The BATFE's New Rule on Brace-Equipped Firearms
People with affected firearms have 120 days to comply.
A proposed rule by the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) regarding certain firearms assembled with “stabilizing braces” is, in revised form, final and now in effect.
Generally, the subject firearms are AR-15s and comparable firearms which have never been manufactured or assembled as rifles, but which have instead been manufactured or assembled as pistols, by being fitted with a short barrel, and with a “stabilizing brace” instead of a rifle stock. Under the new rule, such firearms must, within 120 days, be registered with the federal government, disassembled as the BATFE describes, surrendered to the government, or destroyed.
More on those options in a moment, but first the details of the rule.
Under the National Firearms Act of 1934 (NFA), a “rifle” is a firearm that has a rifled barrel and that is “designed or redesigned, made or remade, and intended to be fired from the shoulder.” Also under the NFA, a rifle that has a barrel or barrels of less than 16 inches length, or an overall length of less than 26 inches, commonly referred to as a “short barreled rifle,” must be registered with the federal government (normally, prior to a person taking possession of the firearm).
Also under the NFA, a rifle may not be converted into a pistol, unless it is beforehand registered with the federal government as “a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length.”
A “receiver” is a part of a firearm into or onto which the firearm’s other parts are installed or attached. Some receivers can be assembled with a stock, into a rifle, or, if never assembled into a rifle, can legally be assembled without a stock, into a pistol. Meanwhile, over the last decade, manufacturers have produced a device called a “stabilizing brace.” Whereas installation of a stock on a receiver (fitted with a rifled barrel) would cause the firearm to be a rifle, installing at least some varieties of brace can, depending on the firearm’s other characteristics, cause the firearm to be a pistol.
Originally, the concept of a brace was that instead of being held to the shoulder as one would a rifle stock, it would have a strap or other feature allowing it to be affixed to a person’s forearm, to permit handicapped individuals to use a firearm one-handed.
However, while some devices marketed as “stabilizing braces” are affixable to a person’s forearm and are not suitable for holding to the shoulder, others can also be held to the shoulder in the same manner as a rifle stock. The new rule is largely in response to the possibilities that the vast majority of braces can be used as a shoulder stock, the vast majority of people who have braces have those that can be used as a stock, and the vast majority of people who have brace-equipped firearms are not handicapped, do not affix the brace to the forearm, and instead use the brace as a stock, firing the weapon in the same manner as one would a rifle.
How the BATFE will decide which firearms are affected by the rule
By regulation, the BATFE has extended the NFA’s definition of “rifle” to include “a weapon that is equipped with an accessory, component, or other rearward attachment (e.g., a ‘stabilizing brace’) that provides surface area that allows the weapon to be fired from the shoulder, provided other factors . . . indicate that the weapon is designed, made, and intended to be fired from the shoulder.”
The “other factors” are, verbatim:
· Whether the weapon has a weight or length consistent with the weight or length of similarly designed rifles;
· Whether the weapon has a length of pull, measured from the center of the trigger to the center of the shoulder stock or other rearward accessory, component or attachment (including an adjustable or telescoping attachment with the ability to lock into various positions along a buffer tube, receiver extension, or other attachment method), that is consistent with similarly designed rifles;
· Whether the weapon is equipped with sights or a scope with eye relief that require the weapon to be fired from the shoulder in order to be used as designed;
· Whether the surface area that allows the weapon to be fired from the shoulder is created by a buffer tube, receiver extension, or any other accessory, component, or other rearward attachment that is necessary for the cycle of operations;
· The manufacturer’s direct and indirect marketing and promotional materials indicating the intended use of the weapon; and
· Information demonstrating the likely use of the weapon in the general community.
Who’s right, the BATFE or its detractors?
As I wrote for The Federalist four years ago, the BATFE has a 50-year history of deliberately misinterpreting federal firearm laws to the injury of the armed citizenry. It also has a history of lying to federal judges to obtain search warrants, baiting people into violating federal firearm laws, and allowing firearms to be smuggled from the United States to Mexico, for the express purpose of having the firearms recovered by Mexican police, so that Democrats could howl and squeal that such firearms should be banned in the United States—things that warrant reforming the agency and indicting its personnel involved in such crimes (and defeating Democrats in all elections, from president to dog-catcher).
Also, the agency’s rule on brace-equipped firearms has elements that can and will be challenged in court, for example, for vagueness: How many square inches of “surface area” warrant a device being considered designed and intended to be held to the shoulder? How many pounds or ounces of firearm weight, how many inches length of pull, and how many inches of scope eye relief? And so on.
However, in concept the rule is, to some extent, defensible. Like it or not, in addition to its restrictions on a rifle’s barrel length and overall length, the NFA states that a rifle is designed and intended to be fired from the shoulder, a concept easy to grasp. Therefore, assembling a firearm with a brace that, in addition to being affixable to a person’s forearm, allows it to be used as a shoulder stock, at least could call into question whether the resulting firearm is a “rifle.”
People who have no physical handicap limiting them to one-handed use of a firearm, and who until now avoided the provisions of the NFA by attaching a brace that, for all practical purposes, is a stock, will be upset that the rule interferes with their gun hobby. And various groups will undoubtedly feign outrage about the rule for fund-raising purposes.
However, the problem here is not so much the BATFE or its rule; the problem is the NFA. The Second Amendment was adopted to guarantee the right to keep and bear arms, not for a hobby, but for defense against tyranny, and the Supreme Court has, multiple times since Democrat President Franklin Roosevelt and a Democrat Congress began the civilian disarmament movement by imposing the NFA, ruled that the amendment protects that right for defensive purposes.
The most commonly issued firearms in the military are rifles with barrels shorter than 16 inches, which demonstrates that such rifles are useful for defensive purposes. Furthermore, in U.S. v. Miller (1939), the Supreme Court indicated that the right to arms includes those that have a “reasonable relationship to the preservation or efficiency of a well regulated militia,” such as those that are “ordinary military equipment” and others the use of which “could contribute to the common defense.”
Also, if there are, as the BATFE estimates, three million brace-equipped firearms in America—other estimates are much higher—such firearms are common, and the Supreme Court, in District of Columbia v. Heller (2008), ruled that the right to arms includes arms that are “in common use.”
As the BATFE points out, the NFA doesn’t ban any guns, it requires that certain types of guns be registered and their possession be taxed. But, the tax imposed by the NFA on short-barreled rifles (and certain other types of firearms) was intended to be prohibitive, so an argument could be made that the NFA’s ultimate purpose violates the Second Amendment.
Options for people with affected firearms
As noted, the BATFE is offering people the option of registering affected firearms, and it is waiving the tax, which would normally be $200 per firearm. However, given the direction of the country and the Democrats’ ongoing weaponization of the BATFE’s parent agency, the Department of Justice, against conservatives, keeping one’s name off the federal government’s gun owner registry would be prudent. Other options include destroying the firearm or surrendering it to the BATFE, which are also objectionable.
Two other options provided by the BATFE are:
· “Remove the short barrel and attach a 16-inch or longer rifled barrel to the firearm, thus removing it from the scope of the NFA,” or
· “Permanently remove and dispose of, or alter, the ‘stabilizing brace’ such that it cannot be reattached” to the firearm. However, while—if the BATFE is correct that the brace makes the firearm subject to the NFA—requiring that the brace be removed from the firearm would be reasonable, further requiring it to be disposed of, or altered, may not be legally defensible. The NFA does not define a rifle, a rifle with a short barrel or short overall length, or a weapon made from a rifle to include a combination of parts from which such firearms can be assembled. And in U.S. v. Thompson/Center Arms Co. (1992), the Supreme Court held that a combination of parts from which one can assemble a pistol and either a rifle with a barrel over 16 inches length or one with a shorter barrel is not subject to the NFA.
Consult a lawyer, of course, but it seems that, if, as the BATFE contends, a brace is a rifle stock, a person who possesses a non-NFA rifle can legally attach a brace to it. A person would presumably be on shakier ground if he or she possessed a brace without possessing a non-NFA rifle to which it could be attached as a stock.
While we wait to see what the courts do with this mess, gun owners who are serious about the reason for which the Founding Fathers recognized the keeping and bearing of arms as a great, political right, can have AR-15s and comparable rifles that have barrels of at least 16 inches length, which have greater velocity, better flash reduction, and other attributes making them generally superior to brace-equipped pistol variants for the purpose for which the Second Amendment was adopted.
And anyone who wants short-barreled rifles removed from the NFA can support strong Republicans who challenge weak ones in the Republican Party presidential, Senate, and House primary elections, work to have them win in the general elections, and lobby them to change the NFA legislatively once they are in office.