On December 18, 2020, gun owners were rocked by proposed guidance from the ATF on the evaluation of the legality of pistol braces. This guidance was of particular concern to New York gun owners who had pistol braces attached to AR style receivers and had thought that the guns they owned were neither rifles nor handguns and thus believed that these “others” fell outside the scope of the Safe Act. I was contacted by a client this week, who by way of example had a, AR style gun that had an 18 inch barrel and a 26 inch overall length. As far as the ATF is concerned the new guidance would have no effect on this gun since there was no concern about this being a short barreled rifle regulated by the National Firearms Act (NFA). However, if the ATF classified a pistol brace as a stock, then there would be a concern that under New York law, the gun would be considered a rifle that was subject to the restrictions of the Safe Act.
ATF December 18th Guidance
The problem that prompted this is that while initially one company received a letter from the ATF approving a specific pistol brace. The pistol brace market had gotten crowded with products many of which had not been approved by the ATF.
The guidance itself made some sense. The ATF guidance indicated that gun owners could not rely solely on a companies classification of a device as a pistol brace and articulated some sensible indications of whether a specific device would be classified as a stock or a brace. A few examples of factors that the ATF listed in their guidance were:
- The caliber of the firearm that it is attached to. Is the caliber only conducive to shooting from a weapon with a stock such as 338 Lapua or is it something that can be fired with one hand such as a 556/223.
- The size of the firearm. Is it the size of something that can be fired from one hand or was it the size of a sniper rifle that needed a stock.
- The design of the brace itself. Is the brace designed to be put to the shoulder and is the length of pull more appropriate to be shouldered or is it a brace that is truly designed to be attached to the wrist.
The major glaring error with the guidance and the the issue that should be of greatest concern to New York gun owners was that all of the factors were described to demonstrate whether a particular weapon was a rifle or a pistol. The guidance never mentions the third possibility, whether a particular gun could be classified as an “other”. We know that the ATF recognizes others and has approved others such as the Mossberg Shockwave, Remington Tac-14, and AR style weapons such as the Franklin Armory XO-26.
The Guidance is Withdrawn
Thankfully, the criticism of the ATF’s actions was loud and furious and included a letter signed by 90 members of the US House of Representatives. On December 23, 2020, a mere five days after the guidance was published the ATF announced that it was withdrawing the new guidance.
The guidance if it was allowed to stand could have had a far reaching effect on the ownership of the very popular AR style pistols and AR style others. It could have had particular effect on New York gun owners who purchased “others” because they fell outside the Safe Act and allowed them to lawfully own semi-automatic weapons that had a detachable magazine and a pistol grip (and several other features) that would be banned if they were on a rifle or pistol.
In withdrawing the new guidance the ATF had what I believe may be an ominous warning on the release. The ATF stated that withdrawing the guidance did not change any regulation, law or legally binding requirement. I am deeply concerned that we have not heard the last of this regulation and I think it is essential that New York gun owners proceed with caution when considering the purchase of weapons that come with an installed pistol brace. When purchasing a pistol brace to attach to a weapon that you already own I think that the advice of a lawyer would be well advised.