Possible (likely) ruling by ATF would make existing firearms with arm braces NFA weapons subject to registration and taxation

by the Shoot On staff

UPDATE: As of late December 23, 2020, the BATFE has issued a formal withdraw of the Objective Factors for Classifying Weapons with “Stabilizing Braces” guidance cited in the following article. We will assume this withdraw notice is temporary, as BATFE Associate Deputy Director Marvin G. Richardson, in the Withdraw of Guidance, states: “Upon further consultation with the Department of Justice and the Office of the Deputy Attorney General, ATF is withdrawing, pending further Department of Justice review, the notice and request for comments entitled “Objective Factors for Classifying Weapons with ‘Stabilizing Braces’,” that was published on December 18, 2020.” We are aware of no further details as of this date.

December 18, 2020 – We knew it was coming—if not spurred by the often vague and subjective sensitivities within the Bureau of Alcohol, Tobacco, Firearms and Explosive then as a political positioning gambit for an incoming administration that has promised increased firearm regulations. Whatever the case may be, the ATF has officially published through the Federal Register its proposed “Objective Factors for Classifying Weapons with Stabilizing Braces.”

The irony is that “objectivity” seems to be the antithesis of the ATF proposal, just as it has been all along with bureau’s treatment of pistol stabilizing braces.

Pistol stabilizing braces entered the firearm marketplace as an ATF-approved means of providing disabled shooters who could not otherwise shoulder AR-style rifles the ability to safely and effectively shoot AR-platform firearms with pistol-length barrels (barrels less than 16 inches). SB Tactical co-founder Alex Bosco developed the pistol stabilizing brace category, which has become extremely popular with AR enthusiasts across the country.

The ATF guidance on pistol stabilizing braces has always been a bit murky in terms of permitted usage parameters, and this has caused ongoing problems for manufactures of take-off pistol stabilizing braces, manufacturers of AR pistols featuring stabilizing braces, and AR pistol consumers who deploy stabilizing braces. In short, the whole AR pistol/stabilizing brace thing has been a rolling mess for many people due to the ATF’s inability or seeming unwillingness to provide clear, concise, and objectively measurable guidance on the matter.

In early August 2020, the ATF tipped its hand when it issued a Cease-and-Desist letter to Q, LLC to stop the manufacture of the company’s Honey Badger Pistol. The issuance created an uproar throughout a firearm community already anticipating a future move by the ATF to curtail AR-platform pistols featuring stabilizing braces by classifying them as NFA (National Firearms Act) weapons subject to registration and a $200 tax stamp like that imposed on short-barrel rifles, short-barrel shotguns, and suppressors. Although the ATF later temporarily suspended its Cease-and-Desist directive to Q, LLC on October 9, 2020, for 60 days, industry observers concluded the 60-day moratorium was likely political in nature due to the upcoming presidential election.

That notion may have proven well-founded as the election is now concluded and the assumption is that the Biden-Harris ticket, which has promised sweeping regulations and taxation of the firearms industry and its consumers, will take office January 20, 2021.

Now, the ATF has issued its “Objective Factors for Classifying Weapons with Stabilizing Braces” proposal, indicating that it fully intends to reclassify AR-platform pistols featuring stabilizing arm braces as NFA weapons subject to registration and taxation. That the bureau released this proposal in the waning days of 2020 and after the presidential election underscores the idea that the ATF has mixed politics with its decision to move forward on this matter.

Even more objectionable to gun enthusiasts is that the ATF is only providing an abbreviated public comment period on the proposal, beginning as of this writing (December 18, 2020) and extending only to January 4, 2021. That is a mere 17 days for the public to weigh in on this proposal. The shortened public comment period, coming in the last two weeks of the year and during the holiday season when many businesses are scaled back and consumers are otherwise occupied, also hints that the ATF is not operating with the expected “good faith” the American people should expect or demand.

Furthermore, despite the proposal’s title, the ATF seems intent to continue obfuscating its guidance on firearms fitted with pistol stabilizing braces. In its proposal the ATF states:

“ATF has observed that the development and production of firearms with arm braces has become more prevalent in the firearms industry and, relatedly, that requests for classifications for this kind of firearm design have also increased. Therefore, ATF is publishing this notice to aid the firearms industry and public in understanding the objective design features that FATD considers when evaluating firearm samples submitted with a stabilizing brace or similar attachment.”

The proposal, however, details little in the way of objective measures. To the contrary, the proposal takes broad positions on features and accessories that could constitute, in the aggregate, an AR pistol being classified as an NFA weapon without actionable specifications vital for the manufacturer or consumer to consider. Such generalizations without specifications include:

  • Type and caliber
  • Weight and length
  • Length of pull
  • Attachment method
  • Stabilizing brace design features
  • Aim point
  • Secondary grip
  • Sights and scopes
  • Peripheral accessories

In short, there are no specifics outlined in the ATF proposal, making it impossible for public commenters to craft informed responses and objections to the proposal.

Supposedly, to create a “go along to get along” incentive to the estimated 3 to 4 million owners of AR pistols with stabilizing braces, the ATF offers the following:

“This notice also outlines ATF’s enforcement priorities regarding persons who, prior to publication of this notice, made or acquired, in good faith, firearms equipped with a stabilized brace. Finally, this notice previews ATF’s and the Department of Justice’s plan to subsequently implement a separate process for current possessors of stabilizer-equipped firearms to choose to register such firearms in compliance with the NFA, including an expedited application process and the retroactive exemption of such firearms from the collection of NFA taxes.”

Translation: if you want to keep your arm-brace-stabilized AR pistol that you have owned prior to December 18, 2020, you may be exempt from the NFA tax, but you will have to register the firearm via established NFA compliance protocols.

From our perspective, this is a proposal that has already been decided upon by the ATF and the bureau is simply going through the motions of the public comment period. That said, we encourage all our readers to make their voices heard for the record. Go here and follow the directions for submitting your comment as soon as possible, keeping in mind that the comment period ends January 4, 2020. You also need to contact your representatives and let them know your feelings on this ATF proposal. The Firearms Regulatory Accountability Coalition has a quick link to contact your Congressional representatives, the DOJ, and the White House. You can contact the White House comment line directly at 202.456.1111.

This is all a slippery slope, in our opinion, and will likely be only the first of many firearm regulatory salvos fired our way in the coming months and years given the stance of the assumed incoming administration.

Silence is complicity. Inaction is surrender. We ask you to join the firearms industry and the millions of Americans fighting for our 2nd Amendment guarantees by keeping informed and making your voice heard.

Shoot On Staff
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