When you study first and second-order logic, it becomes increasingly frustrating to hear the use of the word “logically” in an argument. In the same way, as the criticism leveled against the ATF is often rooted in the agency's reputation for ambiguous rulemaking paired with their capricious use of power, when they include words like “objective” and “factoring criteria” in the title of their papers, it quickly begins to look like some sort of bureaucratic mysticism. If they just say the words, then it must come true. When it comes to the proposed factors, what we are actually looking at is an AFT Pistol Brace Ban.

Instead of attempting to decipher the intent behind the new proposal letter, we are going to show the burden that it will place on American gun owners by demonstrating what key parts of the proposal will impose, by decree of sorts. Let us not forget to begin with the reminder those proposing to enforce these rules were not elected.

Section 1: Prerequisites

Under this proposed ATF Pistol Brace Ban, in order to qualify as a firearm suitable for use with a stabilizing brace, it must weigh at least 64 ounces/4 pounds, unloaded, and have an overall length between 12 and 26 inches. We encounter the first confusion requirement at this time, as it is unclear whether the firearm must be measured with the brace installed or not, as a Daniel Defense MK18 Pistol immediately falls outside of this range with an SBA3 brace equipped by a half-inch. It is unclear if a 26.5 inch firearm is to be automatically regulated under the NFA, or exempt from the following scrutiny.

Further, firearms such as the B&T APC9K, and the CZ Scorpion Evo3 both fall under the proposed prerequisites. Whether the length considered is referencing a firearm without a brace installed or with one at full extension is yet to be determined, holding ambiguity over firearm frames like the Flux Raider.

Section 2: Accessory Characteristics (Brace)

The central objective of the second section of the proposed ATF Pistol Brace Ban is to determine the design intent of the brace. In short, if the ATF believes that the brace was built intended to be fired from the shoulder, than installing it on a firearm falling under the above prerequisites will effectively be treated like making a Short Barrelled Rifle. This informs the reader that the stakes are high, as having a rifle too short is still worthy of prison time.

Specifically, because the NFA or GCA could be circumvented by substituting a “stabilizing brace” for a traditional shoulder stock on a “short-barreled rifle” (“stabilizing braces” sometimes share close similarities with known stocks), the more features a purported “stabilizing brace” has in common with known shoulder stock designs, the more points it will accumulate.

Factoring Criteria for Firearms with Attached Stabilizing Braces. A Proposed Rule by the Alcohol, Tobacco, Firearms, and Explosives Bureau on 06/10/2021.

The point system requires that the firearm in question score less than 4 after being inspected under certain criteria. Make no mistake, however, as there's little to no way a firearm equipped with a brace will pass the first phase of this Pistol Brace Ban. Points are awarded resembling a known stock design, increased surface area on the rear of the brace, adjustability, A folding counterbalance, being a “fin type” without an arm strap, being a “cuff type” that is determined to be unconvincingly designed.

What brace configured pistols are on the chop? The SBA3 and SBA4 go straight to jail, scoring 8-10 depending on whether the cuff is determined to only partially wrap around the arm, fail to, or be designed not to. In the proposed document, the author identifies an SBA3 as scoring 8 on this second section, but if we argue to simply increase the maximum score, the brace is still up for interpretation. A CZ Scorpion brace by SB tactical could score 2 points for the crime of looking like a stock, 1-2 for the rear surface area, and once again 1-3 depending on how the cuff component is judged. The Tailhook brace on the B&T APC9K falls under the counterbalance category, arbitrarily gaining 2 points for looking like a stock, a possible 1-2 points for rear surface area, and another point for sporting a folding component.

Firearms that do pass Section 2? The ATF did give a few examples of passing firearm/brace combinations. The SB-Mini passes as a fixed, partially wrapping cuff design. A “blade” style brace is shown to fail, the example given gains 2 points for telescoping, 2 for not having a strap, and 1 for lacking features that actively discourage shouldering.

As a result, we can think of only a few braces that would pass. The rear QD feature on the Magpul braces might save them a point if it is interpreted as a feature discouraging shouldering, and with a strap added, keep it below the threshold. But when it comes to their HK94/MP5 brace, they're treading on the ATF's version of Schrödinger's Brace. It's both legitimate and illegitimate at the same time.

Section 3: Configuration of Weapon

The Second set of factors that the ATF will use to consider if a firearm is a Short-Barreled Rifle, and thus regulated by the NFA, is how one configures it. The problem with this, at it's core, is that it creates a metaphorical bridge between someone tinkering in their garage with trying out different new combinations with malicious intent in the form of manufacturing regulated firearms. Where that reasoning fails, however, is that if someone really wanted an SBR, they could easily build one anyway. It's just as easy to install a brace as it is to install a stock. It's just as easy to swap out an upper, whether the firearm is equipped with a brace or stock.

The features considered begin with the “length of pull” a term normally only applied to stocks, which tells that the author of the paper already considered the brace itself to be a form of a stock. Basic explanation: the longer it is, the more points you get. Pass 13.5 inches and go straight to jail. Take that lanky person. This is followed by the method of attachment. Adjustable buffer tubes, or guide rails get you 1 point, a Law Folding adapter gets you 2, and a whole new category of hard-to-interpret descriptions follow: “Modified shoulder stock with rear replaced by ‘stabilizing brace,'” and “attachment method creates an unstable aim point (slant).”

The type of brace used makes a comeback in Section 3, in a pass/fail mathematic. A cuff without a strap, modifying a brace for shouldering, or modifying a stock into a brace all immediately fail the application by adding 4 points to their Section 3 score.

The final considerations reviewed in Section 3 are what else is on the gun. Like an à la carte menu, each item adds points, some determining immediate failure such as a vertical foregrip or a magnified optic with eye relief deemed incompatible with one-handed fire. One point is basically guaranteed here, as a single point is added for “Rifle-type back-up, flip-up sights, or no sights.” (emphasis added) Two points for a hand stop, bipod, or monopod, two more points for a red dot sight, reflex sight, or holographic with a flip-to-side magnifier. Finally, if the overall weight of the firearm is 120 ounces/ 7.5 pounds (note the Army manual considers an M4 to weight 6.48 pounds, before accessories) it automatically gains 4 points and is considered a short-barrelled rifle.

Like Section 2 of the ATF Pistol Brace Ban, if the firearm accrues 4 or more points, it fails to pass as a braced pistol. There are ways, albeit very limited ones, that could result in an AR-15 pistol passing this new suggested criteria, but they are very slim, and with the weight restriction, pretty much rule out most options. Even though one could technically say that it doesn't completely ban the use of a stabilizing brace, it functionally renders them inoperable in all but the most specific of cases. The burden to consider, is that the consumer is not retroactively protected, but instead forced with a financial burden to modify their firearms to comply with the new suggested criteria.

What This Means and Why It Matters

Back in December, during the last opening for comment on the ATF's criteria, it was stated that this move cannot be observed in the void. Although the ATF states that comments provided during the December 2020 window were not considered during the formulation of this new paper:

This proposed rule is a separate action from the Notice on the Objective Factors for Classifying Weapons with “Stabilizing Braces” published on December 18, 2020, and withdrawn on December 31, 2020. No comments received under the withdrawn notice were considered for this proposed rule, and no comments received pursuant to that notice will be considered as part of this proposed rule. Commenters will need to submit new comments in connection with this proposed rule.

Factoring Criteria for Firearms with Attached Stabilizing Braces. A Proposed Rule by the Alcohol, Tobacco, Firearms, and Explosives Bureau on 06/10/2021.

At the same time, this action does not target those who have already chosen to illegally produce Short Barreled Rifles, but instead lumps those who have stayed within the confines of the law with those who have disregarded it completely. In what we called Punishment for Good Behavior, we addressed this concept, as one aspect at the root of the problem. For nearly a decade, Americans have chosen to put braces on their pistols, and not offend the NFA. These new Pistol Brace Ban criteria will render their actions as law-breaking, if not in retrospect, in a single sweep.

There are many arguments to be made at this time, about why such an action is to be viewed with suspicion. Instead of making the error of assuming motive, we focus on both the impact such a rule-making will produce. First, there are an estimated 3 to 10 million of these braces in circulation. While not as common as the Honda Civic, they are certainly ubiquitous across most States. If, hypothetically, every single one is turned in and destroyed, the amount of waste will be considerable.

In addition to this, it is the position of the Executive Branch of the Federal Government at this time, to establish 5 new Task Forces to target organized weapons trafficking in specified regions including what they deem to be corridors of transportation. If a pistol with a brace is determined to be an illegal firearm, there's already a task force available to target the owner. A pincer attack, where the new regulation is put in place, with a ready and willing regulator to execute it.

The new proposal will put a heavy financial burden on Law-Abiding citizens, while adding no additional consequences for those who already disregard the law. In effect, it only makes new criminals. In order for some to comply with the new classification, the financial burden of $200, per braced firearm is unreasonable, and the act of negating the cost, is subversive, in the form of a back door registration. If the $200 is demanded, it will disproportionately affect some communities, further incentivizing them to disregard the law.

On a logistical scale, there is currently no way to properly inform the entire public of this change, and no further way to do so without violating the privacy of the population. The result will likely be either needless death or imprisonment, or the invasion of people's privacy, or a combination of the two. Given the standing that ignorance of the law is not and excuse, those who have not been informed of the change in classification will be unknowingly committing a federal crime, either incentivizing private citizens to become informants for the state, or creating conflicts between otherwise complaint citizens and the law enforcement they interact with.

Finally, instead of spending resources to track down another newly created sub-section of non-violent offenders via a Pistol Brace Ban, such governmental resources (read tax dollars) can be directed toward universally beneficial programs against human trafficking or building more independent infrastructure. The adoption of the NFA hasn't been well received, and instead of reviewing a single piece of equipment, it would be a better use of resources to consider the negative impact of an arbitrary barrel length distinction on the United State's most common carbine.

Commenting on the New Proposed Criteria

The comment period for this Pistol Brace Ban ends on the 8th of September, 2021: a date that should be in our calendars. As we've seen in the past, the comments on such propositions accomplish three things. First and foremost, it retains interaction between American Citizens and its Government: uncomfortable conversation is better than embittered silence. Second, it has worked in the past to show mass opposition to proposed changes. Finally, and perhaps most importantly, it represents the rallying of us as Citizens, in a grass-roots approach to stand up for our First Amendment, and Second Amendment Rights.

• Federal eRulemaking Portal: ATF recommends that you submit your comments to ATF via the Federal eRulemaking portal at www.regulations.gov and follow the instructions. Comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that is provided after you have successfully uploaded your comment.
• Mail: Send written comments to:

Office of Regulatory Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, 99 New York Ave. NE, Mail Stop 6N518, Washington DC 20226; ATTN: ATF 2020R-10.

• Written comments must appear in minimum 12-point font size (.17 inches), include the commenter’s first and last name and full mailing address, be signed, and may be of any length.
• Facsimile: Submit comments by facsimile transmission to (202) 648-9741. Faxed comments must:
  • 1. Be legible and appear in minimum 12-point font size (.17 inches);
  • 2. Be 8 ½” x 11” paper;
  • 3. Be signed and contain the commenter’s complete first and last name and full mailing address; and
  • 4. Be no more than five pages long.

It is advised that you read the original document published by the ATF before submitting your comments, so that it will be maximally effective.

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