Brace for Impact: the ATF Defies Precedent

On January 31, 2023, the Bureau of Alcohol, Tobacco, and Firearms (ATF) released a finalized ruling on pistol braces with the potential to make at least ten million firearms illegal in the United States. Since the agency first hinted at the reclassification of pistol braces in 2015, American gun owners have fervently opposed the ATF’s attempts to classify these accessories as a method to circumvent federal law. Public dissent was previously observed through the thousands of comments in disagreement with the Justice Department’s 2021 proposition that pistol braces were a legal loophole in federal law. With the 2023 ruling closely resembling its 2021 counterpart via the complete reclassification of pistol-braced firearm as illegal short-barreled rifles, possession of these weapons in a previously legal configuration will soon be punishable as a federal offense if the firearm is unregistered. As a result of the various drafts of the brace ruling remaining fundamentally unchanged in ruling braces as a circumvention of firearm laws, many have argued that these federal bodies have acted without considering public opinion. On top of this, one must also question the longevity of this ruling under the current Supreme Court who has expanded civilian gun-rights nationwide while limiting the authority of federal agencies by using the major-questions doctrine. By focusing on the Court’s ruling in West Virginia v. EPA (2022) alongside the “common use” standard established within U.S. v. Miller (1939) and Heller v. D.C. (2008), I will discuss how the brace ruling directly contradicts judicial precedent and previous legal guidance by ATF officials.
The historical background of pistol braces and their shifting legality in the opinion of the ATF is fundamentally complex. Although the ATF’s recent brace ruling pertains to a long history of congressional legislation and rulemaking by governmental agencies, one major federal law pertains to this issue: the 1934 National Firearms Act or NFA. With the NFA serving as a response to widespread gang violence in American cities, Congress regulated the sale of short-barreled rifles (SBRs) and shotguns (SBSs) as well as other items such as suppressors. To this day, the NFA requires a $200 tax to be paid if an American wants to purchase a new rifle or shotgun with a barrel length of less than 16″ or 18″ respectively.
Today, gun owners file the relevant ATF documentation and purchase an NFA tax stamp to obtain or assemble an SBR for personal defense and other lawful uses. Outside of allowing them to reduce the overall size of their firearm to be more maneuverable within a residence, acquiring an NFA tax stamp enables one to legally mount a buttstock to the rear of a gun to enhance the comfort of the user and even improve the safe usage of the weapon. However, states such as Illinois prohibit their residents from lawfully creating an SBR without special licensing. However, pistol braces have federally been allowed to continually blur the line between short-barreled firearms that do not require registration and formally registered SBRs. Originally designed to assist disabled veterans with the operation of firearms, pistol braces somewhat resemble a buttstock through their general shape but instead include a hole in the back of the accessory to put one’s arm through and a Velcro strap that wraps around the user’s forearm. While rifle stocks and braces appear similar, braces were entirely legal while the usage of a stock on a short-barreled gun without an NFA tax stamp would be automatic felony. Furthermore, thousands of guns with shorter barrels that would otherwise be subject to NFA restrictions have been legally sold since 2012 so long as they were mounted with a brace rather than a stock. For their shorter barrels and capability to be fired one-handed, these types of firearms have become known as “braced pistols” to federal entities such as the ATF and have not received significant challenges to their legality until 2021. As of the 2023 ruling, the agency has classified the role of the previously legal brace and a buttstock as the exact same, which can now result in one being charged with a federal offense for a firearm configuration that has explicitly not required an NFA tax stamp over a decade since its invention.
Aside from the ATF and DOJ’s intentions to supposedly regulate concealable weapons, one of the largest deciding factors in this ruling has been the widespread practice of “shouldering” pistol braces. This technique consists of aiming a braced firearm as though it was an SBR, raising the question as to whether braced pistols are too similar in their functionality to a strictly regulated category of weapons. Following these concerns, the ATF has issued unclear guidance as to whether shouldering a pistol brace is a loophole in the NFA. The uncertainty surrounding shouldering has been exacerbated by statements from the ATF’s Assistant Director and the Chief of the agency’s Firearm Technology Branch which have implied that shouldering was legal. These opinions were even formally passed onto Sig Sauer, one of the nation’s premier firearms manufacturers for the federal government. Citing the position of Mark Barnes, the former Assistant Director, Sig Sauer issued an ATF-corroborated statement that “The ATF’s refined position is that placing a PSB [pistol stabilizing brace] against the shoulder does not, in and of itself, necessarily alter the classification from pistol to short-barreled rifle.” As of its 2023 ruling, the ATF has effectively retracted any and all previous guidance on braces and shouldering despite clear testimonies from agency heads. Concluding that shouldered braces mimic the functionality of stocks too closely, the ATF has made all formerly legal braced pistols into illegal SBRs overnight.
Outside of public skepticism for the ATF’s inconsistent guidance, there are compelling legal arguments against the brace ruling. More specially, the precedents set by several Supreme Court cases appear at odds with the ruling. In particular, the precedent of “common use” set in U.S. v. Miller may threaten the basis of the brace ruling. In the court opinion for Miller, Justice McReynolds’s argues that the militia bore “arms supplied by themselves and of the kind in common use,” which fall under Second Amendment protections. This protection of common weaponry subsequently appeared in Heller in Justice Scalia’s opinion of the Court that the Second Amendment protected armaments “‘in common use at the time’ for lawful purposes like self-defense.” Extending the “common use” standard to modern arms, Scalia also writes that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.” The sheer quantity of legally acquired braced pistols arguably meets the threshold of what one would expect common use to be. According to estimates by the ATF, there are between three to seven million braced pistols in the US. However, figures compiled by the Congressional Research Service posit that ten to forty million of these firearms are currently in circulation amongst Americans. The CRS also adds that “Altering the classification of firearms equipped with braces would likely affect millions of owners.” With the ramifications of the ATF and DOJ’s brace ruling affecting an extremely common configuration of a firearm and millions of legal owners, this ruling has defied the judicial precedent of common use.
Additionally, the brace ruling also appears to violate SCOTUS’s decision in WV v. EPA. In his opinion, Justice Roberts reasoned that the EPA defied the major questions doctrine, the idea that a regulatory agency must receive explicit permission from Congress to issue rulings of massive political and economic significance. Although the ATF could claim the Chevron Deference, a principle that elevates a regulatory agency’s interpretation of a statute in a court of law under previous Congressional authority, the brace ruling’s larger effects call the applicability of that defense into question. Through the major political and social ramifications of banning a configuration of firearm in common use and putting millions of Americans at risk of committing a federal offense, the brace ruling has likely violated the major questions doctrine.
Lastly, the methods the ATF prescribes for complying with this ruling may be violating Congress’s taxational power. Of the several ways Americans can comply with this ruling, one of these options includes registering a braced pistol as an SBR. Although this process would typically entail paying for the tax stamp, the ATF has issued a “forbearance” on this fee and “is not collecting the NFA making taxes for weapons that are affected by this rule.” Given the massive number of braced firearms in circulation, the ATF is forfeiting millions in tax revenue without direct congressional approval while simultaneously ignoring the federal taxation requirements of the NFA. Once again, the ATF is likely defying the major questions doctrine by actively foregoing tax payments in a matter of potentially major economic and political significance.
As a whole, the ATF and DOJ’s brace ruling appears to contradict the precedent set forth in Miller, Heller, and West Virginia v. EPA. The ATF’s forbearance of the NFA tax also infringes upon Congressional authority over taxation and continues to violate the major questions doctrine. Due to braced pistols being reclassified as SBRs under this ruling, the penalty for being caught with an unregistered weapon in this category after the 120-day grace period will a punishment of an up to $250,000 fine and 10 years in prison. With the legal stakes higher than ever for the millions of braced-firearm owners, it is crucial that the public and the judiciary scrutinize the ATF and DOJ’s recent pistol brace ruling.