Let me start with the standard disclaimer to make the boss happy. I am not a lawyer, but I did sleep at a Motel 6 once. If you take my musings that follow as legal advice, you deserve what you get. Laws change, courts issue rulings, injunctions, and restraining orders — over time, this information too will be out of date. Please read the article and use the information as a starting point when consulting legal counsel before acting on any information that may be contained here.
Social media is full of beginners and experts… most of them are wrong. The ATF and its “guidance,” or lack of it, have not improved the situation. On top of that, the courts have started to weigh in with decisions that affect the ATF’s ruling, leaving most who think they have a handle on the ATF/Justice Department and pistols braces off base with any advice they may give.
So, let’s back up and see where all this mess started and what we can detangle. First, did you know there was an amnesty and free tax stamp to register your pistol brace-equipped firearm into an SBR? While the ATF is good about making rules and threats, it seems it forgot to use its big boy voice when talking about a free tax stamp and amnesty… Thus, chaos and confusion have ensued.
The History
The problem started in mid-December 2020, after the ATF issued a formal notice regarding pistol braces. Lately, the ATF has tried to venture into making laws, rather than rulings under the guise of “clarifications.” That’s according to the court challenges and temporary injunctions that have been issued, but we will get into that later. In the ATF’s notice, it reclassified pistols equipped with stabilizing braces as NFA items subject to registration and a tax stamp.
There has been some back and forth, partly due to politics and pro-2A groups such as the Second Amendment Foundation with its lawsuits against the ATF for its failure to follow the law regarding notice to the public, comment periods, etc. This gave manufacturers and gun owners more time and opportunity to ensure pistol braces “were in common usage.”
Obviously, the ATF (and the political pressure it was under) did not retreat. Instead, the Justice Department reissued its rules (2021R-08, Factoring Criteria for Firearms with Attached Stabilizing Braces) in early June of 2021 making pistol brace-equipped firearms NFA items — essentially reclassifing them as Short Barrel Rifles (SBRs). The ruling said the brace was intended to be fired from the shoulder, in opposition to the ATF’s previous ruling that shouldering a pistol brace did not make it an SBR. Eventually, the ATF was forced to withdraw its ruling, but not before gun owners made their voices heard.
However, predictably, no level of public outcry would sway the ATF. I talked to two former directors within the ATF. Both indicated the fight was rigged, and politics were the impetus for the ATF’s reversal on braces. Unfortunately for the pro-Second Amendment forces, Factoring Criteria for Firearms with Attached Stabilizing Braces was adopted as 2021R-08F.
Arm Brace Ruling and Amnesty
The guidance given by the ATF on which guns would be reclassified as SBRs was fuzzy to say the least. Every post on social media accuses every firearm pictured with an arm brace to be an SBR and the person posting it to be in violation of the law. “If the ATF sees this post, you’re going to jail!”
The Justice Department announced its “New Rule to Address Stabilizing Braces, Accessories Used to Convert Pistols into Short-Barreled Rifles” on January 13, 2023, and published it on January 31, 2023. The rule went into effect immediately upon publication. However, a 120-day amnesty and compliance period was also offered. Therefore, the amnesty will expire on May 31, 2023.
What does the ATF consider when making an SBR determination?
The ATF stated it will make its decision as to whether a firearm should be ruled as an SBR on a “case-by-case” basis, depending on the configuration of the gun. Previously, the ATF used Worksheet 4999 in its determinations. However, in this case the ATF did not offer a Worksheet 4999, but it did adopt much of the same criteria. While the ATF now considers stabilizing braces to be stocks, it attempted to make exceptions for certain classes of people with disabilities. This opened a new can of legal worms and challenges that we will not cover here.
Here are the technical specifications the ATF has stated it will use. The ATF’s determinations are based on its new definition of “rifle.” As such, the ATF will apply the new definition coupled with five primary factors to determine whether a braced pistol should be classified as an SBR.
The ATF’s new definition of a rifle classifies a firearm that is equipped with an accessory, component, or other rearward attachment such as a stabilizing brace and provides a surface area that allows the weapon to be fired from the shoulder, along with other factors that indicate that the firearm was designed, made, and intended to be fired from the shoulder, as an SBR.
The ATF’s factors are:
- Length and weight – How similar are the weight and length of the braced pistol to that of a similarly designed SBR?
- Trigger position – How close is the trigger to the center of the firearm with all accessories extended (like a rifle)? Is the trigger near the rear of the gun (like a traditional pistol)?
- Optic design – How are the sights or scope designed to be used (i.e., intended to be raised to the shoulder to use effectively)?
- Manufacturer’s marketing – How does the manufacturer promote the use of the firearm?
- Common use – How is the gun community using the firearm?
Note: Without a rearward attachment, the firearm should not be classified as an SBR. Likewise, a rearward attachment that is “required for the cycle of operations of the gun” (e.g., a standard 6–6.5-inch buffer tube on an AR-style pistol) — even if it provides a surface area that allows the firearm to be shoulder-fired — should not result in the firearm being classified as an SBR.
Who is impacted by the final rule?
Unlike the final rule on frames and receivers, which primarily impacted dealers and manufacturers, the pistol brace rule will impact millions of gun owners. These include:
- Unlicensed possessors (folks who have not registered the “SBR”)
- Non-Class One or Class 2 FFLs (dealers or manufacturers)
- Certain qualified FFL importers or manufacturers under the GCA
- Certain governmental entities
Compliance With the New Rule
It is important to note that states and certain counties or municipal laws will also dictate whether a firearm in a particular location is legal. This article only details the requirements under federal law.
The Justice Department has outlined four ways you can ensure compliance:
- Registration
- Disassembly
- Destruction
- Submit the firearm to the ATF for a determination
Unlike the ATF’s ruling on bump stocks, where the mere possession of a disassembled bump stock and a firearm that it could be attached to constitutes a machine gun, there is no such provision in the pistol brace ruling. Therefore, disassembly and possession of an unattached brace does not constitute possession of an SBR or require any particular tax stamps. Given the rulings and temporary restraining orders issued from the Fifth Circuit Court of Appeals, disassembly and storing the parts may be the route many people choose, but should they?
ATF Pistol Brace Rule and SBR Amnesty
When the rule was published on January 31, 2023, in addition to the amnesty period a free tax stamp was offered. The stamp is not for any SBR. This free stamp only covers NFA SBRs that were previously classified as stabilized pistols, not traditional SBRs (such as a short-barreled rifle with a stock). Like the 120-day amnesty, the period to apply for the free tax stamp (Form 1) expires on May 31, 2023. After May 31, you will be required to pay the normal $200 for the stamp.
Many will not want to subject themselves to a government “registration” and would prefer to wait and see what happens in the court. I can’t say they are on a wrong path, but there may be a loophole some will want to take advantage of. While you can only get a free tax stamp for braced pistol, after May 31, 2023, there will not be a distinction between a braced pistol and an SBR. That means (at least according to my understanding) a braced pistol would then be eligible to be equipped with a traditional stock under the tax stamp that was issued for free… Now, if the new stock changes the overall length of the firearm, you will need to submit a pre-approval form to the ATF.
Nothing with the government is ever simple when it comes to firearms, and this is no exception. Some will choose to go the Form 1 route and get the free tax stamps. Others will shun the registration, and I fully understand and respect both decisions. Make your own choice. Make an informed decision after competent legal advice. Stay safe…
I’m considering the purchase of a pre-ban SIG MCX SPEAR-LT 7.62×39, 11” 30RD CY and understand I need to complete the ATF FORM 1 required in the state of MA. With so much going on with licensing and ownership of such a weapon I wonder if the purchasing of such may be for not especially in that such of a pre-ban requirements prevents me from selling the weapon. Can someone please spell out what kinds of roadblocks and or denials that I will most likely run into when filling out the required ATF Form 1 and any reason for denial of such. Please explain more about a “brace”. Also, there is a very real possibility of relocation to another state within the next 3 to 4 years. Would or could that ever be an issue? Any and all advice is greatly appreciated!
ATF must be disbanded and done away with, along with the Federal Bureau of Idiots! Trust has been completely destroyed. Never Again
The curveball here is the delay – knowing what the current time for approval was running before amnesty was offered is going to show there is no possible way they can get these all approved before the 88 day time out. Meaning, once 88 days passes without the permit being approved, it is automatically rejected and has to be re-submitted.
During that window of time – where you have provided the ATF with everything they needed to process you, you have also provided them with everything needed to prosecute you except the actual firearm. So at their discretion, the can allow you to try again or take enforcement action. I’m not saying its a trap, I am simply saying people who make traps for a living would be proud of it.
What few people are acknowledging is to that take your registered SBR across state lines, legally you must ask & receive permission from the ATF BEFORE doing so. Want to take your SBR South for the Winter, or North from the summer? Living in Ohio and want to harvest a deer in Pennsylvania with your registered SBR. Living in Northern SC and want to shoot at a range in Charlotte? Best be asking and OBTAINING permission from the ATF beforehand. If it was just registering the pistol as a SBR is one thing. Having to communicate with the ATF every time I want to cross state lines with my SBR…nope.
My brace has been removed and will remain removed until the law suites run their course.
Did someone call Q Honey Badger?
love this post
Casey Fields sounds vaccinated
THE ATF SHOULD GO AFTER THE THOUSANDS OF DIRTBAG GANGBANGERS WHO POST THERE PHOTOS ON UTUBE AND SOCIAL MEDIA SHOOTING THERE FULL AUTO GLOCKS AND HIGH CAP MAGAZINE’S IN NY AND CHICAGO OH WAIT THAT TAKES BALLS AND REAL LEO WORK
Wow, RighteousBooty seems to have drank deeply of the kool-aid. The entirety of the ’34 NFA and subsequent firearms federal firearms laws are totally against the 2d Amendment. What has started out as infringement on black Americans according to Jim Crow, is now being spread to all segments of the population. RighteousBooty doesn’t seem to mind the slow creep invalidating of his/her Constitutional Rights. Marxist Democrats have been working this charade since the 60s, since they can’t just stage a coup (like the Bolshevik Revolution in 1917) and take over the government. This is using government agencies (Deep State) to eviscerate your rights a small bite at a time. FDR was a Communist, outlawing firearms which could be hidden from government agents so said government agents could tell who had firearms (do you really think the Al Capones and Baby Face Nelsons would follow the law? And the gang bangers and thugs of today?)
Ken Kaufman…In most states a convicted felon, after being released from parole and having paid all fines, fees, and restitution, can have their civil rights restored and are then able to vote. If crime was not violent or drug related they can, in most instances, purchase, own, and use a firearm. I went through the red tape after my rights were auto restored by my “required” appearance for jury duty…
I bought my SBR two years ago during Covid. I’m 75 and I cannot shoulder a heavy full sized weapon (I have a M4) for medical reason, but I want firepower in case of a home invasion. The 9mm 30rd SBR with a green laser was my choice. Shotguns are too gainly and a large frame pistol is hard to shoot with the severe arthritis in my hands. So I consider the SBR a weapon for old fart disability shooters.
FROM MY COLD DEAD HANDS
Screw those Jack Booted Thugs
Let’s not forget ruby Ridge and Waco.
Unenforceable……….
@ Ken Kaufman,
Convicted criminals were/are stripped of their voting rights so they can’t be a “key” part of the voting block for Dems.
Remember those 80,000 plus new IRS agents that Brandon got onboard? All he has to do is make a lateral transfer of those agents to the ATF. They’ll just need to get new letters on their windbreakers.
I would love to have a dozen or so ARs with stabilizing braces and get them registered for free. I would then remove the braces and replace them with carbine stocks. Voila! I now have twelve honest-to-goodness legal short barreled rifles. Unfortunately, in Illinois short barreled rifles are illegal whether they are federally registered or not. I’ve been reading some of the comments. Unfortunately, the myriad of government agencies created by Congress (ATF, IRS, FEC, etc.) actually do have the power to make “regulations,” which, in effect, gives them the power to make/modify some laws. It makes government more efficient but, alas, opens the door for corruption and abuse. Stay safe.
Alcohol Tobacco and Firearms should be the name of a convenience store, not a federal agency.
I’ve been planning to turn my henry Mare’s leg 22 into a SBR anyway, so could I now get this with the free tax stamp deal????
Two extremes here…enthusiasts and activists. I’m an enthusiast, who enjoys firearms for hobby/ sport. Two of my “SBR’s” were perfectly legal with their stabilizing braces, prior to the 1/31/23 publication by the ATF, so long as I didn’t attempt to shoulder the weapons. The ATF is simply stating they are fully aware of how these firearms are being used. I’ve never once shot these firearms using the brace as a brace. Nor have I ever seen anyone use the brace as intended, other than in pictures online. Even prior to the publication, I questioned the classification of firearm I owned. Most braces sold don’t even fit around a grown man’s forearm. My decision was to register, based on my known use of said firearms. It’s not a poor decision to be compliant. As for the majority of the folks choosing not to be compliant, I can only hope this ruling does get overturned so that you are not classified a felon and face fines or jail time. Keep the faith that our country is still a great place to live, which is why we continue to be overrun by those who seek entry daily. In response to the Texas writer…Texas and Florida are pretty much their own countries…the language barrier is tremendous. Come join us in the Midwest and enjoy a good life!
This fairy tale amnesty is a joke, what about the communist states like Connecticut where teens of thousands of people were forced into buying “others” in order to be able to exercise their rights, now the ATF comes out with this amnesty that doesn’t include Connecticut… what a joke! Other than comrade Jim (praising ATF BS), it is evident that the majority of Americans are against this garbage…
F*ck the ATF
How does (or will) this new “rule” effect MCKs?
Id like point out the most important thing of all. Congress years ago made it unconstitutional for any kind id federal gun registry. If that’s the case why are we required to register anything if they deemed it unconstitutional do to do. Doing a tax stamp clearly violates that, as well as the new background check form atf issued a few years ago witch now requires the gun and serial number to be placed on form sent in. If they legally can’t have a federal gun registery, then how are they getting away with thst form as well as the tax stamp witch are in clear violation of that ruling. Further. More if it is deemed unconstitutional for a federal gun registry then dose that mean it be unconstitutional, therfore illegal for any state to also make it mandatory for any form of firearm registry??
The pistol brace may have been a loop hole made to get around the sbr tax stamp. But atf is using thier loop holes to try get around “not having a federal firearm registry”. If we can be prosecuted because of thier rulings, then I belive they should also be prosecuted for being unconstitutional and breaking the law themselfs
1) the ATF doesn’t have the ability or authority to waive a tax so the tax stamp won’t be free as soon as someone sues over this (the lawsuit is filed already) so you WILL owe the $200 eventually.
2) the ATF is hoping you will voluntarily tell them about your firearms for an official firearms registry. They know this brace ban will be overturned soon but those records will remain because you gave them of your own accord.
3) anyone who capitulates now should never again claim to be a patriot, a 2nd Amendment advocate or anything along those lines. This is tyranny and to give in is to be a red coat sympathizer.
4) Down with the ATF.
Jim, you are just so wrong. The ATF does not have the right or power to make laws. They are supposed to make ruling based on majority public opinion. In this case it was overwhelmingly for keeping the braces, yet they ruled the opposite. The same thing happened with the 80% frame receiver. Just because the SCOTUS ruled one way in none case doesn’t mean it is based on the actual constitutional. The Heller case saying they can limit unreasonably dangerous weapons and stuff doesn’t mean they can limit anything, in fact the words shall not be infringed mean exactly opposite. Just because some hacks in robes decided they wanted to do something based only on their beliefs or other political pressure (most likely the case) doesn’t mean its truly the in the spirit or law of that amendment. Its not. To be honest. If we are all being honest no laws against any weapons are truly in the spirit of that amendment.
The ATF gives me a headache..
The ATF is so woke or afraid to go after the flood of Glock switches. Chicago is flooded with them, instead the go after braces, which have yet to be used in a crime. The ATF needs to switch their priorities for law abiding citizens to gang bangers and criminals o be abolished. I realize the criminals are a key voting block for democrats, but public safety demands they Crack down on these switches.
Come and take it.
Seems to be just another way to keep law abiding citizens under the microscope as well as a money maker for the government
Free?
You have to submit your photo and fingerprints in digital format. Many local police and County Sheriff’s will print you at no charge for the service via ink/paper, but don’t offer digital services….
Found one place locally that does through a kiosk operation, but it’s $50 minimum, they’ll do photo too.
Then there’s the atf (govt form) you have to try and muddle through…that’s nothing but headaches… I’m too old to start this (crap) now…..moving on….
The absolute ridiculousness of this is astounding. This is not about safety, adding 1 inch to the barrel of my gun is only going to make it more accurate. It won’t change the amount of rounds. I could shoot how far I could shoot or anything else not having that extra inch, makes me a felon now I’m so proud of the Democrats to use common sense and reality to make laws. I would absolutely love to have someone from the ATF representatives of Congress in the Senate come to my house for an afternoon excursion into the world of government regulation First off, I start off with gas cans. I would give each one of them a 5 gallon gas can and lawnmower with a 2 quart gas tank and then have them fill those lawnmowers with their new and improved government regulated gas cans then I would want them to explain to me exactly why a 1 inch longer barrel makes my gun safer for humanity , in all actuality, it’ll make it more accurate, but don’t let reality SKU the governments efforts to rake in millions of dollars
You don’t get a free stamp since no stamp is issued because no tax was paid. You do get a conditionally approved status that can be revoked or withdrawn at any point. But for all intents and purposes, lets just call it a cuck stamp. There is a hearing scheduled for 3/24 which will more than likely result in an injunction/stay of this ruling. The Bruin, EPA, bumpstock and 80% rulings will make this a dead issue within no time. This is also in addition to the house oversight committee demanding hearings within the next week with ATF top brass to discuss them blatantly overstepping their authority by enacting NFA rules when only congress has the power to change the laws surrounding what are and are not NFA items.
These comments show just how uneducated the American consumer is, people fail to realize your “pistol” was already an unregistered sbr, lucky for us we can rectify it for free by filing for sbr… Which congress ruled years ago have absolutely zero civilian use outside of violence … Yet our government still lets us have them, isn’t that great? quit crying about your ridiculous pistol braces that were clearly invented to skirt the law and are horribly less ergonomic than anything else you could use.. nothing ‘over reaching’ our ‘unconstitutional’ about getting rid of these abominations… Also the author is being misleading by not using the correct terminology to describe ‘eye relief’ and ‘length of pull’, the atf clearly uses this language frequently in the ruling to describe what is and is not an sbr, and then he says you MIGHT be able to skip registering as sbr and use a stock. What a joke. The author clearly did not read the ruling or is incapable of comprehending it. It states very specifically what makes a pistol an unregistered sbr and that after may31st unregistered sbrs with braces are illegal
To request amnesty means you’ve broken the law! I bought my firearm completely legally. Think about that!
Kudos for mentioning you’re no lawyer. I’d agree. 😉
Every law is implemented by a set of regulations drafted by the implementing agency It is legal for the ATF to make or change rules. It’s in the law.
Also, let’s face it. The invention of the “pistol brace” wasn’t what it said. It was a way around the SBR rules and everyone who uses one uses it as a stock. We should all be glad we got away with it as long as we did. But no one should pretend we didn’t know exactly what we were doing.
Lastly, the Supreme Court (in Heller) already ruled that feds and states may limit the types of guns or types of gun parts that may be sold. And they reaffirmed it not so long ago.
I just put a real stock on my AP5, and you know what? It’s a lot better. The process to get a tax stamp isn’t hard. And everything you do can be reused for a suppressor. And it’s free.
Tragically I lost mine in a boating accident….
Let’s see if any criminals register any goddamn thing. This is not about a law about firearms this is about control of the people. This is about taking away firearms people. This is about slowly abolishing the second amendment. And this is about attempting to do it in a loop hole way. So that the big boys who are supposed to make the laws Don’t technically get their hands dirty. So make a donation to the second amendment foundation so that we can continue to sue for our God-given rights.
ΜΟΛΩΝ ΛΑΒΕ
Did you stay at a Motel 6 when a room was $6/night? That is where the name originated.
This kinda seems like an ATF puff piece to help everyone swallow that nonsense they just released……. sadly y’all in northern states are in a bad way with your blue admin…..
Side note, Texas has the no vacancy sign lit up….. no more moving to Texas especially if your from commiefornia, I head Louisiana is nice this time of year…..
What I understand on the law is you can convert a pistol into a rifle(a carbine) . But , you can not convert a rifle into a pistol . So with that being said . Once you get an sbr stamp , is it now illegal to remove the brace ? I could be completely wrong .
There is no “free tax stamp”. In fact, no tax stamp AT ALL. Definitely right about newbies and experts being wrong!
What part of registration is illegal, does the marxist democrats (atf)not comprehend.refuse to surrender to the communist democrats.
Having a Honey Badger pistol, presents a dilemma. Any attempt to remove the handicap brace has been futile. It’s an expensive piece of equipment, and I don’t want to damage anything. It’s not designed for removal. I know! I tried it.
The people who make the firearm, have totally distanced themselves from the public, and they are located just a short drive from where I live. I’ve not been able to get any help from them. No one ever picks up the telephone.
So they will not tell me how I could safely remove that brace, until everything is settled in the courts. And no, I did not buy that pistol. I won it in a contest. I tried via email to convince them to create a 16″ barrel which would put the pistol out of the grubby hands of the ATF. But so far, it doesn’t seem that this will happen anytime soon.
Be careful on your decision! The ATF is offering a free permission (no $200 needed this time for (SBR registration). But there’s a catch to that. The only way the ATF operates is slo-mo. And you sent in your everything information, They will know who you are, where you live, and other details about you. So lets say that the freebee has expired, they shoot down your application, and now, you have become eligible to go10 years in jail, and a quarter of a million dollars fine. Yes it is a trap! So what-cha gonna do? They don’t play nice! Tough decision eh?
When President Franklin Roosevelt wanted all automatic weapons and pistols banned, they added it would be illegal to saw off a rifle or shotgun making it easy to conceal. Congress remove the pistol part of the bill, leaving the saw off guns in the bill which was senseless. It should had been removed. Ever since then it’s been a money maker for law enforcement and ATF. The right thing to do is remove the sawed off weapons part from the original bill, which should had been done to begin with.
Welcome to The “Free” Government Registration!…And What have we Aways said about Registration?
I still don’t understand the SBR Concept. Why is barrel length even a concern requiring a tax stamp. I don’t think short barrels and silencers should require a tax stamp in the first place. Neither makes the gun more effective or deadly and if the owner isn’t a felon and the gun was purchased legally that should be the end of the conversation. What difference does it make in the hands of a law abiding citizen?
Our government worries about all the wrong things.
To hell with ATF .
There is no “Free Tax Stamp.” The stamps are only issued as proof of payment. No $200 paid, no stamp. People who qualify for SBR status for their previously braced pistols will only get an approval.
Thank you Dr. Dolbee!
Good report on a complicated subject.
You mentioned the SAF- the best ally in the gun world!
Bob Campbell