Potential short term fix for owners of a pistol with a pistol brace deemed an SBR

Self | Feb 1, 2023 | Myrddin

[Myrddin]

The new ATF pistol brace ruling has been published in the Federal Register starting the 120 day countdown to apply for the ATF tax stamp, surrender the "SBR" to the ATF or destroy the firearm. Anyone who has applied for an ATF tax stamp for an SBR knows this usually takes 6 months to a year for approval. If you apply now, you will be in possession of an SBR without the ATF tax stamp in 120 days. Instant felony.

The purpose of this post is to offer another option. Find an FFL licensed to sell NFA firearms. Arrange for the FFL to store your new "SBR". Call it a "repair". Pay your FFL for the storage service. That solves the problem of being in possession of the NFA SBR without the ATF tax stamp.

This approach provides a means to side-step the possession issue for those who opt to apply for the ATF tax stamp. There are pending bills from Jim Risch (SHORT) that may alleviate the problem. There are pending lawsuits that may provide a judicial resolution. The ATF may rescind the stupid decision. However it works out, having the SBR in the safekeeping of an FFL should alleviate the felony exposure.

[E. Pluribus Unum]

I have been considering a CMMG Banshee but held off because there were indications this was coming.

[Wayne07]

Yo-Yo is exactly, right, here is the specific guidance from the ATF:

—

the Court also explained that an NFA firearm is made if aggregated parts are in
close proximity such that they: (a) serve no useful purpose other than to make an NFA
firearm (e.g., a receiver, an attachable shoulder stock, and a short barrel);
or (b) convert a complete weapon into an NFA firearm (e.g., a pistol and attachable
shoulder stock, or a long-barreled rifle and attachable short barrel)

—

https://www.atf.gov/firearms/docs/ruling/2011-4-pistols-configured-rifles-rifles-configured-pistols/download

[Who is John Galt?]

After 120 days, AS LONG AS YOU SUBMITTED THE eFORM 1 PRIOR TO THE 120 DAY DEADLINE, you're still legally in possession until you either receive your approved form and stamp, or your application is denied.
If your application is denied, you only need to remove the brace and permanently alter the pistol so the brace cannot be readily reattached. (This usually means removing a carbine buffer tube and replacing it with a dedicated pistol buffer tube for AR platforms.)

There may (or may not) be additional factors involved. For example, it is possible the FBI may fail to complete the required background check within a specified period of time, and the application may enter some status that is neither "approved" nor "denied". In addition, many AR pistols equipped with braces already have standard (short non-adjustable) pistol buffer tubes/receiver extensions. Finally, I have seen it stated repeatedly that the ATF's position is "once a rifle, always a rifle". Whether that is true or not, or true in some cases and not others, I do not know (I am not a lawyer), but it seems that the point in time at which ATF considers or considered any specific brace-equipped pistol to be an SBR may influence the ability to convert that specific firearm to a legal non-braced pistol, rather than to a legal non-SBR rifle (with a barrel 16" or longer).

I am not trying to pick a fight - just suggesting that when it comes to federal firearms laws and regulations, things are sometimes not as simple as they appear.

;^)

[silent majority rising]

Slow Bull Riding. Texas sport!

[uranium penguin]

A pistol with a fwd grip would generally fall under AOW. Not SBR.

[Larry Lucido]

Now that makes more sense.

[Myrddin]

The 922(r) stuff was mostly irrelevant. The discussion of the background check is also a bit nebulous. There is no clue from ATF of when they actually start a "background check" upon submission of the Form 1 for the ATF tax stamp. You submit and wait in the dark until ATF sends a stamp or a denial. It has been 5 to 7 months for the 3 stamps associated with my purchases. All e-form submissions.

Is it 4 million or 40 million potentially affected parties? Either way, the ATF and courts don't have the bandwidth to deal with this level of stupidity from ATF. Are there enough 2A competent lawyers to hire if you guess wrong?

I have one AR lower with a smooth, non-carbine buffer tube for use with pistol uppers. I don't own any braces. The ATF tax stamped SBRs have real rifle stocks.

[Gaffer]

IMO, the ‘brace’ thing was doomed from the start because it was a way to get something that acts like a shoulder stock to go on a short barrel ‘pistol’ making it a short barreled rifle without a stamp.

You purists out there can carp and whine all you want but I doubt any of you would use that ‘brace’ to brace a ‘pistol’ against your forearm instead of your shoulder, especially when many of the ‘braces’ can be extended to fit your shoulder. Flame away.

[Pollard]

Short Barreled Rifle

[Larry Lucido]

[Larry Lucido]

[Yo-Yo]

Finally, I have seen it stated repeatedly that the ATF's position is "once a rifle, always a rifle".

Technically, that should read "starts a rifle, always a rifle." The ATF has repeatedly said that a pistol could be converted to a rifle, then back to a pistol again without penalty, but a rifle cannot be made into a pistol.

And it all goes back to the original 4473 that the firearm or stripped lower was first transferred from an FFL to the first owner. If the 4473 says "pistol" or "other," it can be a pistol or a rifle interchangeably. If it says "rifle," even if the item was a stripped lower, it can only be a rifle.

[Myrddin]

I never purchased a brace as I expected ATF would eventually come back with an SBR designation. I built a couple AR pistols, but they are just not much fun to shoot. I'll probably replace the barrels with a 16.1 inch or longer in a more interesting caliber.

[Yo-Yo]

The 922(r) stuff was mostly irrelevant. The discussion of the background check is also a bit nebulous.

That was because there were two rumors going around when the final rule was released by the ATF, one said that any imported pistol that had a brace attached was now an SBR and was in violation of 922(r) and the only cure was to destroy the firearm. A LOT of people have $2,000 braced CZ Scorpion pistols, and they were freaking out.

Is it 4 million or 40 million potentially affected parties? Either way, the ATF and courts don't have the bandwidth to deal with this level of stupidity from ATF. Are there enough 2A competent lawyers to hire if you guess wrong?

I think that's part of the reason why the ATF created a special eForm 1 for this braced pistol campaign, so that those applications could be treated differently than a regular eForm 1 for a suppressor or 'normal' SBR application. In any case, the ATF in its rule said that as long as you filed under the deadline, you're not in jeopardy even if it takes 10 years to clear the backlog. What you cannot do until you receive your stamp is to transfer the braced pistol to anyone else, including a face-to-face transfer. Only the person who submitted the eForm 1 can possess it. Once the stamp is approved, the buyer must have an approved eForm in their hands before they can possess it.

I have one AR lower with a smooth, non-carbine buffer tube for use with pistol uppers. I don't own any braces. The ATF tax stamped SBRs have real rifle stocks.

If you already own SBRs, then you missed a once in a lifetime opportunity to get another one free of charge. Pity.

[Carriage Hill]

I have a 2003 Class III AR-15 SBR (Rock Island Arms) w/ Class III Advanced Armaments Suppressor; took 2mos back then to get the paperwork/ tax stamp. Suppressor fits my other AR-15s just fine, after flash hiders are removed.

[Yo-Yo]

IMO, the ‘brace’ thing was doomed from the start because it was a way to get something that acts like a shoulder stock to go on a short barrel ‘pistol’ making it a short barreled rifle without a stamp.

I think you're right, and do you remember a couple of years ago when the ATF came out with a ruling that if you shouldered a brace then you 'remanufactured' the braced pistol into an SBR and was in violation of the NFA? The ATF caught so much backlash over that that they withdrew the ruling.

The ATF knew they made a big mistake with their original SIG brace ruling, and have been trying to walk it back ever since, but the braced pistol market exploded on them to the point that I think it's too late to put that genie back into the bottle.

[uranium penguin]

As has been said MANY times.. Little of the NFA/ ATF “rlues” many any sense.

It would make a heck of a lot of sense to reclassify a rifle vs pistol based on caliber. rather than OAL/ stock no stock. and eliminate a lot of the stupidity.

Classic examples of plain stupid are a Colt SAA/ Luger/ 1911/ broom handle with a but stock is a short bbl rifle..

[Yo-Yo]

As has been said MANY times.. Little of the NFA/ ATF “rlues” many any sense.

And as had been said MANY times, the original National Firearms Act was going to subject all pistols with the same $200 tax as machine guns and silencers, so the SBR and SBS rules were added to close a loophole of using a sawed-off rifle in place of a pistol.

The pistol provision was removed from the NFA prior to passage, but the SBR and SBS provisions remained, giving us the ridiculous situation we find today, where an AR pistol chambered in 5.56 is legal, but putting a stock on it makes it an NFA item.

[Gaffer]

If we’re relegated to accept the SBR designation and all that comes with it, making a stand on a “pistol brace” that circumvents the stamp and hoops one has to jump through isn’t the hill to stand on, IMO.

Personally? I think the ATF should be disbanded and demolished and no restrictions meted out on 2A weapons but that’s not our reality.

[gundog]

So, by the ATF’s reasoning, if you own an AR pistol and an AR rifle of the same caliber, you could be guilty of “constructive possession”? You could, after all, swap a sort barreled pistol upper onto a rifle lower with a stock.