February 08, 2023
With the ATF’s new rule reclassifying pistols with stabilizing braces as “short-barreled rifles” (SBRs) recently published in the Federal Register, owners of such firearms have 120 days to decide what to do with their guns. Unfortunately, it might take longer than that to understand some of the vaguer points in the rule, which can have a big effect on lawful gun owners who could find themselves turned into instant felons in a few months.
Before we get into some of those vague points, though, one thing is certain: The brace rule was officially published in the Federal Register on January 31. That means that Americans who own pistols with stabilizing braces attached have until May 31 to do one of several things in order to be under compliance under the NFA come June 1. Those private owners who are not licensed FFLs must either register the firearm on a Form 1 (tax is waived), replace the barrel with one over 16 inches, remove the brace so that it cannot be reattached, forfeit the gun to the ATF or destroy the firearm.
That being the fact, let’s move on to those questions that are tougher to answer. We recently spent an hour on the phone with attorney Johanna Reeves of Reeves and Dola, LLP, followed by several email exchanges, to try to clear up some of the muddy water. Reeves has been practicing in the field of federal firearms and explosives laws and regulations for 20 years, interpreting regulations for clients and representing licensees in ATF revocation hearings.
The fact that the ATF released the new rule well before publication in the Federal Register gave many armchair interpreters and Saturday morning speculators time to look it over, however briefly, and form quick opinions, which they immediately distributed to the masses. That has likely led to much of the misunderstanding.
“There are a ton of people who are racing to be the first to comment on it,” Reeves said. “But when that happens there’s an increased risk of inaccuracy, misinterpretation or misunderstanding. It’s great because people get an advance look at what the rule is going to be. But then it prompts all this ‘noise.’ There’s a lot of ‘noise’ out there.”
Of particular interest to Firearms News readers are portions of the new rule dealing with permanently attached barrel extension, rearward attachment of buffer tubes and weight in relation to new and very lightweight models of AR-style rifles. Although there are certainly other issues to bring up, we chose these three.
Barrel Replacement and Barrel Extensions to Change Your Pistol into a Rifle
A suggestion published by ATF is to make your braced pistol into a legal firearm/rifle is: “Remove the short barrel and attach a 16-inch or longer rifled barrel to the firearm.” This would turn it into a rifle. At this point a standard shoulder stock could be installed. An FAQ section in this document states: “A rifle with a barrel (rifled) of at least 16 inches would not be an SBR under the NFA regardless of whether it incorporates a ‘stabilizing brace’ or traditional shoulder stock. Note, the firearm would need to retain an overall length of at least 26 inches and not fall into other NFA categories.” The issue here is the use of the word “rifled.”
For many decades, it has been legal to have a shorter than 16-inch rifled barrel on a rifle provided that an extended flash hider, muzzle brake, suppressor, fake suppressor, etc. is permanently attached/welded to the barrel, which would be long enough to reach 16-plus inches. Since those extensions are not “rifled,” the new brace rule casts doubt on those formerly legal extensions. Rifling was never an issue at a federal level regarding barrel length, yet the ATF brace rule seems to go out of its way to stress “rifled” 16-inch barrels.
UPDATE 2/9/23: BATFE contacted Atty. Johanna Reeves today and clarified that nothing has changed regarding permanently attaching muzzle brakes, flash hiders, barrel extensions, etc., which are not rifled, to shorter barrels in order establish the over 16-inch-barrel requirement for rifles. The barrel extension must be permanently attached according to ATF-approved guidelines.
To Buffer Tube or Not to Buffer Tube…That is the Question
Another sticking point is the “Rearward Attachment” section of the rule, which states: “(iv) 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.
“An AR-type pistol with a standard 6 to 6.5-inch buffer tube may not be designed and intended to be fired from the shoulder even if the buffer tube provides surface area that allows the firearm to be shoulder fired because it is required for the cycle of operations of the weapon.”
It seems clear that a buffer tube installed on an AK-type pistol, CZ BREN pistol, HK MP5-type pistol, or another design which does not need the buffer tube to operate, would be deemed a stock. What is not clear is what ATF will allow as a buffer tube on an AR-type pistol. Is a pistol buffer tube over 6 ½ inches not allowed because it’s not “standard?”
Although no amount of foam or padding can be attached to the rear of the tube, can foam be placed around the tube? Can a buffer tube be used as a cheek rest? The document shows a photo of someone placing the tube against their cheek which is far away from their shoulder. Is this now not allowed? The document doesn’t say.
What if one wants to install a .22 LR conversion kit in their AR-type pistol? The .22 conversion kit does not require the use of a buffer tube, so, is this legal? Or, if not, would the owner have to take the buffer tube off before installing the .22 conversion kit? Would the buffer tube laying on the floor constitute “constructive possession” of an unregistered .22LR-caliber SBR?
Reeves attended an ATF seminar at SHOT Show where officials attempted to address several issues. “ATF has explained that it will look at all the factors in determining whether a firearm is an SBR,” Reeves said. “In answering one of the questions, ATF explained that their decision would not rest on one single factor. Marketing or advertising is only one of the factors that ATF will look at in determining whether a ‘rearward attachment’ on a firearm makes the firearm an SBR.”
Marketing and advertising… So, every gun owner will have to be intimately familiar with every brochure, every ad, and every social media posting that the company which made their gun or buffer tube. If the company represented, or misused, their model of handgun, or part, in a way the ATF doesn’t like, does their gun configuration become instantly illegal because of this and one more “factor”? Who knows?
Another interesting question arises concerning weight since there are now lightweight AR rifles manufactured weighing as little as three pounds. The ATF’s explanation of one section of the rule states: “… whether the weapon has a weight or length consistent with the weight or length of similarly designed rifles,” and continues: “If the weight or length of the firearm is consistent with the weight or length of similarly designed rifles, then this would be an indicator that shoulder-firing the weapon provides stabilization and is beneficial in firing the weapon, and thus that the firearm is designed and intended to be used this way.”
Does this make a four- or five-pound AR pistol an SBR even if it doesn’t have a stabilizing brace? Again, that’s up to interpretation. Reeves’ take: “I do not read it that way, as the ATF has explained that a single factor would not bring something into the realm of SBR.”
All this talk of “factors” which are mostly features. Yet, ATF eliminated its point-based AR pistol worksheet which was factor/feature based. Note that the ATF has several information sheets available to help gun owners understand the ins and outs of the new rule, including an extensive FAQ document and a PowerPoint presentation on “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces.’” All of that explanatory material can be accessed by clicking here. In the end, there are still many questions unanswered about the new ATF rule on pistol braces that need to be answered. When looking at the rule, it’s important to look past all the armchair interpretation and speculation and look at what is now on paper in black and white.
“FAQs, form instructions, those aren’t law—they are guidance,” Reeves said. “And there’s a huge difference between law and guidance. “A Q&A on E-forms does not amount to a change in the law.”
About the Author
Freelance writer and editor Mark Chesnut is the owner/editorial director at Red Setter Communications LLC. An avid hunter, shooter and political observer, he has been covering Second Amendment issues and politics on a near-daily basis for over 20 years.
If you have any thoughts or comments on this article, we’d love to hear them. Email us at FirearmsNews@Outdoorsg.com.