July 23, 2021
By Ryan F. Sullivan
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The ATF has invited comments on their newly proposed guidelines after an avalanche of comments that the ATF’s last set of “objective guidelines” was neither particularly objective nor much of a guideline. Now, they’ve come back with a checklist to determine if your braced pistol is a novelty or a felony. Hint: it doesn’t take much to kick it over the line. Utilizing a pistol brace point system, different attributes are assigned different values, which are added up. Get a score too high, and your pistol brace is now a stock, your pistol just became an unregistered SBR and you just became a felon.
Longer version, it’s a two part system. First, the brace itself gets evaluated on its core attributes and assigned a point score. For instance, being based on an existing stock is 2 points, using a “fin” with no straps is 2 points, and having a folding “counterbalance” that could contact a shoulder is 1 point. Get more than 3 points, it’s a stock. Do not pass go. Do not install on a pistol without a tax stamp.
Next comes the assembled weapon, which must weigh between 63 and 120 ounces when assembled and measure between 12 and 26 inches. The rationale is that a small pistol doesn’t need a brace, and a pistol that is too long would be too awkward to manipulate one handed. The yardstick for the weapon is 4 points, but this round introduces a set of “instant death” 4-point features that alone are enough to make the gun a Short Barreled Rifle. Length of pull greater than 13 ½ inches? Pull the straps off a “cuff” brace? Put an optic on there with the wrong eye relief? If so, congratulations, you’ve committed a federal offense.
Currently, the ATF has opened the floor for comments, but there’s an elephant in the room that needs to be addressed. Two of them, actually.
Elephant One: At this point, the end is near for the pistol brace as it exists today.
All good things must come to an end. For people who like something more potent than a standard handgun without sacrificing control and precision, the brace has been quite the popular accessory. From the sales numbers alone it's pretty clear that the demand exists for this sort of weapon. Now, it's something of an open secret that people have been using these pistol braces as something other than braces, and in recent years, the secret has gotten a bit too open. There's no going back to the previous state of affairs. The cat is out of the bag, and it's not going back in. The ATF has made it clear that they don't think this usage is square with the National Firearms Act, and are now doing the best they can to establish a framework that cracks down on what they view as illicit usage.
Elephant Two: Nothing short of modifying the National Firearms Act is going to help, but doing so still isn't going to save the brace as we know it.
At the end of the day, the BATFE is part of the Executive Branch. They have to work with what the Legislative Branch gives them, and what the Legislative Branch has given them is the National Firearms Act. As much as we want to paint the ATF as the bad guy here, the bottom line is that they're expected to play by the book, and the book was written in the 1930s. That book, to be blunt, is obsolete. It does not mesh with reality today in terms of what makes an ideal tool for legal use. Consider the phrasing in the definition of 'pistol': originally designed, made and intended to fire a projectile (bullet) from one or more barrels when held in one hand. Ok, got that phrasing in mind? Intended for use in one hand?
Pop quiz time.
I'm not much of a betting man, but the average reader of the RIAC blog probably had an easier time with question two. A two-handed grip has been the de-facto standard for defensive shooting for many years, barring special cases like shooting around cover or shooting while injured. In fact, if you search “ATF pistol training” into a Google image search, the first result is an agent in a vest holding a service pistol in both hands on a firing range. For shame, ATF; you literally are the agency responsible for knowing better.
Of course, this brings us back to the original thought process behind putting SBRs and silencers on the NFA in the first place. The thinking, back in the 1930s, is that the typical civilian didn't have a need for those sorts of items, and that the true end users were the criminal fraternity. The fact is, there are many things you can do to a firearm to make it more effective as a whole, but not many that make it more effective at crime and crime alone. Is a pistol with a stock more dangerous than one without a stock? Potentially, yes. But being dangerous is a firearm's job. It's like complaining because a chainsaw is too good at cutting things.
Also, we need to recall the context for the NFA. Prior to its passage in the 1934, there were very few restrictions on the private acquisition of firearms. They were not required to be numbered, or sold through specialized dealers, or generally much more restricted than any other piece of equipment you could buy at the hardware store or through a mail-order catalog (which people did until the 1960s). The NFA created a regime of tracking and restriction for “dangerous” weapons, and in the following decades most of those restrictions have trickled down to firearms as a whole. Today, it's not just the “dangerous” stuff that comes with waiting periods, background checks, mandatory serial numbers, and any other state restrictions that get layered on top of the federal rules. If the NFA stopped existing tomorrow, it wouldn't be a “wild west” scenario. You'd still have a broad selection of rules to follow depending on where you live, they'd still be controlled in interstate commerce, and generally not much would change except the price of non-historical automatic weapons would plummet. Few would pay several thousand dollars for a registered 1980s vintage STEN tube if buying a new production STEN tube is an option.
In a hypothetical scenario, if we revise the wording for pistols, SBRs and SBSs in the NFA (silencers, AOWs, MGs and DDs are a conversation for another day), and strip out the wording about how many hands can be used to hold a handgun, the problem would be solved. No one would need to quibble over where the line is drawn between a pistol and a rifle, because the line would no longer exist. Gun owners could make their weapon and accessory choices based on their needs instead of an arbitrary scorecard or the hand wringing of lawmakers from nearly 90 years ago.
But what would this mean for the arm brace? Well, the news still isn't great. Because SBR and SBS items would no longer require registration, we'd likely see a notable drop in the number of brace sales, and in turn the number of people designing, manufacturing and marketing braces. Best case, it turns out people are really keen on strapping a pistol to their arm, and the braces remain on the shelves. Worst case, the brace makers pivot to making stocks, and the arm brace quietly slips back to a niche/novelty item, having earned itself a place in the history of the arms trade for playing a short but memorable role in the ergonomics and politics of arms design.
For comparison’s sake, let’s say the NFA goes unaltered and the archaic language is allowed to stand. Well-meaning American citizens are going to lose property or be exposed to legal hazard because of this worksheet. For the uninitiated, it's easy to unwittingly trip over a line somewhere and inadvertently wind up with an improperly configured or contraband firearm. This form is going to make the situation much, much worse. People with absolutely no malice aforethought are going to be getting swept up in yet another confusing ineffective gun law.
If the worksheet takes effect, recall what was said earlier, about the weight limit for handguns to be considered brace candidates. This is new, and if allowed to stand would set a dangerous precedent. Currently, weight is not a critical factor for domestic handgun production, and manufacturers can make their guns as heavy or as light as they need to be to get the job done for the end user.
The ATF is now proposing a weight limit 120 oz unloaded, or about 7.5 lbs. Right now, this isn't too dire; most AR pistols come in below that number, and even big hunting pistols like the S&W 500 or the Desert Eagle clear that bar by a healthy margin. But what happens when the ATF changes its mind? They've done it before. They said bump stocks were ok, until they didn't. They said braces were cool, until they weren't. And if they decide that 120 ounces was too high, we could see large swaths of high performance handguns effectively banned for being over whatever the new weight limit is set at.
Other sections of the worksheet are ominous as well. The average handgun shooter wouldn't have anything to worry about today, but having established that there are a number of features that make a handgun "less of a handgun" could come back to bite gun owners again and again. Recall that bipods and magnifying optics with “improper” eye relief are already on the brace worksheet, and it wouldn't be a huge stretch to apply that logic to AR handguns in general, certain types ammo, or whatever else is determined to be the next boogeyman.
Don't expect anything big all at once, just one bite at a time, slow boil style against whatever is the next “big scary thing” after braced pistols are effectively targeted. This isn't a slippery slope, it's a proven tactic.
Yes, we could fight it out with the ATF, and making your opinion heard on their call for responses is a sensible thing to do. However, the people that need to be pestered about this are the elected officials in the House and Senate, who are actually equipped to do something about the issue for the American firearms community. Some moves to this effect have already happened, such as 2017’s Hearing Protection Act (H.R. 367), which sought to remove silencers from the NFA. Similar action for short barreled firearms could bring the arm brace drama to a resolution that benefits gun owners, reduces the paperwork burden on the ATF, and allows them to focus on areas that might actually have a positive impact.
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