On January 13, 2023, the Attorney General signed ATF final rule 2021R-08F, “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces,’” amending ATF’s regulations to clarify when a rifle is designed, made, and intended to be fired from the shoulder. This rule will go into effect on the date it is published in the federal register – which has not yet happened as of this date.
Over the past several years, pistol versions of rifle platforms sporting stabilizing braces have proliferated. This was thanks in large part to the ATF’s apparent approval of stabilizing braces in the form of several position letters given to brace manufacturers. The braces were originally created with the purpose to assist disabled individuals, including veterans, fire pistol versions of AR and other rifle platforms with one hand by distributing the weight and recoil forces across the forearm. The ATF’s position letters stated that firearms equipped with such braces were likely not “short-barreled rifles” as that term is defined in the Gun Control Act of 1968 and the National Firearms Act of 1934, and so did not require the stricter controls on transfer and ownership which these acts impose on short-barreled rifles.
Now, years after millions of firearms owners acquired various pistols equipped with stabilizing braces in reliance upon the ATF’s position letters and the reassurances of brace and gun manufacturers, the ATF has passed a regulatory definition change that will make the majority of these firearms subject to the GCA and NFA – and their owners subject to severe fines and felony charges.
The new rule accomplishes this by changing the definition of a “rifle” under the GCA and NFA, and more specifically, what it means for a firearm to be “designed or redesigned, made or remade, and intended to be fired from the shoulder.” The rule adds language to this definition that includes a weapon that is equipped with an accessory, component, or other rearward attachment (e.g., a “stabilizing brace”) that provides surface area that allows the weapon to be fired from the shoulder.
The ATF did away with previously proposed “point system” schemes – making the guidance of the proposed Worksheet 4999 mostly useless for determining whether your braced firearm is now an NFA/GCA controlled short-barreled rifle. Instead, highly subjective language has been added to the definition of the term “rifle,” making the question of whether your braced pistol can land you in prison largely up to the whims of ATF agents, prosecutors, and federal judges.
The new definition of what is a “rifle” (and thus what constitutes a short-barreled rifle) now includes the following;
(1) For purposes of this definition, the term “designed or redesigned, made or remade, and intended to be fired from the shoulder” shall include a weapon that is equipped with an accessory, component, or other rearward attachment (e.g., a “stabilizing brace”) that provides surface area that allows the weapon to be fired from the shoulder, provided other factors, as described in paragraph (2), indicate that the weapon is designed, made, and intended to be fired from the shoulder.
(2) When a weapon provides surface area that allows the weapon to be fired from the shoulder, the following factors shall also be considered in determining whether the weapon is designed, made, and intended to be fired from the shoulder:
(i) Whether the weapon has a weight or length consistent with the weight or length of similarly designed rifles;
(ii) Whether the weapon has a length of pull, measured from the center of the trigger to the center of the shoulder stock or other rearward accessory, component or attachment (including an adjustable or telescoping attachment with the ability to lock into various positions along a buffer tube, receiver extension, or other attachment method), that is consistent with similarly designed rifles;
(iii) Whether the weapon is equipped with sights or a scope with eye relief that require the weapon to be fired from the shoulder in order to be used as designed;
(iv) Whether the surface area that allows the weapon to be fired from the shoulder is created by a buffer tube, receiver extension, or any other accessory, component, or other rearward attachment that is necessary for the cycle of operations;
(v) The manufacturer’s direct and indirect marketing and promotional materials indicating the intended use of the weapon; and
(vi) Information demonstrating the likely use of the weapon in the general community.
Undoubtedly, the millions of owners of braced pistols are scratching their head trying to figure out if, in fact, their pistol is now an NFA/GCA controlled short-barreled rifle. The 293-page Final Rule documentation makes clearthat most, if not ALL, firearms equipped with current commercially available stabilizing braces – including those the ATF previously issued position letters for such as the popular SB-15 model – are now “rifles.” Make no mistake - if your firearm is an AR or AK-platform firearm and has a barrel less than 16”, this new rule means that attaching most common stabilizing braces makes your firearm a short-barreled rifle. Owners of other firearms based on different rifle platforms are also likely in the same boat.
While the Final Rule documentation is too voluminous to summarize here, there are several key points to note;
The ATF specifically stated in the final rule that position letters issued in the past which approved specific stabilizing braces and firearms equipped with stabilizing braces are retracted – including the popular SB-15 style brace.
The Final Rule documentation included several tables listing the weights, barrel lengths, and length-of-pull for multiple types of rifles when equipped with a standard stock. This table will almost certainly guide the analysis of judges when applying factors (i) and (ii) to a firearm. These tables include the overall lengths, barrel lengths, and weights of common short-barreled rifles such as the Honey Badger, Sig MPX, and CZ EVO Scorpion. This means that the criteria for “weight” and “barrel length” will NOT be pegged to full-size rifles, and so a firearm’s smaller size compared to a full-size rifle will likely NOT be enough to satisfy these factors.
The Final Rule documentation does not mention holographic sights as an example of sights with eye-relief that requires shouldering the firearm, and so these type of sights MAY not count against a braced firearm when addressing factor (iii).
The Final Rule includes a discussion of AK-platform firearms not requiring buffer tubes to function. It is safe to say that while AR-platform pistols are likely safe to include buffer tubes protruding from the rear of the firearm, a similar tube on an AK-based firearm will likely violate Factor (iv).
The ATF relied on dozens of Youtube videos, firearms reviews, industry publications and advertising to show that most currently available stabilizing braces are commonly used to fire braced pistols from the shoulder. This makes factors (v) and (vi) the effective catch-all and beyond the control of the gun owner who has an otherwise compliant stabilizing brace setup.
The Final Rule includes discussion of pistols that are light enough to hold with one hand having a stabilizing brace (i.e. handguns such as Glocks, S&W Shields, Sig p365s, etc.) do not need a stabilizing brace to control singlehandedly, and so the brace can only be for use as shoulder support. There is a similar discussion for over-molded braces for these handguns which also concludes that such a brace is only for purposes of providing shoulder support. These firearms will likely be considered short-barreled rifles.
So what now, for the millions who own these firearms? Well, the Final Rule provides a few solutions;
Destroy the firearm completely and/or discard it
Surrender the firearm to law enforcement
Bring the firearm into compliance by either equipping a barrel of at least 16” or removing the stabilizing brace and discarding and/or destroying it
Submit a Form 1 application to create a short-barreled rifle in accordance with the NFA/GCA
There will be a 120-day grace period from the date the law is recorded in the Federal Register to perform any of these actions. Anyone submitting a Form 1 for a firearm with a stabilizing brace must have acquired the firearm and/or brace BEFORE the grace period begins, but will not have to pay the standard $200.00 application fee for the Form 1. Anyone removing the brace to bring the firearm into compliance MUST either discard the brace or render it unable to be reattached to the firearm – simply taking the brace off and keeping it somewhere else in your home is NOT sufficient.
As many owners of braced firearms surely are, you may be wondering what to do next, or whether this rule will in fact affect you. As leftists, activists, and members of vulnerable communities, we must assume this rule will be weaponized against us and applied as strictly as possible. The best practices and recommendations for us are different than those of fascist and right-wing allies of cops and state oppression which you may encounter online or in conversation at the local gun store. Please consider the following, comrades;
Don’t get yourself saddled with federal felony charges that will eliminate your firearms rights, along with a prison sentence and hefty fine. Hiding a short-barreled rifle in your home or your gun safe hoping it isn’t discovered is a recipe for disaster for a leftist –unrelated and/or retaliatory raids on your residence could uncover the firearm and/or brace, bringing terrible consequences.
Keep in mind that a pistol brace transferred to a non-NFA controlled rifle with 16” barrel is legal, however unless the brace is somehow permanently and irreversibly joined to the rifle the ATF will likely still interpret the possession of the brace and a pistol that can readily accept the brace “constructive possession” of a short-barreled rifle.
Err on the side of caution – if you have a firearm of any type with a stabilizing brace of any kind, assume that this rule will impact you and that the firearm is now a short-barreled rifle.
Gun owners in liberal districts are likely to be subject to higher scrutiny, even assuming conservative courts rule favorably. A ruling in Texas that an AR equipped with an SB-15 is not a short-barreled rifle is unlikely to protect a comrade in California with an identical setup.
Consider your comfort-level with going the route of seeking Form 1 approval for a short-barreled rifle, as well as the potential that your State or local government might outlaw these firearms. If you are in an area where short-barreled rifles are legal and are comfortable with the in-depth background check and registration at the Federal level, then proceed – experience navigating the Form 1 process is valuable to our community, and the waiver of the $200.00 fee alleviates barriers to obtaining this experience.
Be mindful of the heightened legal restrictions for transferring, carrying, keeping, and using NFA/GCA controlled firearms if you decide to get Form 1 approval for your firearm.
Gun trusts are a useful tool to aid in the approval process for submitting a Form 1 application, and alleviate many of the legal concerns around owning and transferring NFA/GCA-controlled firearms. If you can transfer the pistol with stabilizing brace to a properly created gun trust before the date the new rule is recorded in the Federal Register (i.e. NOT within the 120-day grace period) and document this transfer/ownership by the gun trust, then the application can be submitted in the name of the trust. HOWEVER if the transfer is not completed and evidenced before the date the new rule is recorded, then the application can only be submitted by the individual who owns the pistol.
While your Form 1 application is pending, then assuming you submitted the application within the 120-day grace period you may keep the firearm as-is. You will need to keep a copy of proof of submission of the Form 1 application while approval is pending, and apparently will not need to disassemble the firearm – even if approval takes longer than the 120-day grace period (which it almost certainly will).
The ATF has answered many of the common questions and concerns firearms owners have, though these recommendations should not be substituted for legal advice to address your specific situation and firearms setup.
Remember comrades, we protect us – resist the temptation to post images or videos of firearms with stabilizing braces on social media until you or your comrade who owns the firearm decide how to proceed. Do not publicize that you or a comrade own a firearm equipped with a brace. Under no circumstances should members bring firearms with stabilizing braces to range days, political actions, protests, or any officially sanctioned SRA activities at this time.