SB Tactical Braces And ATF
A breakdown of the recent controversy and why it is important to pay attention. Broken down into details for someone new to these terminologies.
If you are following news related to firearms recently then you may have heard about how ATF is suddenly turning pistols with braces into illegal NFA items by classifying the brace as a stock hence making a perfectly legal pistol into a SBR. If this is a lot for you to unpack and is confusing to understand then don’t worry. In this article I will try to break it all down in an easy to understand format. Even if you are already well versed in firearms terminologies I still hope you would find something useful in this long read.
The below is all obviously my opinion only and I am not a lawyer.
Starting with some background first. I would assume no prior knowledge so let me first start with what ATF is. ATF stands for ‘Alcohol, Tobacco and Firearms’ and is a short name used for the Bureau of Alcohol, Tobacco, Firearms and Explosives which is the federal agency that regulates these things. This agency has very broad discretion on what kind of firearms Americans can possess legally and also what can be imported inside the country.
NFA stands for the National Firearms Act that was originally enacted in 1934. This act designates certain categories of weapons as Title II. These are also commonly known as NFA firearms. To legally own such a weapon an individual must have approval from the ATF and pay a $200 tax stamp for each of the title II weapons that they possess. Certain type of FFL licenses also grant a person the privilege to own these kind of weapons legally. The NFA gives broad powers to the ATF when it comes to title II weapons. The ATF can simply deny someone’s request to own the weapon, they control what can and cannot be imported into the country and even registered owners of NFA items need to obtain permission from ATF to take their lawfully owned weapons across state lines. Violations of NFA are taken very seriously and are felonies punishable by up to 10 years in prison. One of the biggest power the ATF has is to classify or reclassify certain types of weapons as NFA items. For e.g. a shotgun can be reclassified as a destructive device. NFA is considered unconstitutional by a lot of 2A supporters and it was actually ruled unconstitutional just 4 years after its passage by the U.S. District Court for the Western District of Arkansas. However that decision was appealed to the Supreme Court where it was promptly reversed as there was no brief filed in favor of the defendants and they did not even appear in front of the court. That was because Miller was himself murdered a month prior.
SBR or Short-barreled rifle is a type of title II weapon which is a shoulder fired rifle/ or a handgun fitted with a stock and has a barrel length less than 16in or overall length less than 26 in. There can be a SBR which is specifically manufactured to be a SBR like Sig Sauer MPX K SBR. Those cases are clean cut and dry and a person trying to acquire such a firearm would know that they need to go through the special ATF approval process, and would be told the same by whichever dealer they are trying to buy the weapon from. Where things get murky and problematic is when the issue of braces vs stocks come up.
Pistol braces, as the name suggests are braces made for pistols to stabilize them, at least thats the original intent of them as per the legalese. That does not mean that they are just a gimmick invented by the gun industry. The pistol braces actually serve a real purpose of stabilizing pistols, especially for folks who are differently abled (for e.g. war veterans with service related disabilities) or if when they are being fired single handedly.
A handgun would obviously not have a barrel more than 16 in but just the act of attaching a brace for stabilizing it would normally not qualify it to be a SBR. However the pistol brace must be approved by the ATF.
Rifle stock, on the other hand is something that is intended to provide support to the shooter to be able to fire the firearm using the shoulder. Now attaching a stock to a handgun would definitely be super illegal and make the firearm a SBR which is a title II NFA firearm. Of course this should not cause any confusions since a brace and a stock look nothing alike.
As you can see above, to a layman these two things are almost identical and both can actually be used as a shoulder support to fire the weapon. Except having one thing on a handgun is legal and the other will land you a decade in federal prison. What does not help is that the gun industry has pushed the limits of what passes for a ‘pistol’ with a brace attached to it. And not that someone can blame them. There is definitely a market for short barreled weapons which can be fired using shoulder support. However the most straightforward way to own them is to buy a specifically manufactured NFA weapon and pay the $200 tax stamp after waiting months for the ATF approval. However buying a ‘pistol’ with a brace essentially provides the same experience to the shooter without the additional hassles that come with the NFA items. For e.g. the below is a pistol made by Sig Sauer, M400 Tread Pistol.
And following is a SBR also made by Sig Sauer
It is abundantly clear that to a person not well versed in the NFA terminologies, both of these would look like a rifle with a stock, however they are not the same. Technically one is a pistol with a stabilizing brace attached to it and another is a SBR.
So what happens if you have bought a pistol with a brace attached to it and now ATF is saying that it is no longer a pistol but a SBR. Well, it is not a hypothetical. This already happened earlier this year when the ATF issued a cease and desist letter to Q, the manufacturer of the honey badger pistol with an attached brace.
Since pistol braces is a legal gray area, therefore the DOJ had asked FTISB, the department within ATF that sets standards for industry, to not make any rulings on what is and is not illegal until there are clear and public standards to determine the same. Which makes sense since so many of these devices are already sold and are actively being sold. (source here, could not independently confirm the notice DOJ sent FTISB). However the ATF sent a cease and desist letter in August to Q, LLC that the honey badger is now classified as a SBR and they should immediately stop production and transfer of the same. Notably, they sent that letter via their Boston field branch and not the FTISB. And suddenly a lot of legal gun owners turned felons illegally in possession of a SBR. However that letter was reversed by ATF on 9 October. But the nature of that reversal is pretty open ended and Q is advising their customers to still treat the honey badger as a NFA item.
However, it seems like going after the honey badger was not the only thing ATF has been working on regarding the braces. Documents released as response to FOIA request by ammoland.com and others revealed that as early as July of 2018, the ATF has notified SB Tactical that only two of their braces are approved and listed 23 braces that are being sold by them as not approved (this does not mean that they are illegal, just that they have not been reviewed.) Curiously, it also claimed that ATF “does not approve stabilizing braces which are similar or based off shoulder stock design”. This claim is observably false, you can see the images at the beginning of this article. One is an approved brace and the second is a stock and they are virtually identical.
Another thing which is very interesting about that letter was that ATF only asked to cease the advertisement of the non approved braces as if they are ATF approved. There was and has been no cease and desist to stop the manufacture of the said unapproved braces, and neither has someone been charged for illegally owning an NFA item based on these braces. ATF has however asked the braces to be sent in for approval which, according to TTAG, SB has submitted to ATF but have not yet received any approval or denial on the same. What is very interesting is that ATF no longer evaluates a brace as a standalone item. To be evaluated, it should be attached to the actual firearm and sent for evaluation. No word on what happens if you attach an accessory on the firearm and send it to ATF and they determine that it is a title II weapon. Does that mean that the company committed felony by assembling that device in the first place? However no one has yet been charged for sending in a weapon for ATF evaluation, but it would be nice to have that safeguard built into law.
To their credit, Republican lawmakers are keeping on top of this issue for a while now, even before the honey badger fiasco came to being, Rep. Gaetz, along with 6 other congressmen, have sent a letter on June 16 to DOJ and ATF citing concerns about secret standards and interpretations of law by ATF which are impossible for someone to know and follow, thus potentially turning millions of Americans into felons overnight. The letter had three very straightforward demands as noted below:
What specific criteria does ATF use to determine whether a firearm is designed and intended to be fired from the shoulder?
What specific ATF publications are available for Americans to determine whether their firearm is designed and intended to be fired from the shoulder?
How many firearms with affixed arm braces have been evaluated by the Firearms and Ammunition Technology Division in support of other law enforcement agencies or criminal prosecutions?
However, they did not receive any response. So on Sep 30 Rep. Gaetz along with three other lawmakers sent a follow up and publicly posted the same on his twitter account
To my knowledge, this was not responded to either. The issue is obviously heating up and a lot of 2A supporters taking notice now, especially because of the worry that the incoming Biden administration will weaponize the authorities of ATF to legislate away gun ownership as much as possible. The issue has now caught the eyes of senators and on Nov 23 senators Cruz, along with 15 of his republican colleagues sent another scathing letter to the ATF demanding clear guidance on what constitutes a NFA firearm and documents related to those determinations with a deadline to respond by Dec 7.
If you have read so far then you would not be wrong in thinking what a clusterf* this whole situation is and how ridiculous the concept of differentiating a brace and a stock is. At most it just seems like a philosophical disagreement on whether something is a brace or a stock, much like whether tomato is a vegetable or a fruit. However the difference is, based on someone’s opinion, millions may overnight turn into felons. That is a lot of power vested in a regulatory agency which obviously goes against the idea of a constitutional republic where laws are supposed to made by congress and not legislated by unelected bureaucrats at executive agencies. At this point I would argue that the best way forward is to take off SBRs from under title II and end this game of whack a mole between industry and ATF. This will free up their valuable resources to focus on actual crimes rather than playing word games which may or may not turn many many law abiding citizens into felons.
Another very telling thing is that there are no democrat lawmakers trying to reign in the authorities of an executive agency overstepping its bounds. When they talk about civil liberties and rule of law and fairness but then ignore issues like this, which can have major major implications on the lives of millions of people, then their other claims all ring hollow. How can someone claim to be the champion of civil liberties and the constitution but then ignore everything when an executive agency tries to grab power like this. The only reasonable explanation is that they do not actually care about principles. If you stand quiet as the executive makes an end run around the constitution to make lives difficult for the people who you do not like (which by the way now includes millions of minorities, the kind of people you claim to care about a lot), then you don’t get to complain when the same thing happens to the class of people you may actually like.