By Daniel G. O’Kelly, Director,
International Firearm Specialist Academy and GunLearn.com
How, after years of AR15 and similar pistols being ok with or without braces, did we end up with the threat of them being changed to SBRs and maybe AOWs?
The first issue to consider is that for decades ATF’s “Firearms Technology Branch” (sic – they always pluralized the adjective) has written opinions and treated them as “rulings” which are to be obeyed as law. The fact is, that due to their status as a regulatory agency, ATF is allowed to provide their insight as clarification on certain issues. Examples are such things as the recommendations they make when asked by the gun industry about licensing requirements, or record-keeping as required by licensees, or the marking requirements concerning firearms. These administrative issues are the type of issues which bear clarification at times, and to which they have the power to administratively hold licensees. It must be made clear though, that these “rulings” which ATF puts out concerning the classification of firearms do not have the force or effect of law and are only the opinion of the person in charge of decisionmaking in a particular part of ATF. That opinion does end up being generally shared by most ATF employees, and becomes the official position of the agency on that particular issue, but is still only an opinion. The fact of what something is according to the definition(s) is determined by a Judge or Jury.
But dealing with the issue of criminal violations of firearm law is another matter. When a technical issue concerning the classification of a firearm becomes the deciding factor of a person’s guilt in a criminal trial, things quickly become confusing to the average Judge or Juror. Once technical confusion sets in, that Judge or Juror may just default to “what ATF said”, placing their blind faith in ATF to be correct in their statements. Too often there is no one in court other than ATF, who has a handle on the technical issue at hand. Lacking an expert testifying for the Defense to clarify the issue without a slant, the person on trial is usually sure to be convicted.
Classifications can be done by anyone with a good command of English and firearm technology, but ATF is generally the only entity which does them. These firearm “classifications” by ATF are the root of the problem because they are not always accurate. An accurate classification is the result of an honest comparison of the item in question to the definitions. However, too many times ATF has purported to have “classified” something as though it satisfied a certain definition although the item classified, definitely did not satisfy the definition (i.e. AR15 lowers, FAL uppers, etc… as firearm receivers). Inaccurate “classifications” by ATF are often the result of a selfserving, perceived need on ATF’s part for the problem to fit the answer. One of the earliest examples was in 1972 when ATF internally admitted that an AR15 lower does not satisfy the definition of a receiver, but they decided that they were going to consider it one anyway so that they could force licensed manufacturers to serialize them. They then proceeded for 48 years to “rule” AR lowers, FAL uppers, etc… as receivers (firearms).
This type of practice has pervaded ATF’s Firearm Technology Branch (FTB), now known as the Firearm and Ammunition Technology Division (FATD), for decades. I recall in the early 2000’s that after a large number of Russian PPsh41 machinegun parts kits had been widely distributed in the U.S., it was finally noticed by ATF that the machineguns had not been properly destroyed according to ATF’s prescribed protocol. As a result, they could be easily reassembled, and were therefore still considered machineguns. Once field Agents who were recovering them door to door reported to HQ how storage of the kits took up too much space in evidence lockers at ATF offices, an edict came from FTB that the PPSH41 barrel trunnion would henceforth be “ruled” a machinegun, and that the Agents then only needed recover the trunnions so that the kits could not be reassembled. I still recall shaking my head upon hearing this as an Agent at the time. How could FTB or any other part of ATF take it upon themselves to summarily say that a part all of a sudden “classified” as a machinegun when it didn’t even come close to satisfying any of the four definitions of one? Regardless, at the time it served a need, so bend the rules to make them fit.
As earlier mentioned, the lower of an AR15 only satisfies 2 of the 4 elements required to qualify as a “receiver” within the written definition, but for 48 years, that is, until early 2020 ATF “ruled” it to be one. They also prosecuted those who possessed or made them as having possessed or made a firearm, and sanctioned licensed dealers who didn’t treat the AR lowers, FAL uppers, etc …as firearms.
There are many other problems which have occurred when ATF has been asked by a member of the industry or the public about the “classification” of an item, as to whether it qualifies as a firearm, and if so, into which category it falls. An item either has the element(s) listed in the definition, or it does not. Yet ATF has at times said that the item does not qualify as a firearm, either under the GCA or the NFA and later reversed themselves and said that it does (i.e. Akins Accelerator, Streetsweeper, USAS12, bumpstocks).
Of course, the definitions of a firearm and the definitions of each individual category of firearm are printed in the law, and available to everyone to read for themselves. The term “classification” merely refers to the process of determining into which definition(s) of firearm(s) if any, an item falls. This can be done by anyone with a reasonable command of English, a reasonable knowledge of firearm technology, and an objective approach. I admit that legal definitions can require a bit of attention to detail but are still meant to be understandable.
For example, the “definition” of a firearm under Title 18 of the Gun Control Act (GCA), actually refers to four different things, and is therefore four definitions. They are;
- A weapon which expels a projectile by the action of an explosive.
- The frame or receiver of the above.
- A silencer
- A destructive device.
So if someone wants to know whether an item is a firearm under the GCA, they don’t need to ask ATF for a “ruling” letter, all they need to do is ask themselves whether the item has the several elements called for in the definition, if there even are more than one (i.e. a weapon, whether it expels a projectile, and if it does so using an explosive). If you need further clarification (i.e. what’s a frame or receiver?), the definition of that word is also in the federal law. Just look it up and you will see that it also has several elements or requirements (houses the hammer, houses the bolt or breechblock, houses the firing mechanism, and is usually threaded to receive the barrel). If you’re familiar with an AR lower, you can already see that it only houses the hammer and firing mechanism, therefore it falls short and isn’t a receiver, and as a result it isn’t a firearm. Of course, submitting something to ATF for their opinion can save a company or an individual a great deal of problems once they know ATF’s opinion of what it is, right or wrong.
It was when ATF decided to start doing this “classification” for those who requested it, and because of the many people who became complacent by allowing ATF to interpret the definitions for them that the problems which we experience today, began. For example, in 1972 ATF wrote their famous “Ruling” that an AR15 lower was a “frame or receiver”, and therefore a firearm, despite the fact that it only has two of the elements called for in the definition of a frame/receiver. In fact they admitted in the same internal document which serves as this “ruling” that it didn’t qualify but that it was the part closest to qualifying. Why did ATF do that?
Because they want every firearm to include a part which counts as a frame/receiver, so that they can require licensed manufacturers to mark it with a serial number, allowing the firearm to be traced if recovered in a crime. That’s a noble intention, but it still isn’t within ATF’s authority. Federal law says that receivers must be marked with a serial number if manufactured by a licensed manufacturer (18 USC 923(i)). Therefore, firearm parts which are not receivers do not have to bear a serial number. However, ATF wants all firearms to have a serial number even though it is not required by law to have one, so it just bent the rules to make them fit, right? The fact is that an AR15 doesn’t have such a part, nor do 60% of the guns being marketed today, including nearly all semiauto pistols. And an individual could have called ATF out on this issue over the last 48 years if the individual had only read the definitions instead of relying on ATF’s self-serving “rulings” (opinions). As a result of the industry and the public having put their faith in ATF, ATF slowly reached the position of becoming a “sacred cow” which wasn’t to be questioned as to whether its rulings were consistent with the definitions, the law, their own previous “rulings”, and the federal regulations. They took advantage of this faith and became self-serving, allowing the end to justify the means.
This practice became enough of a problem that in 2017 ATF was put on notice by Attorney General Sessions by a memorandum reminding them that their “rulings” (opinions) do not have the force and effect of law, that they were evading the present system of law-making by issuing them, and that they were to stop doing so. Since then, this prohibition was relaxed somewhat to allow them to guide the industry where really needed.
Generally, when a court hears a case hinging on a technical firearm issue, the Judge and/or Jurors can quickly become confused and then they generally default to “what ATF said” because they trust that ATF applies the definitions and regulations without a slant. As a result, the Defendant is normally sure to be convicted. What allows this to happen is the fact that there is usually no one in the court with an understanding of firearms and the definitions/regulations other than ATF. However, when the Defense hires an expert to explain the issue(s) without a slant, the shortcuts taken by ATF become exposed for what they are.
This occurred most recently in December of 2019 when I testified in Federal Court in Toledo. Federal Judge Carr agreed with me, in U.S v. Rowold that an AR15 lower does not satisfy the definition of a receiver and dismissed the case. He called ATF’s position on AR lowers “plainly erroneous”. He added that ATF has a duty to fix the problem and that “misapplying the law for a long time provides no immunity from scrutiny”. This success was the result of testifying to the same issue in a series of cases over a 6 year period. I had first exposed this issue in the Lycurgan, Inc. v. B. Todd Jones, Director of ATF case in San Diego in 2014, which resulted in ATF returning nearly 6000 unfinished AR lowers to Karras. I testified to it again in the Jiminez case in Oakland in 2015, which resulted in Attorney General Loretta Lynch writing to House Speaker Paul Ryan to say that if ATF wants an AR lower to be considered a firearm under the law, then it should pursue “regulatory or administrative action”, but ATF did nothing. I next testified about this in the US v. Roh case in 2018. Judge Selna gave a tentative order in that case that AR lowers are not firearms. He wrote that “No reasonable person would understand that a part constitutes a receiver where it lacks the components specified in the regulation,”. However, ATF still never made a move on the issue until early 2020 after the loss of the Rowold case. Sadly, just before the Rowold victory, a man from Oklahoma was sentenced to federal prison for this not-illegal issue. Jason Scott Pedro was convicted in November of 2019 for possession of an AR lower and sentenced to seven years because his lawyer had not hired an expert to explain to the court that ATF was wrong in their “classification”. His lawyer has appealed.
Their practice of operating outside of the definitions and the regulations brings us to the recent issue of ATF having published the factors which it considers when determining whether (in their opinion) braced pistols are SBRs. The first thing to take note of there, is that on 11/26/12 ATF wrote (“ruled”) that the forearm brace does not alter the classification of a pistol. Then on 3/5/14 their Chief of the Firearm Technology Branch, Earl Griffith, wrote (“ruled”) that even the intentional firing of a brace from the shoulder was not a violation of law and did not alter the classification of a firearm. Then on 10/28/14, the Acting Chief of the Technology Branch, Max Kingery, wrote (“ruled”) that firing a brace-equipped pistol from the shoulder is a violation of law and does alter the classification of the firearm.
It is these reversals that are the second source of ATF’s problems. It’s next to impossible for an agency to maintain credibility once it has done so, especially more than once. Then in 2017 ATF published an open letter in an attempt to clarify their position on the use of braces but did as much to confuse the issue as to clarify it, by saying that;
“Comfortably fired”? By whom? Notice that their whole position is based on the presupposition that every shooter will find comfort in the same length of stock or brace, regardless of the height, arm-length, etc… This is akin to a regulatory agency “ruling” that shoes are all to be a certain size, otherwise they are considered some other device. Just like shoulder-stocks have adjustable-lengths due to varying sizes of people, forearm braces need to be adjusted to the length of the shooters forearm. I will agree though that someone who removes the Velcro strap from the brace or makes it too long for anyone to attach to the forearm and then “in fact shoots the firearm from the shoulder using the accessory as a shoulder-stock” has only themselves to blame.
Recently ATF became vocal about the importability and “classification” of brace equipped pistols. Concerning their importability, ATF has alluded to the idea that such firearms are not importable as cited in the recent Wiley Law Firm Client Alert, because the guns are NFA Any Other Weapons in ATF’s opinion (concealable firearms other than pistols and revolvers).
If we look at the definitions of a handgun and of an Any Other Weapon, you’ll see that pistols which have foregrips, whether horizontal, angled, vertical, or other, do not satisfy the definition of a handgun and do fall into the definition of an AOW. Don’t kill the messenger, and I have no idea why ATF didn’t render this opinion when the first ones were marketed rather than waiting 40 years, but the fact remains that this is the only definition which pistols with foregrips satisfies.
Concerning ATF’s recent idea that some domestically-made versions of braced-pistols may be NFA Short-barreled rifles, keep in mind that the same firearm can have the elements which satisfy the definition of an SBR and the elements which satisfy the definition of an AOW. However, regardless of whether the gun is found to be an unregistered SBR or unregistered AOW, the criminal charge is still a violation of the same law (26 USC 5861(d)).
There is also the ridiculous fact while ATF might consider an imported braced AR pistol an AOW, that there’s been no mention by ATF of American-made braced AR pistols being AOWs, since they would likely have the same features. However, ATF has referred to many of them as possibly being short-barreled rifles (SBR). This definition can only fit if the two salient elements of that definition are present. Those are, having a barrel shorter than 16”, and being “designed to be fired from the shoulder”
ATF’s insistence about braced AR pistols being SBRs resulted in ATF being notified by seven members of Congress on 6/16/20, that ATF has given the public mixed signals on this issue since 2012, and that their recent opinion has put many gun owners in legal jeopardy without clearly-stated guidelines as to what ATF believes makes these guns SBRs.
ATF then had to respond to the letter from Congress in writing with the parameters they use to consider some braced pistols SBRs. Their written response was in the form of a General Notice, published in the Federal Register. It’s important to note that when ATF wants to follow the channels prescribed by law to make a change which has the force and effect of law, they must publish in the Federal Register what is known as a Proposed New Rule Making, allowing the public 90 days to respond with its opinions on the proposed change. The fact that they only published a General Notice on this issue, rather than an NPRM, didn’t require a 90-day comment period. The 17 days allowed for public comments ends on 1/4/21.
If you’d like to respond, the following are a guide for points at issue.
Notice in the document that ATF cites several reasons for how a braced pistol “can” be used as an SBR. What does that have to do with anything? Are all screwdrivers, hammers, etc… now forbidden from being carried because they “can” be used as weapons? There’s a huge difference between “can” and ”designed to be“. The law says that a gun with a rifled bore is a rifle if it’s “designed to be fired from the shoulder“, not if it can be fired from the shoulder. This of course falls in line with ATFs practice of bending the rule to make something fit into it.
ATF continues to say, in effect, that if the gun can be described as able to be fired from the shoulder that it is designed to be fired from the shoulder. Does this mean that brace equipped pistols are all SBRs for small people? How can this be equitable under the law since small individuals have short enough arms that the gun is not only possible but “comfortable” to be fired from the shoulder? The leaps in logic here are amazing. So, there’s certainly a legal issue to be hashed out in court. One that ATF will likely lose if these points are brought to light.
Before ATF even begins listing the criteria that they consider, they make the illogical comment that “Accordingly, ATF must evaluate whether a particular firearm configured with a stabilizing brace bears the objective features of a firearm designed and intended to be fired from the shoulder, and is thus subject to the NFA…” There are only a few “objective features” of a firearm designed and intended to be fired from the shoulder. Those are a shoulder stock, a short-relief optic, and the impossibility of attachment to the forearm, as all the rest are subjective.
They then comically cite that “…the NFA is to regulate certain weapons likely to be used for criminal purposes, US v. Thompson/Center Arms Co. 504 U.S. 505, 517 (1992), ATF cannot ignore the design features of a firearm that place it within the scope of NFA’s regulation simply because the manufacturer characterizes or markets a firearm accessory in a manner that does not correspond to it’s objective design”.
This is priceless. Hey ATF, you LOST that case! I encourage the reader to check the internet and see that ATF was told in this case by the U.S. Supreme Court that it is legal to have a 16” barrel and a shoulder stock along with your Contender model pistol, and that the owner may go from pistol to rifle and back to pistol legally. Yet ATF is here citing it as though this case was a victory where they stopped a flagrant NFA violation! How can they have the audacity to continue to treat people as though they’re stupid? ATF has even published an actual ruling (#2011-4) since then, which states that you may legally possess the parts to go from pistol to rifle and back to pistol!
They then list their criteria which they consider concerning whether a braced pistol is an SBR. I’ve listed them in categories according to my opinion of their applicability. However, considering ATF’s position on them, the reader should exercise caution and avoid all of these features if possible.
The following are dependent on the size of the shooter. Who’s to say that a 6’4” bodybuilder can’t handle a .50 Beowulf pistol with a brace? Who’s to say that a 4’9” shooter can handle a .223 cartridge? Different sizes = different needs.
- “The type and caliber of firearm to which the stabilizing brace or similar item is installed. A large caliber firearm that is impractical to fire with one hand because of recoil or other factors, even with an arm brace, is likely to be considered a rifle or shotgun.”
- “The weight and length of the firearm used with the stabilizing brace.”
- “Length of Pull.” Doesn’t something have to be a shoulder stock before this term even makes sense?
The following are very subjective in my opinion, and again are only a matter of ATF’s opinion.
- “The comparative function of the attachment when utilized as a stabilizing brace compared to its alternate use as a shouldering device;”
- “The design of the stabilizing brace compared to known shoulder stock designs;”
- “The amount of rear contact surface area of the stabilizing brace…;” Doesn’t this also enable the firearm to be stood on end? If there are two or more uses for this, why assume that this feature is “designed” for criminal intent?
- Any shared or interchangeable parts with known shoulder stocks;
- Any other feature of the brace that improves the weapon’s effectiveness from the shoulder-firing position without providing a corresponding benefit to the effectiveness of the stability and support provided by the brace’s use on the arm.
The following may have merit in a prosecution for possession of an unregistered SBR,
and should definitely be avoided.
- “Attachment Method. Use of these items indicates that the weapon is designed and intended to be fired from the shoulder because they extend a stabilizing brace beyond a point that is useful for something other than shoulder support.”
- “The material used to make the attachment that indicates whether the brace is designed and intended to be pressed against the shoulder for support, or actually used on the arm;”
- Aim Point. If the aim point …results in an upward or downward trajectory that could not accurately hit a target, this may indicate the attachment was not designed as a stabilizing brace.
- Sights and Scopes. Incorporation of sights or scopes that possess eye relief incompatible with one-handed firing may indicate that the weapon is not a “pistol”…
- Peripheral Accessories. Installation of peripheral accessories commonly found on rifles or shotguns… This includes, but is not limited to, bipods/monopods… magazine or drum that accepts so many cartridges that it increases the overall weight … that it is impractical to fire the weapon with one hand …
- Secondary Grip. The presence of a secondary grip may indicate that the weapon is not a “pistol” because it is not designed to be held and fired by one hand. This one is funny. “May”? Hey ATF, why don’t you take the position that a vertical foregrip on a Glock only “may” be used to fire with two hands, rather than calling it an AOW? Braced pistols all have a secondary grip, …so why are AR and AK pistols, etc… “classified” as “pistols” in the first place?
In summary, most of the above equates to the comparison that a screwdriver can be used as a prybar. ATF’s position is that if they find enough features which indicate that you intend to open a paint can with it, that they will call it a prybar and prosecute you. However, they still haven’t stated how many features that would take. So, the matter is still purely subject to their whims.