Federal judge in Texas has denied a request for preliminary injunction against the arm brace rule

Posted on March 31, 2023 by John Pierce

ATF Regulation 2021R-08F which effectively redefines arm-braces as butt-stocks for purposes of evaluating whether a firearm falls under the purview of the National Firearms Act (NFA), went into effect on January 31, 2023, and the amnesty period for compliance ends on May 31, 2023.

Many gun owners have not yet taken steps to comply with this regulation in the hope that one of the many legal challenges filed after the regulation was promulgated would result in a preliminary injunction.

One judge, in Texas, has denied such a request in the case of Mock v. Garland.  See below for the full text of the opinion:

Download (PDF, 290KB)

Several key takeaways from the ruling by Judge:

1. The court feels the term ‘rifle’ is ambiguous, and the ATF has the authority to clarify ambiguous terms in the statutes it is charged with administering (NFA, GCA, etc.).

“Given that other courts have recognized ATF’s authority to interpret the statutes it has been charged with administering when there is an ambiguity, it is not substantially likely that the Final Rule exceeds the agency’s scope of authority on this basis as the statute includes ambiguous terms in its definition of rifle.”

2. The act of defining, or redefining, an ambiguous term in a statute that the ATF is charged with administering is not an act of ‘creating law’ but merely an extension of the agency’s power granted by the original statute and the Administrative Procedures Act.

“Plaintiffs argue that the Final Rule runs afoul of the Constitution’s procedural protections because it ‘is an unreasonable construction of statutory terms and a clear example of the Agencies unlawfully creating law’ and, if an agency has authority to issue legislative rules, ‘that authority requires a clear delegation from Congress.’ Based on the Court’s assessment above that the Final Rule interprets—but does not rewrite—the underlying statutes, the Court finds these arguments unavailing.”

Unfortunately, this ruling is consistent with what I, and many others in the legal community, expected when these legal challenges were mounted given the deference the courts grant to administrative agencies engaged in interpretive rulemaking.

While there are many legal challenges remaining, I would encourage my clients who have not yet acted to contact me to discuss the options available to them.

Posted in 2021R-08F, Administrative Law, Arm Brace, ATF, Court Rulings, Federal Law, SBR, SBS, Second Amendment, Short Barreled Rifles, Short Barreled Shotguns, Stabilizing Brace | Comments Off on Federal judge in Texas has denied a request for preliminary injunction against the arm brace rule

Free arm brace form 1 applications are being approved with conditions that might affect owners in the future

Posted on March 5, 2023 by John Pierce

Those who applied for their ‘free’ arm brace tax stamp using the custom eForms process are already starting to get approvals back.

However, these approvals come with conditions.  As you can see in the photo below, rather than being simply ‘Approved’ as most tax stamps are, these are approved with ‘conditions’.

Specifically, these say they are approved “Pursuant to ATF Final Rule 2021R-08F”.  So … what exactly does that mean?

Let’s look at this from the ATF’s perspective:

  1.  These are items that the ATF has decided were illegal SBRs from their time of manufacture.
  2. The ATF has, in their eyes, magnanimously agreed to give owners of these ‘illegal SBRs’ an amnesty period and free tax stamp if they choose to register them.
  3. With this free tax stamp, the user can put an actual stock on the resulting SBR in place of the arm brace.  In other words, it is a full-blown SBR from that point forward, and the owner received that tax stamp for free.
  4. There are numerous legal challenges already filed and, in the post-Bruen world, it is possible that the rule might be subject to an injunction or be outright overturned in the future.
  5. At that time, those that have these tax stamps will be in possession of an actual SBR with an actual stock … and they didn’t pay the tax on it.

What I interpret this to mean is that, should the rule be overturned, these tax stamps will no longer be valid.  In that case, you will need to remove any stocks, vertical foregrips, or other characteristics you have added that make the item an SBR and return it to a pistol configuration ASAP!

Could I be wrong in my interpretation?  Of course.  But I think that is the most likely outcome should the rule be overturned.  So … if you have applied for, and received, one of the free tax stamps, you should stay aware of any legal challenges.

If you wish, you may sign up to get email updates whenever I post new content on my website, including any updates on the arm brace legal challenges.

Posted in 2021R-08F, Arm Brace, ATF, ATF Ruling, BATFE, eForms, Form 1, Regulatory Rulemaking, SBR, Short Barreled Rifles, Stabilizing Brace, Tax Stamp | Comments Off on Free arm brace form 1 applications are being approved with conditions that might affect owners in the future

The easiest way to understand the arm brace rule

Posted on February 5, 2023 by John Pierce

During one of the virtual training sessions the ATF held earlier this week, one of the presenters made a statement that I think bears repeating.  While it isn’t 100% perfect, I think it can help eliminate some of the misunderstandings that are rampant in the community right now.

What he said was effectively this (paraphrased since I don’t have a word for word transcript):

“The easiest way to understand the arm brace rule is to assume that all we have done is to declare arm braces to be butt stocks but with an amnesty period to come into compliance.”

That really does a good job of framing the issue and answering the questions that keep coming up.  For example:

Q:  What if I don’t want to register my pistol as an SBR?

A:  Then take off the “butt stock” and return it to pistol configuration before the end of the amnesty period.

Q: If I return it to pistol status, does this affect the type of buffer tube I can have on my pistol?

A:  No it does not. Once the ‘butt stock’ is removed, you have a non-nfa pistol. It doesn’t matter whether the pistol has a buffer tube that could possibly accept a ‘butt stock’ any more than it matters that a pistol has a rail which gives it the ability to accept a vertical foregrip. So long as the ‘butt stock’ is not equipped and not in a proximity that could give rise to claims of ‘constructive possession’, then it simply doesn’t matter.

Q:  What do I do with the “butt stock”?

A:  Keep it as an extra for a registered SBR, sell it, discard it, or destroy it.  But if keeping it, make sure your continued possession could not be construed as ‘constructive possession’.

Q:  Can dealers still sell “butt stocks”?

A:  Of course they can.  They are just accessories, and the ATF does not regulate accessories.  You just can’t use them to assemble an unregistered SBR from an AR pistol.

I will add more examples here as they occur to me.  But, as you are thinking about your questions, try to ask them by replacing ‘arm brace’ with ‘butt stock’ and see if the question doesn’t suddenly resolve itself.

Posted in 2021R-08F, Administrative Law, AR Pistols, Arm Brace, ATF, ATF Ruling, BATFE, Federal Law, SBR, Short Barreled Rifles, Stabilizing Brace | Comments Off on The easiest way to understand the arm brace rule

Flying with a suppressor

Posted on February 5, 2023 by John Pierce

About once a month I receive a call or email asking about the legality and process of flying with a suppressor.

Invariably, I am asked whether or not the suppressor can be transported in carry-on luggage since it is merely a tube of metal incapable of doing anything by itself.

The answer is … NO!  You cannot transport a suppressor in carry-on luggage!

Pursuant to 18 U.S. Code § 921(a)(3), a firearm is defined as “(A) any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the frame or receiver of any such weapon; (C) any firearm muffler or firearm silencer; or (D) any destructive device. Such term does not include an antique firearm.”

This is the definition the TSA incorporates in their regulations and enforcement actions, and it most definitely does include suppressors.

Therefore, you should plan to declare your suppressor and transport it in a locked hard-sided container inside your checked luggage.  See the linked page on the TSA website for more details about flying with firearms and ammunition.

Posted in Federal Law, Flying With Firearms, Interstate Travel, Suppressors, TSA | Comments Off on Flying with a suppressor

The arm brace rule (2021R-08F) has been published in the Federal Register, so what do we do next?

Posted on January 31, 2023 by John Pierce

As of January 31, 2023, the arm brace rule (2021R-08F) has been published in the Federal Register. and therefore, has the force and effect of law (unless overturned in the future by a legal challenge).

If you own an arm brace equipped pistol (shotguns and non-pistols are not covered under this rule) which is subject to the rule (see the ATF example document here), you have some decisions to make.

The first decision is whether or not to comply. There are numerous people online who are stating that they simply will not comply.

As an attorney, I cannot advise you to break or ignore the law.  My advice to my clients is to follow one of the compliance options the ATF has laid out in their FAQ while awaiting the results of the multiple legal challenges that are being mounted against the rule.

As laid out above, the options are:

1) Register the arm brace equipped pistol during the 120 day amnesty period to get a free SBR tax stamp.

2) Remove the arm brace from the pistol and either destroy it or remove it from the premises completely (the details of constructive possession are beyond the scope of this article).  This would remove the pistol from the purview of the rule since it is no longer equipped with an arm-brace.

3) Add a 16+ inch barrel to the pistol thereby removing it from the provisions of the NFA regardless of whether it has an arm brace on it.

The other two options, to surrender or destroy the pistol itself, are beyond stupid and deserve no more consideration.

If you have one of my NFA Trusts and wish to use the trust to apply for the free amnesty tax stamp, you need to document the fact that you assigned the arm brace equipped pistol to your trust prior to the date the rule was published.  This documentation is then uploaded during the eForm1 process.

Posted in 2021R-08F, Administrative Law, AR Pistols, Arm Brace, ATF, ATF Ruling, BATFE, eForms, Form 1, NFA Trusts, Regulatory Rulemaking, SBR, Short Barreled Rifles, Stabilizing Brace, Tax Stamp | Comments Off on The arm brace rule (2021R-08F) has been published in the Federal Register, so what do we do next?