ambiguous when we start talking about which firearms with attached stabilizing braces are impacted by the new rule. The obvious targets of this rule are AR and AK platform pistols. These are firearms that have been designed and manufactured without stocks and feature rifled barrels that are less than 16” long which remain free from NFA regulation so long as they don’t have an attached stabilizing brace. However, other types of pistols may be considered SBRs if their design, weight, or size are similar to another SBR in the market. Another thing that may result in a firearm with an attached brace being classified as an SBR is if marketing material, operating instructions, or community discussion (read that as social media posts) suggest the possibility of operating the firearm from a shoulder. That includes content that is yet to be created. This isn’t only ambiguous, but it is also a moving target as future SBR products and content can perpetually move the goalposts.
The implications of the precedent this new rule sets is scary as it effectively allows an agency to create or alter laws that carry heavy criminal punishment with. Even worse is that an agency is effectively defining what a private citizen can and can’t own and puts pre-existing owners in a very dangerous predicament they may not even be aware of. Let that sink in for a minute. I realize that the items in question with regards to this rule are “firearms with attached stabilizing braces”, but don’t forget there have been ongoing discussions about banning natural gas appliances and internal combustion engines. This rule could be the precedent that allows other agencies that do not have legislative authority to essentially make laws. This might seem like a big stretch, but several people were labeled as conspiracy theorists when they suggested that the bump stock ban could lead to things like this rule.
I want to once again emphasize the predicament pre-existing owners of these firearms with stabilizing braces. This is a huge problem. Industry experts estimate there are somewhere between 10 to 40 million owners of these firearms with attached stabilizing braces that are impacted by this rule change. Chances are the majority of these owners aren’t aware that this rule exists and may never be aware of its existence at all. Unfortunately, ignorance of laws and regulations is not a viable defense strategy when facing criminal charges. While I highly doubt those owners will be “rounded up” and tossed in jail since the resources and coordination required for mass enforcement campaigns are astronomical, there are likely millions of owners who now possess an SBR illegally and will be unaware of that fact for years to come. This poses a serious risk because in the possibility exists that during the course of their daily lives and without any malicious intent have an encounter with law enforcement that results in the discovery of unknown illegal possession of an SBR which then leads to criminal charges. This interaction could be the justified use of one of these weapons in a self defense incident, a traffic stop while traveling with the weapon for recreational target shooting, or a response to a medical emergency where the weapon is simply locked again in a display case at home.
So what can we do? Aside from the five options the ATF has set forth in order to comply with this new rule, there are a few additional courses of action that I would encourage folks to take.
The first course of action is to sign up for a firearms or self defense legal plan or insurance policy. While I am partial to Right To Bear because they are a sponsor of the blog and believe enough in the value their plan provides to be a customer myself, I will encourage each one of y’all to look into the plans and policies offered by reputable providers to select the one that fits your needs and budget the best. They aren’t all the same. However, the one thing all reputable providers have in common is that they all provide access to an attorney to get legal advice that is specific to your situation at no additional charge. This is important because laws and regulations are changing all the time and can vary from one jurisdiction to another. I use this feature regularly to make sure I’m not putting myself at legal risk by participating in a firearms related activity, practice, or transaction. For example, one can call to discuss the details of an upcoming private party sale of a specific firearm. In this scenario, the attorney may point out that the firearm that is about to be transferred is subject to NFA regulations and could put both parties in grave legal jeopardy. Alternatively, the attorney may suggest paperwork to include in the transfer or inquiries to make of the other party to minimize legal risk. In the context of this rule, it wouldn’t hurt for folks who own one or more of these firearms with stabilizing braces, which are now classified as SBRs, to get some specific advice about what to do with them and how to go about it.
The second course of action that I will encourage is to contact your government representatives and express your concerns and thoughts about the new rule. I suspect that anyone who has read this far into this post is impacted by this rule and considers it to be a steaming pile of bovine manure like I do. I get that many feel that voicing opinions will change nothing. However, silence will be inferred as acceptance. That will certainly change nothing and may invite truckloads of additional steaming piles of bovine manure.
One final course of action that I wholeheartedly encourage is to donate to and support your favorite gun rights organization. Law suits aren’t free and they are already being filed seeking injunctions while looking to overturn the rule. If you are unsure of which organization to fund, then I’ll suggest making donations to the Firearms Policy Coalition or Gun Owners of America. The fight I have a dog in is in the fight to preserve and protect our rights which others would like to restrict and take away.
With that out of the way, let’s take a look at the five options for compliance the ATF has made available to some of us. I say some of us because local jurisdictional restrictions may make some of these options unviable for some of us. Again, go get sound legal advice specific to your situation in your jurisdiction.
Option 1, replace the short barrel with a barrel that is 16” or longer. Seems simple enough on the surface, but it comes along with some quandaries to consider. If we are talking about an AR platform pistol, this could be done by replacing the upper receiver with one that has a barrel that is 16” or longer. However, leaving the replaced upper receiver that has a shorter than 16” barrel in the vicinity of the firearm, other AR-15s, or other lower receivers could be construed as having “constructive possession” or “constructive intent” of an SBR which carries the same penalty as being in possession of an SBR. Some potential actions one could take to avoid this is to store the replaced upper or barrel in a separate location like another safe or another room. However, whether or not the storage is separated enough to avoid the possibility of it being construed as “constructive possession” or “constructive intent” isn’t well defined. Alternatively, one could get rid of the replaced barrel or upper receiver to eliminate that potential risk. As one might suspect, the cost associated with obtaining the parts, gunsmithing services, additional storage devices, or disposal of the replaced parts rests entirely with the owner.
Folks who go with option 1 should check to ensure the firearm also meets the overall length of 26” or greater requirement for a rifle. It is unclear if this requirement is measured with a telescoping or adjustable stabilizing brace extended or retracted. Airing on the side of caution and ensuring that requirement is met with brace retracted is probably a good idea.
Option 2, remove the brace so that it cannot be reattached. This option is about as clear as mud. The only thing that is clear is that removal of the brace is not sufficient. One option here is to modify the brace so that it can not be reattached which means turning the brace into unusable trash since it means it can’t be attached to anything. Another option might be to alter the firearm so that a brace can not be attached to it. This might be achievable by replacing the buffer tube with a tube that has no attachment surface. Like option 1, this could create the “constructive” possession or intent risks if one decides to hold on to the replaced parts. And once again, the burden of cost related to the modification rests entirely on the owner.
Option 3, forfeit the firearm at a local ATF office. I can’t imagine any scenario where this is a good idea, but it may be the right or only viable option for compliance with this rule to some folks. While I think it’s in poor taste to offer this option without fair market value compensation for the item, I’m not surprised by it given the bump stock ban set the precedent for it.
Option 4, destroy the firearm. My opinion and interpretation of this option is identical to option 3. Folks who for whatever reason decide to go this route should be aware that there are specific requirements to ensure the firearm is properly destroyed. Failure to meet those requirements, could result in the firearm being considered unserviceable rather than destroyed. Unserviceable firearms are still regulated as plain old firearms under Federal Law. Which means that possessing the unserviceable SBR carries the same criminal penalties as possessing an SBR.
Option 5, register the SBR via an e-Form 1 during the 120 day compliance period. The compliance period began when the rule was published in the Federal Register on January 31, 2023. Which means that folks have until May 31, 2023, to complete and fire the e-Form 1. During this time period, the $200 tax stamp fee is waived for those who possessed the firearm with the attached stabilizing brace prior to January 31, 2023. This option expands the legal quagmire created by this rule beyond the visible horizon. I’ll do my very best to convey my understanding and perhaps more importantly my lack of understanding as I can see the allure that this option may hold for many.
The e-Form 1 registration is a lengthy process that requires submission of fingerprints, passport photos, and personal information that is sent to both the ATF and the local head of law enforcement. Depending on one’s jurisdiction, the local head of law enforcement may be part of the approval process which is not guaranteed. This brings up a valid concern. What happens if the registration is denied? The stark reality is that one will be in illegal possession of an SBR. One could be prosecuted for it. Perhaps one will have the option to pursue one of the other options to achieve compliance. Will one be allowed to appeal the denial? Or an opportunity to clear up something in their background that turned up during the background check that resulted in the detail and apply again? If so, will one then be responsible for paying the $200 tax stamp fee? While sometimes in error, denials do happen. Being prepared to deal with a denial is a good idea.
Assuming one is approved, does one have the understanding of the risks and responsibilities that come with owning and possessing an NFA item? I suspect that this will be the first NFA item for several folks who chose this option. There is some education that needs to happen here. Ideally that education should happen before pulling the trigger. But remember there is a limited window of opportunity for this option and education takes time as does obtaining fingerprints, passport photos, and submitting the e-Form 1.
An important limitation for the registration option, is that the firearm with the stabilizing brace must have been in possession prior to January 31, 2023. I could be wrong here, but folks who came (or come) into possession of one of these items after that date are most likely in illegal possession of an SBR which may not be registered via this option. Those who fall into this category would best be served by consulting with an attorney to determine what their best course of action may be.
Another important limitation is that the registration process has a very narrow scope that allows for registration of the SBR to a trust. It is my understanding that evidence that the firearm with the stabilizing brace was owned and possessed by the registering trust prior to January 31, 2023 is necessary.
If all of this wasn’t messy already, there are still a number of curve balls that can potentially make things even messier. For example, let’s say one decides to register the SBR and starts the process, what happens if a judge who is presiding over one of the already filed lawsuits orders an injunction? Additionally, the ATF has been updating (and consequently removing) FAQs on their websites (including the e-Form) website which has caused a lot of confusion. While the FAQs are not officially published rules and regulations, common folks look to them for guidance in maintaining compliance with the official rules and regulations. Mistakes or changes in those FAQs could lead to actions or practices that land one in hot water. While that might be much easier for a defense attorney to build a good case, it can still be a costly process that isn’t risk free.
At the risk of sounding like a broken record, obtaining legal advice from a licensed attorney is a good idea regardless of which option is taken. Every single option, even those not mentioned in this post, carry some manner of legal risk. Being aware and understanding that risk is critical. As I’ve said, ignorance, while it may be blissful, is not a viable defense strategy in a court of law.
For those of you who don’t have a firearms or self defense legal plan and policy, I will once again encourage you to consider a plan from Right To Bear. It is a great value with an extremely competitive price starting at $11/month or $125/year that includes a $2,000,000 liability policy without a repudiation clause and allows one to pick their own attorney. In the event any of y’all decide this is for you, don’t forget to use the code “UNCLEZO” at ProtectWithBear.com to receive 10% off the first year.