On January 31, the new pistol brace regulation, known as Final Rule 2021-08F, was published in the Federal Register.
This is the regulation that makes anywhere from 10 to 40 million Americans (including me) felons, because we followed prior ATF guidance and put a pistol brace on our AR and other pistols or bought a pistol with a brace. In their overwhelming generosity–and probably to avoid lawsuits and legislative pushback–the ATF has given us a 120 day grace period to bring our weapons into compliance with their new rule or face a potential 10-year jail term and fine up to $250,000. (See my early article on this topic if you need more background.)
Barring any injunctions or other legal action, enforcement will start on June 1, 2023.
In the two weeks since the rule was made public, the ATF has answered some questions and cleared up some points. The most important one is that under the new rule, possession of a pistol brace is not a crime.
Pistol Braces are Not Illegal
Owning, buying, or selling a pistol brace is not illegal, and pistol braces do not require any registration. From what the ATF says, they are an accessory, much like a Magpul stock is an accessory. Under the new rule, pistol braces only become illegal when you mate a pistol brace to a pistol, thereby making it what the new regulation considers a short-barreled rifle (SBR), which is illegal unless registered with the ATF as an NFA weapon.
If you remove your pistol brace from your AR pistol before the grace period expires, you are no longer committing an illegal act. However, to avoid what the courts consider “constructive intent,” you should not store the pistol brace and the pistol in close proximity with each other. You don’t want to be placed in a position where it appears obvious that you intend to put the brace on your pistol unless (perhaps) you have disabilities and require a brace to shoot your weapon.
I have three boxes of new and used AR-15 parts, including enough parts to assemble at least two rifles and an upper. All the barrels in this box are at least 16 inches long. If I throw my pistol braces in these parts boxes, then the current case law would mean the ATF cannot prove I intended to mount these on the pistol I keep in my safe a couple of rooms away. Because I could build a rifle and put a pistol brace on it, it is impossible to prove constructive intent, at least according to current case law.
My Plan
In my last article, I said for the time being I was going to do nothing in response to this rule. That plan holds. I expect to wait about 100 days and re-evaluate the situation.
If a court has not put the rule on hold at that time, I will probably remove the brace from my pistols and store them away. My intent is not to put them on a pistol or to build a short barreled rifle. My intent is to preserve my investment (the braces are not cheap) and have them available if the rule is overturned months or years from now, as I expect it will be. When it is again legal to possess an unregistered AR pistol with a pistol brace, and only at that point, would I reevaluate mounting one or more of these braces on a pistol.
I am also keeping my options open to register one or more of these weapons with the ATF and keep the brace on it. I think in my case, it will depend in part on how much of a hassle it is to get fingerprint cards and pull together the ancillary information they request. When I bought my suppressor, the seller made it easy. I’m not sure if it will be that easy on my own.
Mossberg Shockwave
The ATF has clarified that under the new rule, adding a stabilizing brace to the Mossberg Shockwave, Remington Tac-14, and similar weapons is illegal because it creates a short barreled shotgun, or SBS. Moreover, they will not be waiving the $200 tax fee for someone who registers a Shockwave with a pistol brace as an SBS. Why? They claim an SBS differs from an SBR because the pistol was designed to be fired one handed while the Shockwave was not.
I disagree. I find the stock on a shockwave is designed to be fired in one hand and even looks similar to an old cavalry pistol. When I bought my Mossberg Shockwave, it was because I wanted the capability to fire out of a car using only one hand. I think this decision by the ATF shows the capricious nature of the new rule, its inconsistency and illogic. We can all hope the courts will agree.
Even though I have a pistol brace for my Shockwave, the brace remains in its original SB Tactical box. Although I have never put the brace on the Shockwave, that’s the only use for it. I am considering selling the Shockwave brace to recoup some of what I paid for it because I don’t want it around after the 120 grace period is up. Constructive intent would be easier to prove in a scenario when there is only one gun it fits, and the result is now considered an SBS.
Its Evolving
Please keep in mind that I am not an attorney and the above is not legal advice. Just because I plan to take a certain action does not mean it is right for you, as your situation, state of residence, and weapons may differ from mine.
As this new rule demonstrates, the ATF can and does change its mind. Just because they said on January 31, 2023, that it is legal to own a pistol brace does not mean they will still consider it legal in 2028 or some other future date. Also, this rule is likely to be subject to multiple lawsuits. The outcome of those and other lawsuits may change how this rule is enforced. Before making any decisions you might come to regret, please do your own research, stay abreast of the evolving case law, and consider getting the advice and counsel of an attorney who specializes in Second Amendment issues.
