Are pistol braces going bye-bye? The Biden administration is taking a page from the Trump playbook. Only months into the first year of the Presidency, a slew of new anti-gun measures are being proposed. Rather than going through Congress to represent the will of the people, these new “rules” are being dictated by Executive Orders. The Executive Branch is writing new ‘interpretations’ of laws, published with little fanfare in the Federal Register and enforced by the Bureau of Alcohol, Tobacco, Firearms and Explosives.
1. Braces going Bye-Bye
If you own any kind of brace, rest, ‘stabilizer’ or other contraption that fits the back of an AR-15, it may soon be declared illegal.
The AR-15 is a platform with many possible configurations. Adding a stock classifies it as a ‘rifle’ and requires a 16” or longer barrel. Stabilizing braces are an alternative to a stock. Firearms with braces are ‘pistols’ with no limits on barrel length.
These messy definitions are unique to the United States, thanks to the 1934 National Firearms Act (NFA). The requirements for barrel length are a holdover from that era. Politicians argued that certain minorities in America couldn’t be trusted with handguns. Saner heads prevailed and handguns were removed from the NFA at the 11th hour. Citing celebrity criminals like Bonnie and Clyde with their chopped-down shotguns, legislators kept short-barrel firearms lumped in with machine guns, grenades, and suppressors. In their eyes, possessing an SBR is as dangerous to the community as an unregistered grenade.
Lawmakers could not have anticipated modular firearms like the AR-15. Forget bootleggers with hacksaws; a felony can be committed by accident in as much time as it takes to swap parts from an AR pistol to a rifle.
The Biden administration sees AR pistols as an end run around the NFA. Biden wants to force gun owners to register their AR-15 pistols as short-barreled rifles. This is despite AR pistols being more heavily regulated than rifles. Non-compliance will bring harsh Federal felony firearms charges. The Biden Administration’s fearmongering is a blatant end-run around Congressional laws that forbid a Federal firearms database.
BATFE Worksheet 4999 “Factoring Criteria for Firearms With Braces” has been submitted to the Federal Register public comment.
A firearm weighing at least 64oz and measuring between 12” and 26” overall length will now be held to extra scrutiny (p1, p2). Adjustable buffer tubes, length-of-pull, bipods, weight, and even grips will all score negatively against the firearm in question.
If the BATFE decides a brace is actually a ‘stock’, it must be registered with the NFA as an SBR. No brace or stabilizer currently in production scores less than 4 points on this sheet. Should any innovative designer somehow circumvent their new standards, the BATFE’s language makes it very clear that the goalposts will never stop moving:
The BATFE did a cost analysis as is required due to the scale of these actions. A ‘best case’ scenario of total compliance would result in the firearms industry losing $49,700,000 in sales annually. Gun owners and retailers would also be forced to complete a Form 1/Form 3 authorization request to remanufacture their firearms as NFA items at a cost to dealers of nearly $1000 per unit.
A more drastic proposal would force owners to replace all non-compliant parts. Estimated cost: $125,000,000.
The BATFE could also compel citizens to destroy their braces (as they did with bump stocks). The total loss of product to consumers, retailers, and manufacturers?
2. If the BATFE serializes aluminum bricks, are recycling companies unlicensed manufacturers?
President Trump’s administration ordered the BATFE to examine “bump stocks” with the intended outcome of defining them as parts to make a machine gun. This was in direct conflict with the explicit definition of ‘machine gun’ in section 5845(b) of the National Firearms Act (26 U.S.C. 5845(b)).
This decision set a dangerous precedent, not just for braces (as many gun rights advocates predicted when we protested that EO) but also for 80% lowers.
It has always been legal under Federal law to manufacture firearms for personal use. The sale of 80% receivers complicated this matter for the BATFE. Companies like Polymer80 and Ghost Gunner do not sell ‘firearms’; they sell the raw materials to make them. The BATFE views this business model with extreme skepticism.
The BATFE has determined that an 80% frame is not legally a firearm. It cannot accept a fire control group, which is a key definition of a firearm in Title 27, Code of Federal Regulations, section 478.11: A “firearm receiver” is, “[t]hat part of a firearm which provides housing for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.”
An “80%” AR-15 lower receiver does not meet the definition of a rifle under Title 27. Neither does the Polymer-80 “Glock” handgun frame. In this letter to Atty. Jason Davis, the BATFE concludes that the frames are not ‘readily convertible’, that the shipped components are not ‘firearms receivers’, and that they do not meet the US Munitions Import List definitions for forgings, castings, or machined bodies.
Polymer80 recently offered their 80% frame with a slide, barrel, and loose small parts in the box. Local retailers sold similar bundles, selling bags of loose parts alongside the unfinished frames. The BATFE determined that this package deal now made the 80% kits ‘readily convertible’ and raided Polymer80’s manufacturing plant. Retailers and direct purchasers were warned that they were potentially in possession of an illegally transferred firearm.
It is legal for consumers to manufacture a 80% frame into a firearm. It is legal for FFLs and Polymer80 to ship and sell P80 kits to consumers. It is legal to buy and sell barrels, slides, and small parts to consumers.
But if these all arrive in one box, it magically becomes an untracked firearm in the eyes of the BATFE.
This legal fiction is easily negotiated by cunning tactics such as walking out of the door with the receiver, then walking back inside to buy the remaining parts. Rather than acknowledge how asinine this position is, the BATFE is doubling down. They now want to require all 80% receivers to be serialized as ‘readily convertible’ frames. The trail of logic here leads to the BATFE regulating 0% lowers; or blocks of solid aluminum.
Home CNC machines and 3D printers drop in cost almost daily. Will the BATFE start checking machine time and equipment costs? CNC Code for making receivers is protected as free speech; one wonders how the BATFE intends to regulate people who are in possession of code, a benchtop milling machine, and some aluminum cans.
3. Wait, what was that bit about receivers holding barrels and triggers?
Any AR-15 lower—not just an 80% finished one—fails to meet the definition of firearm set in Title 27. The BATFE is very aware of this obvious conflict. This rule change is a blatant attempt to rewrite Congressional law.
CNN covered the case of Joseph Roe, who ran a manufacturing plant for making ‘ghost guns’. Clients would enter his facility, operate the pre-programmed CNC machinery, and leave with the parts to assemble a working firearm. The BATFE charged him with unlawful manufacture and sale of firearms. The defense asserted that neither the lower nor upper receiver of an AR-15 met the definition of a firearm. Judge James Selna was forced to agree.
Selna’s ruling at a minimum would have eliminated the BATFE’s mandate for manufacturers to serialize lower receivers and for FFLs to document their sales. Rather than press forward, the BATFE dropped the charges and offered Roe a plea deal.
Roe is not the only person to be charged this way. A former ATF agent is making a second career as a formidable witness against the government. Thus far, the BATFE’s actions have been tolerated because they limit their prosecution to part of prosecuting larger criminal enterprises. Given the broad power the BATFE is appointing itself, it is not a stretch to imagine they could redefine what ‘personal use’ means just as easily and charge citizens guilty of a victimless crime.
4. The expanding power of the Administrative State
Gun control groups and law enforcement unions back the Biden administration’s aggressive use of Executive Orders to mend this ‘loophole’. Advocates for gun rights and personal liberties are much less alarmed by the possibility of citizens committing crimes; our concern is how long Congress and Federal agencies have allowed this paper-thin fiction to persist.
Congressional reps on the left and right have used every Presidential election as an opportunity to consolidate more authority in the White House. From there, every President has delegated that authority to the legions of unelected bureaucrats, and the Cabinet appointments that Congress so blindly rubberstamps.
It is becoming a truism of American politics that the real danger is not from the left or right; it is not economics or religion or ethnicity. The greatest threat to liberty in America is the endless consolidation of power in the hands of unelected bureaucrats. Fighting this administration’s attempts to end-run Congressional law is not just a fight for our rights under the 2nd Amendment; it is a hard line against faceless Federal employees overruling Congress at the whims of whomever sits in the White House.