Updated January 24, 2023
Trying to figure out where the laws and rules stand with the ATF is like playing whack-a-mole. Just when you think you’re complying with that fiefdom’s arbitrary proclamations, it changes its collective mind and now your legally purchased firearms are essentially turned into contraband overnight.
Yes, the ATF has once again decided to legislate through rule re-interpretation. If you remember, the ATF has changed its mind several times about pistol stabilizing braces – first they weren’t NFA firearms, then they were, then they weren’t. Once this new rule is published in the Federal Register (likely this week) most pistols with braces will be considered NFA firearms and will require ATF registration and a tax stamp for legal possession.
According to the ATF’s website, 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.
The rule doesn’t say “all braces attached to pistols are SBRs.” Instead, it basically says (in 293 pages) that “we’ll know it’s an SBR when we see it.” There are a bunch of factors they’d consider, including the design of the brace and the design of the overall weapon. It’s going to be a nightmare.
But the rule specifically says that a brace specifically designed for and used by a disabled person that is affixed to the arm in an approved manner (not shouldered and not amenable to shouldering), is not an NFA firearm.
So, there’s that.
This rule is going to take some time to really analyze, but, at this point, I’d advise anyone who isn’t disabled to the point where they can’t use a pistol without a brace – and who wants to keep the weapon in its current configuration- to register the firearm with the ATF as an SBR during the 120 day amnesty period that begins when the rule is published in the Federal Register. The Form 1 can be done online through the ATF’s eForm system and the $200 tax is waived during this period. It doesn’t matter whether you’re registering it in an individual name or a gun trust’s name – the eForm system can still be used.
*** HOWEVER, the ATF is making it extremely difficult to register a pistol/brace SBR in the name of a trust. The trust must have been in existence prior to the date the rule was published in the Federal Register AND you have to prove to the ATF that the trust possessed the offending pistol/brace combo prior to that date. And they blatantly say that they’re going to look at everything you submit with a fine-toothed comb. So, basically your gun trust has to allow possession of NFA and non-NFA firearms and you have to have some sort of schedule attached to the trust that can list non-NFA items and your pistol and brace need to be on that schedule. I, personally, don’t believe the ATF has the legal authority to require that documentation since they have no legal right to know anything about your non-NFA firearms, but that’s for a court to decide. In the meantime, we have to jump through their hoops. (We do offer a trust that fits that bill, but it’s too late to get one in time to take advantage of the registration grace period. But it may be an option for later). So, if your gun trust or “documentation” won’t pass the ATF’s new arbitrary and capricious internal guidelines regarding trusts, you’ll need to register the firearm as an individual for free during the 120 day amnesty period, and then, after you get the tax stamp, pay $200 to transfer it to your trust via a Form 4.
Alternatively, you could affix a 16-inch or longer rifle barrel to the gun, or remove the brace and/or any accessory the ATF frowns upon in the rule (there are even pictures in the rule!) and destroy it. Keeping the offending brace and the pistol in your home and/or gun safe would be considered constructive possession of a contraband NFA firearm (felony).
Or, the ATF suggests you could just throw your investment away and destroy the weapon in accordance with ATF instructions or turn the whole thing over to your local ATF office.
Other gun lawyers and I believe that, given the chance, the ATF will determine that 99% of all brace/pistol configurations are SBRs. That’s what they’ve been tasked to do by the current administration. So, if you play stupid games, you’ll likely win stupid prizes.
If you live in Florida and decide to register your newly designated SBR with the ATF, you may want to consider holding it in a gun trust. You can learn more about gun trusts here.
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Ready to make sure everything’s in order for your loved ones in the event you become incapacitated or die? Give Manasota Elder Law a call at 941-444-5958. We’ll help you determine whether you’re all set, or whether there are still some things that need to be done to protect what’s most important to you … your family.