Clock Ticks on ATF Final Pistol Brace Rule, While Lawsuits Abound

Clock Ticks on ATF Final Pistol Brace Rule, While Lawsuits Abound

On January 13th of this year, U.S. Attorney General Merrick Garland signed the final ATF pistol brace rule, which will potentially turn millions of otherwise law-abiding Americans into felons overnight.

ATF final rule 2021R-08F, aka, “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces’,” overturns established ATF precedent that indicated firearms equipped with stabilizing braces were not subject to regulations under the National Firearms Act (NFA).

The final rule amends ATF policy to replace actual intent with vague descriptions of “surface area that allows the weapon to be fired from the shoulder, provided other factors […] indicate the weapon is designed and intended to be fired from the shoulder.”

SEE ALSO: Biden Issues Final Rule to Criminalize Pistol-Braced Firearms, GOA Condemns It

In other words, whether or not you built a rifle to be shouldered, if it can be, then you intended it that way.

The ATF set a tax-free 120-day registration window for owners to register their firearms under the NFA if they wish to avoid possible felony prosecution. Or, pistol brace owners have these additional options:

  • Remove and replace the barrel with 16” or longer barrel
  • Permanently remove or dispose of the stabilizing brace
  • Turn in your firearm to the ATF
  • Destroy your firearm

Opponents of the rule cite industry data and the bipartisan Congressional Research Service, which estimate that up to 40 million firearms could be affected by these changes.

However, the ATF’s impact analysis dismisses that estimate and claims that “only” three million firearms could be impacted.

Upon the rule’s publication in the Federal Register, 2A groups were ready with their legal challenges.

Both the Firearms Policy Coalition (FPC) and the Texas Public Policy Foundation (TPPF) filed federal lawsuits in the Northern District and Eastern District of Texas, respectively.

Both suits challenge the rule on the basis that the ATF and Dept. of Justice are violating both the Administrative Procedure Act and the U.S. Constitution.

“The Department of Justice cannot rewrite federal statutes by bureaucratic diktat and decide to turn millions of law-abiding Americans into criminals guilty of a felony. The Constitution gives Congress—not executive agencies—the legislative power to amend laws.”

TPPF Senior Attorney Autumn Hamit Patterson

However, the largest effort against the ATF’s “administrative fiat” is a new federal lawsuit being brought by a coalition of 25 states led by West Virginia Attorney General Patrick Morrisey and North Dakota Attorney General Drew Wrigley, along with the Firearms Regulatory Accountability Coalition (FRAC) as lead plaintiff, firearm and brace manufacturers, and a wounded veteran.

SEE ALSO: Federal Judge Says Gun Ownership a Right for Cannabis Users

Filed in the U.S. District Court of North Dakota, the lead plaintiffs are joined by the attorneys general of Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, and Wyoming.

“ATF repeatedly issued letter rulings assuring manufacturers and the public that attaching a stabilizing brace would not alter the statutory or regulatory classification of a pistol or other firearm,” explains the 46-page suit.

“As a result, millions of Americans have for years lawfully purchased stabilizing braces and pistols equipped with stabilizing braces from authorized, legitimate manufacturers with ATF’s full knowledge and express approval,” it continues.

The government has already received a similar loss when the 5th U.S. Circuit Court of Appeals overturned the ATF’s bump stock ban based, in part, on the fact that the ATF lacks legislative authority to create new laws. In short, the ATF is a regulatory agency, not a legislative body. It cannot prohibit a lawfully-owned product via executive fiat.

Given that the ATF’s final rule on pistol braces seeks to create a similar situation, the coalition lawsuit, as well as the FPC and TPPF lawsuits, all seem to have a solid legal basis in their challenges going forward. Stay tuned for updates!

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  • Richard Flack March 9, 2023, 5:33 pm

    What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms.
    Thomas Jefferson

  • Paul March 2, 2023, 11:05 am

    Remember this, if the ATF can retroactivley change the rules and make a feature previously legal to now be illegal, they will do it with other types of firearms. ie…semi automatic was legal, now it’s not, or self-built 80% firearms now legal, but wait a minute… it’s not. It’s the nose of the camel under the wall of the tent. If you don’t push back now, they will take the next step and the next step may be a huge step if they are allowed to take this measure.

  • Robert Bright February 20, 2023, 9:55 am

    Here is my problem; I’m sure many other members have the same questions. We know the BATF has a record of all our firearms purchases made in past few years. So I have an AR 15 Pistol that I filled out all the paper work to buy with the government. They know I have that AR 15 Pistol. It came with the brace already on the buffer tube. If I put a 16 inch barrel on it, it is still on a list somewhere at the BATF as a pistol, eh? (they also say you may not put optics on these Pistols) What prevents them kicking in my door at 0300 hours one day and kill my wife, son, dog and me looking for my Pistol with a brace & optics? Any suggestions would be appreciated.

    • Jon Lis February 23, 2023, 10:48 pm

      That’s a tough one and that is why I never bought a complete Ar pistol from the dealer. I’ve always bought a stripped lower and go from there. The ATF doesn’t know if it’s for a pistol or rifle or just to look at. lol. For safety reasons, just install a smooth buffer tube and remove scope and back up irons. Just install a red dot on it. take a pic of it with a date on it and email yourself the pic as proof. i did..

  • Bruce Ruble February 17, 2023, 3:20 pm

    This law will be overridden , like the article said , ATF CANNOT make law , ONLY Congress can do this ! Biden’s DOJ , IRS , DHS , DEA and his ATF are all walking on thin ice ! They all think they have the power to override Congress , they will all find out they are sorely mistaken !!!

  • Awesome Bill from Dawsonville February 17, 2023, 1:40 pm

    And just what are the fine folks living in states that don’t allow SBR’s to do?

    • jon lis February 23, 2023, 10:49 pm

      install smooth buffer tube, remove back up irons and scopes or install 16″ barrel.

  • Captain February 17, 2023, 10:25 am

    All the legal stuff is in good working order, and I thank each of these entities for fighting on behalf of us and our 2A rights. Two issues I am am concerned about: 1) Will all these lawsuits be addressed in time prior to the 120 day cutoff (May 31, 2023)? The bump stock ban took five years to be reversed, will this be simliar…? And 2) A friend of mine purchased stripped AR lowers — not rifles, not pistols, even by ATF guidelines. Some became rifles, some became pistols, but even tracking the sale would not show what became of the lowers, as they are completely modular. The stripped lower category hasn’t really been addressed in all the vaguity of the rule.

  • William Carter February 16, 2023, 12:01 pm

    I wonder how this ruling will fly in light of the Americans with Disabilities Act (ADA)?

    • An10 February 17, 2023, 6:26 am

      I was thinking the same thing and wondering why no one is bringing this up. I saw only one news clip interviewing a disabled vet who partially lost his arm. He was saying with out the brace the bullets were going everywhere. With a brace he was hitting the steel target. I felt angry that they are taking away his 2nd

      • Ocean Dragon February 17, 2023, 3:31 pm

        Exactly. I think that is why the pistol brace is so vital. Unfortunately, whose who have abused the function of the brace by using it as a shoulder stock has infringed upon the disabled users. There is always someone who messes it up for the intended users.

      • John L February 17, 2023, 8:33 pm

        Without looking at the six lawsuits filed again, I believe the ADA is a part of the filing language in all six. I do know that at least 2 of the lawsuits have disabled gun owners as named plaintiffs.

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