June 05, 2023
Americans who possess what was formerly known as a braced AR-style pistol might now be instant felons, as the compliance period granted by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) for the new Justice Department rule expired May 31. First, a brief explanation. Contrary to many reports, there is nothing illegal about buying, owning or possessing a pistol brace. The issue is now that if the brace is attached to a pistol and because of the type of brace used the ATF rules it to now be a short-barreled rifle (SBR), it is a serious felony to own one that isn’t registered with the government.
The controversial new rule, pushed forward by President Joe Biden, has now moved from compliance presumably to enforcement, and anyone who still possesses such firearms without registering them could now face charges of unlawful possession of a short-barreled rifle (SBR). According to the ATF, that infraction is punishable by up to 10 years imprisonment or $10,000 in fines, or both. And incidentally, it matters not whether you intend to violate the law, doing so would be enough for prosecution.
The contentious issue has, of course, ended up in the courtroom, and results are currently somewhat mixed. The good news is that at least three courts have granted injunctions to the plaintiffs in pistol brace cases, but confusion over who is, and who is not, covered under the injunctions, despite clarifications issued by the courts, has muddied the water to where many Americans could be in violation of the law while “assuming” they are not.
One such case, Mock v. Garland, has seen the Fifth Circuit Court order a preliminary injunction against ATF’s enforcement of the rule. However, as Johanna Reeves with law firm Reeves & Dola points out, “The injunction is limited to the plaintiffs in the case: Maxim Defense Industries LLC, Christopher Lewis, William Mock and the Firearms Policy Coalition Inc.” The court later clarified that plaintiffs include the customers and members whose interests plaintiffs Maxim Defense and Firearms Policy Coalition have represented "since day one of this litigation."
“Whenever the court issues any kind of opinion, or in this case clarification, you want to be really careful you don’t take anything out of context,” Reeves said in an exclusive interview with Firearms News. “One of the things that the Fifth Circuit was pretty keen on was, ‘We are not going to grant a nationwide injunction.’”
On May 31, the last day of the compliance period, District Court Judge Jane J. Boyle clarified that her earlier order enjoining enforcement of the SBR rule in the case SAF v. ATF includes members of another pro-gun group, Second Amendment Foundation. As the judge noted: “A preliminary injunction to the contrary would fail to afford complete relief.”
The outcome of that case will not be decided until the conclusion of Mock v. Garland. On the same day, a Texas court ruled in the case Texas v. ATF that the ATF rule is likely unconstitutional and also issued a preliminary injunction against the ban. One of the Plaintiffs in that lawsuit is the organization Gun Owners of America.
“Defendants are enjoined from enforcing the Final Rule against (1) the private Plaintiffs in this case, including its current members and their resident family members, and (2) individuals employed directly by the State of Texas or its agencies,” Judge Drew Tipton wrote in the court order. That injunction will remain in effect until the Fifth Circuit rules on the merit in Mock v. Garland. The panel has set June 29 as the beginning date for an expedited hearing in the case.
So, Who Is Exempt?
As a result of the court actions, there is a small subset of Americans who cannot have the new law enforced against them. However, determining exactly who those people are—or whether you are one of them—can be confusing. It seems certain that members of the Firearms Policy Coalition are exempt from the new rule, although it’s likely that members who have joined since Jan. 1, 2023, might not be covered under that ruling in Mock v. Garland because of the judge’s comment, “since day one of this litigation.” Because of the ruling in SAF v. ATF, Second Amendment Foundation members would also be immune from prosecution. Since the judge referred to Mock on many occasions in that opinion, members who have joined SAF since Jan. 1 might not be exempt from enforcement.
Based on the Texas ruling, members of Gun Owners of America should be exempt from prosecution, as should individuals “employed directly by the State of Texas or its agencies.”
Problems, obviously, can occur for those who assume they are exempt due to one of the court actions but who the ATF considers not to be included in the injunctions. That’s where good legal advice comes in handy.
“I’m not issuing legal advice here, but people need to be cautious,” Reeves said. “If they have joined these organizations after the filing of these lawsuits it would probably behoove them to seek legal counsel.”
Tough Questions, Tougher Answers
Here are a few other questions that come to mind, and possible things to think about concerning them.
What about FPC and GOA members who are outside of the Fifth Circuit? Presumably members would be exempt regardless of their location, but with the ATF you just never know. Seeking advice from a good attorney would be recommended.
What about people who removed their brace but still possess it? Because of the issue of “constructive possession,” problems can arise for some gun owners. If a person removes their brace but keeps it, and if the pistol it was removed from is the only firearm in possession that the brace could fit on, it could still be considered a short-barreled rifle under constructive possession and the owner could be in violation of the new law.
How about people who left the buffer tube on their pistol after the brace was removed? According to an ATF directive, if it’s a necessary component for the firearm to operate, they’re not going to consider it as a rearward attachment. The question, however, is how well do you trust ATF to follow its own “directive” that isn’t specifically mentioned in the published rule?
While the ATF had determined several times in the past that braced pistols are not SBRs, it’s important to note that such rulings are no longer valid at this point.
“You cannot rely on any classification that was issued before Jan. 31, 2023,” Reeves said. “Any determination or classification that was issued prior to the date of the final rule, ATF revoked.”
Wrapping It Up
What’s the takeaway from all this information about the new SBR rule and court injunctions? Unless you are a member of Firearms Policy Coalition, Gun Owners of America or the Second Amendment Foundation, and were a member prior to Jan. 31, 2023, an employee of a Texas government agency, one of the specifically mentioned plaintiffs in the three court cases detailed here, or you registered your firearm as a short-barreled rifle during the compliance period, it’s highly likely that any braced AR pistol you still possess is now considered a short-barreled rifle by the government and you could be prosecuted for possession of it. At this point, the question of whether the ATF—an enforcement agency—even has the power to make such laws will eventually be determined by the court. Until then, the rules have changed and all gun owners need to understand the situation.
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 nearly 25 years.
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