Friday, January 13, 2023, the ATF published the final rules for braced firearms, affirming that they are and always have been Short Barreled Rifles – regardless of prior advice from the agency.
https://www.atf.gov/rules-and-regulations/factoring-criteria-firearms-attached-stabilizing-braces
The ATF has agreed to “forbearance” of the $200 fee, which still stands… they just agree to not collect it during registration of braced pistols.
They state that these firearms have always been SBRs, and that they just errored in their analysis in the past. For that reason, when they were transferred to you by an FFL as an individual they are currently in your individual possession as an SBR now unless transferred to a trust prior to 1/13/2023. For that reason, you must generally register these as an individual on Form 1.They consider them to be SBRs now unless you take an action to make them not be SBRs (destroy the brace permanently; change the barrel to over 16 inches). Note that an AR-15 recoil extension behind the receiver may be considered something that can be shouldered on an AR-15 pistol since the surface area no longer is being analyzed.
You will need to provide correct form fingerprint cards by mail or the electronic format fingerprint file for each one you register, and send a notification packet to your CLEO. I don’t understand why new ones are necessary if you already have NFA items on registry, but they appear to be needed.
Consider waiting until after the rule actually publishes on the Federal Register before filing the Form 1. That is when the process will become official.
While GOA/GOF, SAF, FPC and a number of state organizations will likely file lawsuits against this rulemaking, resolving them will take time, involve risk and great expense. Support them as you can.
ATF makes interesting statements in their “Factoring Criteria” document. They indicate that in the last years, about 210 braced firearms involved in crimes have been analyzed by their laboratories. They also indicate an estimate of 3 million braced firearms exist in civilian hands. SIG submitted an estimate of 5 million. Even assuming ATF’s estimate, that means that .007 percent of these firearms were submitted after criminal incidents. That is remarkably low.
NFA is characterized as existing to register “particularly dangerous” “gangster weapons”. With over 3 million braced pistols in circulation over the last decade, it would seem that braced pistols are in “common use”, and that they are not rare, or “particularly dangerous”. It’s difficult to see from the ATF’s own statements, and from FBI statistics how these commonly used firearms should justifiably remain under the NFA.
There are possible Chevron Deference violations in this rulemaking. The questions is whether Congress expressly authorized the agency to define these firearms as SBRs after a decade of use under the GCA, potentially violating the concept of lenity for perhaps millions of citizens.
The ATF addresses all these things, and feels that they have the justification to proceed in their rulemaking. This will likely wind it’s way through a number of levels of courts, encounter disagreement between the Federal District Appeals Courts and then end up in the Supreme Court the way the Bump Stock rules have now in the Cargill v. Garland case.
By what’s key is that Biden’s DOJ simply does not care, and Congress cannot override this action at this point.
The brace is not being registered or taxed. The pistol firearm with brace can now generally considered a SBR. The ATF has stated that it is an SBR, and has always bene a SBR and that they made errors in declaring them GCA firearms in the past.
They give owners choices. Register them within 120 days and they will “forebear ” (or forget to collect) the $200 transfer tax; or destroy the brace, or install a 16 inch barrel or turn in the firearm or destroy the firearm. If you register it on form 1, you submit fingerprints and notify your CLEO. Some states do not permit civilians to own NFA firearms.
If your FFL transferred the braced SBR to you individually you register it as an individual unless you transferred it to a trust prior to 1/12/2023. Registration involves submitting form 1 online, fingerprints and notification of your CLEO.
The rulemaking is sure to be challenged by GOA/GOF; SAF; FPC and a number of state firearms rights organizations.
Issues of Chevron Deference violation, Lenity and other legal principles were dismissed by the ATF in their order, but are sure to be brought up after the 5trh Federal Circuit ruling on Cargill v. Garland last week.
Understand that Congress cannot address this since the Senate will not pass a bill and the Biden Administration supports the ATF actions. Only the judiciary can reverse this, and that will take time and be expensive. That is, of course, what is anticipated by the agency.
Note that the “factoring criteria” anticipates that there are 3,000,000 of these in use today after a decade of general distribution under the GCA, and that there have bene two incidents of criminal use, and 210 braced firearms submitted to them in the last 5 years for analysis. Still, they describe them as “particularly dangerous” weapons controlled because of “gangster use” as identified for inclusion in the NFA in 1938.
In the post NYSRPA v. Bruen world, where rules didn’s exist about barrel length, how a user shoulders a weapon, and treatment of weapons in “common use” in 1789 when the 2nd Amendment was adopted and 1868 when it was incorporated to the States by the 14th Amendment, one might question how this possible infringement might impact analysis by a court respecting the Supreme Court.
NYSRPA v. Bruen removes the concept of “Scrutiny” from the court’s analysis of government laws and actions. From June, 2022 on, the 2nd Amendment means what it says, and exactly what it meant in 1789 and 1868, There is no longer “wiggle room”. “Shall not be infringed” doesn’t seem compatible with the 300 pages of rules and explanation that are based on the length characteristics of a rifle or pistol when there were no traditions about this back when the 2nd Amendment was conceived and written.
The arguments in the ATF factoring criteria are tortured. The ruling is somewhat based on how a firearm is advertised and how you end up using something, not it’s physical characteristics. This is similar to regulating weapons because they are “scary” (something Maryland and others justify their “Assault Weapons” bans with).
In the end, the ATF makes it clear in their own argument that there is no evidence that the 3,000,000 weapons with these characteristics are in common usage, and that they are – in fact (based on the evidence from FBI statistics) not “particularly dangerous” and not the choice of modern day criminals as “gangster weapons”.
Skilled Shot Blog 