December 18, 2020

The ATF is expected to publish a notice in the Federal Register today regarding “Objective Factors for Classifying Weapons with ‘Stabilizing Braces.’”.  This notice suggests that the ATF is changing its interpretation of firearms with stabilizing braces and will treat the majority of them as short-barreled rifles that are subject to the National Firearms Act (“NFA”).  The ATF has repeatedly waffled regarding its position about the legality of attaching stabilizing braces to AR-type pistols and similar firearms with short barrels that are derived from firearms that are most commonly configured as rifles or shotguns.  The stated purpose of the stabilizing braces was to allow such heavy pistols to be fired with the use of a single hand. The ATF issued several letters to firearms industry members evaluating such firearms with a stabilizing brace attached and classifying them as pistols.
The current acting Director of the ATF, Regina Lombardo, however, believes that the majority of these firearms with stabilizing braces are really short-barreled rifles and should be regulated pursuant to the NFA.  This and the classification of 80% receivers as firearms are apparently what she informed the transition team for the Biden administration are the ATF’s top two priorities.  Recently, the ATF’s Boston Field Division issued a cease and desist letter to Q, LLC stating that its Honey Badger pistolwith a stabilizing brace is a short barreled rifle.  There is nothing different between the Honey Badger pistol and many other AR-type pistols with stabilizing braces that the ATF had previously evaluated and concluded were pistols that are not subject to the NFA.
Based on the “Objective Factors for Classifying Weapons with ‘Stabilizing Braces,’” as well as the cease and desist letter that the ATF issued regarding the Honey Badger, it is apparent that the ATF is changing its position regarding the legality of firearms with stabilizing braces, just as it recently did with bump stocks.  The relevant criteria for determining whether firearms with stabilizing braces are short-barreled rifles or short-barreled shotguns for purpose of the NFA is whether they are “designed or redesigned, made or remade, and intended to be fired from the shoulder,” and have a barrel of less than 16” or 18” respectively.  18 U.S.C. § 921(a)(5)-(8); 27 C.F.R. § 478.11.  Importantly, the applicable definitions in the U.S. Code and the Code of Federal Regulations are not being changed.  This means that if the ATF’s new interpretation is upheld by the courts, the majority of firearms with stabilizing braces will have always been subject to the NFA. 
The ATF’s notice advises that for those firearms with stabilizing braces that are considered to be NFA firearms, it will be issuing a separate notice regarding what people who currently possess one of them must do.  It states that this separate notice may provide the following options: (1) remove and dispose of the stabilizing brace; (2) replace the barrel with one that is at least 16” long for rifles or 18” for shotguns; (3) surrender the firearm to the ATF; (4) destroy the firearm; or (5) register it pursuant to the NFA.  The notice states that the ATF intends to waive the $200 registration fee for “those firearms that were made or acquired in good faith prior to publication of this notice.”

Renzulli Law Firm will be closely monitoring developments with the ATF’s position regarding the legality of firearms with stabilizing braces.  If you have any questions concerning this issue, please contact John F. Renzulli or Christopher Renzulli.