On Friday, Gun Owners of America published an email reportedly received by one of its members in response to a question to ATF about whether adding a brace to a CZ Scorpion pistol would convert the gun into a short barreled rifle for purposes of the National Firearms Act (NFA). The email appears to claim that, notwithstanding the nationwide injunction against ATF’s rule “Factoring Criteria for Firearms With Attached ‘Stabilizing Braces,’” ATF now considers ALL braced pistols subject to the NFA, based on its reading of the underlying statutes.
As we reported at the time, ATF in January 2023 published a rule that changed over a decade’s worth of settled understanding about pistols with attached stabilizing braces, which in many cases could be made or sold without triggering the NFA. The new rule explicitly revoked all prior guidance and rulings on stabilizing braces. It then added a new clause to the regulatory definition of “rifle,” which stated:
For purposes of this definition, the term “designed or redesigned, made or remade, and intended to be fired from the shoulder” shall include a weapon that is equipped with … a “stabilizing brace” … that provides surface area that allows the weapon to be fired from the shoulder, provided other factors, as described in paragraph (2), indicate that the weapon is designed, made, and intended to be fired from the shoulder.
These “factors,” however, were almost entirely subjective and did not give owners of pistol braces or braced pistols any ascertainable means of determining whether their own set-up was included. A wrong guess, moreover, would be very consequential, as the NFA imposes felony penalties for possessing an SBR without complying with the act’s registration and taxation requirements. Reduced to its essence, the rule seemed to say, “We can’t tell you when a braced pistol becomes an SBR. But we’ll know it when we see it.”
The rule gave current owners of braced pistols that were previously understood to be lawful various options for “compliance,” including such things as destroying the braced pistol or surrendering it to the government.
ATF’s arbitrary and overreaching rule provoked multiple lawsuits, including one by the NRA. These cases have resulted in a series of injunctions. Notably, a federal court in Texas stayed nationwide enforcement of the rule in its entirety on Nov. 8, 2023. The government has appealed that ruling.
Yet an email exchange that occurred between the owner of a CZ Scorpion pistol and ATF in December is now coming to light suggesting that ATF intends, even without the rule, to treat ALL braced pistols as NFA-regulated SBRs.
When asked if adding a brace to the CZ Scorpion would turn it into an SBR subject to the NFA, the ATF’s Firearm Industry Programs Branch (FIPB) reportedly replied: “Federal law requires a pistol with an attached stabilizing brace or stock be registered as a short barreled rifle (SBR).”
This statement, if indeed it reflects current ATF understanding and enforcement policy, would constitute the agency’s most aggressive posture on the issue to date, surpassing the already broad and punitive approach it took in its 2023 rule.
The purported FIPB response acknowledged that enforcement of this rule was enjoined, and asserted, “While the appeal is pending, ATF is complying with the Court’s order.”
Yet ATF’s idea of “compliance,” according to the email, is to assert an even broader authority to treat ALL braced pistols as SBRS (not just ones fulfilling the “factoring criteria” specified in its rule), based on the agency’s reading of the underlying statutes.
Thus, although several federal courts have now ordered ATF not to proceed with enforcement proceedings against braced pistol owners under the rule, the ATF is apparently reserving the right to treat these same gun owners as felons on other pretexts. And because those pretexts do not depend on the rule, they likely do not offer similar opportunities for owners of non-conforming guns to come into “compliance.”
It's important to note, however, that the email purportedly from FIPB is unsigned, it is not on agency letterhead, and it has not been published in the Federal Register (or even on ATF’s website, apparently). Moreover, it deviates from a published rule the agency continues to defend in court.
It seems strange, to say the least, that ATF would go through the resource-intensive process of a publishing an official rule and defending it in multiple federal courts that asserts a narrower view of its authority than the agency’s decision-makers believe it has. The factoring criteria, after all, leave open the possibility that at least some braced pistols would not qualify as SBRs. The email, by contrast, appears to assert a much broader, more categorical approach that all braced pistols fit this category.
It is possible, for example, that the email is a product of a single ATF employee who is trying to discourage a particular individual from adding a brace to a pistol and does not represent official agency policy. Nevertheless, whoever may have been involved in creating the email, the person or persons claims to have answered on behalf of the NFPB, generally.
As this article was being published, NRA-ILA was in the process of trying to verify the authenticity of the email and to determine whether it accurately states the ATF’s current position and enforcement policy on braced pistols. We will report on further information as it becomes available.
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