Time's up: Is your AR-style pistol brace registered as short-barreled rifle?
Note: This information is for educational purposes only and is not intended as, nor should it be considered, personal legal advice.
If you currently own an AR-style pistol and you also possess a brace that can be attached to that pistol, then you are subject to felony prosecution as of the end of May unless you file, or have filed, paperwork to register it as a short-barreled rifle.
The easiest way to remove your risk is to remove the brace from the gun and then remove it from your possession. In spite of what the Director of the BATFE told Congress, simultaneously possessing the gun and the brace is “constructive possession,” which is legally the same as having the brace attached to the gun.
Suppose you have a friend like me, who never jumped onto the pistol brace bandwagon and only owned more traditional rifles, carbines, and pistols, or who owns no guns at all. In that case, giving or selling your pistol brace to them is a simple way to avoid any criminal liability while we wait for the various legal challenges to the new rule to make their way through the courts. The only qualifier is that the brace must be out of your possession and control.
If you give the brace to your mom, and she tells the nice BATFE agent that she’s just holding it for you until you want it back, you’re not protected. Whoever you give or sell your brace to must own – and legally possess that brace.
There can be an understanding that if the courts invalidate the BATFE’s new “Final Rule,” your friend will give or sell the brace back to you, but it can’t be that you’re simply storing the device away from your home. The same goes for storing the brace in a locker at your range or in your storage unit. You must no longer own, possess, or be in control of the brace, and whoever does possess it must understand that it’s theirs now, not yours. You can’t have ready access to it, and you definitely can’t reattach it to your pistol until the courts declare the rule unconstitutional or it’s otherwise nullified.
Those of you who want to insist that unconstitutional laws are already null and void, remember that there are hundreds of people rotting in prison who acted on a similar belief. Until law enforcement and the courts agree that a law or regulation is unconstitutional, you can still be prosecuted and imprisoned.
To be certain that you are in compliance with the rule, it’s a good idea to replace any “brace specific” receiver extension (buffer tube) with a standard pistol version.
As long as the person who possesses the brace does not have any pistol the brace can be attached to, it’s perfectly legal. There is no law or regulation restricting the possession, sale, or transfer of a pistol brace. As mentioned, Steve Dettelbach, the director of the BATFE, recently gave sworn testimony to Congress stating that simply removing the brace from the pistol and keeping them apart was all that needed to be in compliance with the new rule. That statement does not agree with the clearly stated requirements laid out in the BATFE’s actual “Final Rule.
The “Final Rule” offers only the following options for bringing a pistol-braced firearm into compliance:
- Scenario 1: Turn in the entire firearm with the attached ‘‘stabilizing brace’’ to ATF (Who would do that?);
- Scenario 2: Destroy the whole firearm (Again, why would anyone do that?);
- Scenario 3: Convert the short-barreled rifle into a long-barreled rifle (And get rid of the short barrel, because if you keep it, that is probably still “constructive possession.”);
- Scenario 4: Apply to register the weapon under the NFA (Paperwork must be filed before May 31, and there are other factors involved, so do your homework.); or
- Scenario 5: Permanently remove and dispose of, or alter, the ‘‘stabilizing brace’’ from the firearm such that it cannot be reattached. (Emphasis added.)
Other guidance from the BATFE offers slightly different terminology in the options. For example, on BATFE’s website, they offer a Frequently Asked Questions section that says, “Permanently remove or alter the ‘stabilizing brace’ so that it cannot be reattached,” which, thanks to the use of the word “or” instead of the word “and,” could be interpreted to leave the door cracked for the “just remove it” claim of Director Dettelbach. That BATFE website guidance isn’t the rule, though. The actual language of the “Final Rule” is what is going to be applied in enforcement and the courts, and it doesn’t leave any room for a person to keep the brace and the pistol without permanent modification.
Reports indicate that few people have thus far taken advantage of the “free” registration option, and it’s important to note that registration as an SBR is not an option in the several states that forbid possession of an SBR. BATFE will reject registration applications from residents of those states, and there’s a chance they, or state agencies, could then use the application itself as evidence of the person’s possession of an unregistered, illegal SBR. Folks in those states need to carefully examine their remaining options. There are also some gun and brace combinations, particularly those sold together as a unit, which are not eligible for the “remove and dispose of” option, so you need to verify how yours is categorized. Those that are not eligible for “remove and dispose” action are good candidates for filing a Form 1 and getting a free stamp.
The Federal Appeals Court for the Fifth Circuit has issued an Injunction Pending Appeal in a lawsuit brought by the Firearms Policy Coalition and several co-appellants. This injunction prevents the new rule from being enforced against the appellants, but it’s unclear exactly who is protected under the injunction. It won’t apply to anyone outside of the Fifth Circuit and might only apply to actually named appellants in the case, which is no help at all to average Joes’ who happen to own these items. We’re hoping for some clarification on this issue very soon, but until that clarification comes out, assume that the injunction doesn’t apply to you because it probably doesn’t.
This brings us right back to my initial suggestion: Remove the brace and “dispose” of it by selling it or giving it to someone who does not possess a pistol to which the brace could be attached.
That should protect you from prosecution until the whole stupid mess can go through the courts and hopefully get resolved in our favor. There’s also legislation pushing through the House, but it’s unlikely to make it through the Senate, and Joe Biden will never sign it, so don’t count on that.
I think it’s very likely we’ll see at least a few Second Amendment martyrs prosecuted over this. Don’t be one of them.
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