The Saga of “Stabilizing Braces” and the BATFE

Many hailed the SB15 as a hack to get around the National Firearms Act (NFA) and its Class III SBR regulations that cite the NFA, 26 USCS § 5845 defining “firearm” as “a shotgun having a barrel or barrels of less than 18 inches in length” and “a rifle having a barrel or barrels of less than 16 inches in length.” Some individuals, groups, and publications (not to be named in this article for fear of “upsetting” them – but you know who you are) even went so far as to interpret the ruling for the use of the brace on AR pistols as to feature videos, pictures, and articles using the SB15 in both the forearm and shoulder-fire configurations. The parallels were just too much for many to ignore, as the SB15’s design and appearance closely resembled the standard collapsible rifle stock. As a result, the public and law enforcement bombarded the BATFE with requests for clarification on various legality issues in the use of the brace. The BATFE then issued a formal letter in March 2014 while responding to a Colorado Police Officer whom inquired about the use of a brace on an AR pistol.

“Accessories such as the Sig Stability Brace have not been classified…as shoulder stocks and, therefore, using the brace improperly does not constitute a design change. We [the BATFE] do not classify weapons based on how an individual uses the weapon.”

Meanwhile, the BATFE struggled with the brace’s application on current regulations. Its design was intended as mounting an AR pistol on the forearm, but clearly many saw alternate uses. Also keep in mind the political environment at the time as well; this was amid the fallout from Sandy Hook, surge in gun and ammo sales, and 2013 budgetary shortfalls in government where the BATFE took significant cutbacks to its 2014 manning. So it’s focus on operations and the law was stressed. On 10 November 2014 the BATFE muddied the waters further when pressed by Black Aces Tactical owner Eric Lemoine for the use of the SIG braces on shotguns in another letter saying,

“The submitted weapon, as described and depicted above … is not a ‘firearm’ as defined by the NFA provided the SB15 pistol stabilizing brace is used as originally designed and not used as a shoulder stock. However, should an individual utilize the SB15 pistol stabilizing brace on the submitted sample as a shoulder stock to fire the weapon from the shoulder, this firearm would then be classified as a ‘short-barreled shotgun.”

Problem is, this was never a formal ruling by the BATFE, merely a direct letter to a manufacturer that had asked for clarification and then spread on the Internet like wildfire. The statements by Acting Chief of the BATFE’s Firearms Technology Branch Max Kingery never amounted to a formal agency position. For the agency, its original position on the brace had not changed since first addressed in 2012/2013.

Over time, other letters emerged as gun owners continued to press the BATFE, and further opinion letters were sent to their requestor and (not surprisingly) then posted on the Internet. In December 2014, the BATFE’s Mr. Kingery responded to a new SIG brace design, but now added a clarifying detail in his opinion letter. The brace was only approved in 2012 for its intended purpose, as a stabilizer mounted to the forearm, but when shouldered “would convert a firearm in a manner that would cause it to be classified as a “rifle” and thus a “firearm” regulated by the NFA” for SBRs. So now clarifying language was added into the open letter response that immediately drew the ire of many citing the BATFE as backtracking on its previous position and initial compliance letter with SIG.

Then on 16 January 2015 the BATFE’s Mr. Kingery posted yet another (man, get an actual office Chief already BATFE) open opinion letter to the public. (Kingery) In its entirety he wrote,

The Firearms and Ammunition Technology Division (FATD), Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) has received inquiries from the public concerning the proper use of devices recently marketed as “stabilizing braces.” These devices are described as “a shooter’s aid that is designed to improve the single-handed shooting performance of buffer tube equipped pistols.” The device claims to enhance accuracy and reduce felt recoil when using an AR-style pistol.

These items are intended to improve accuracy by using the operator’s forearm to provide stable support for the AR-type pistol. BATFE has previously determined that attaching the brace to a firearm does not alter the classification of the firearm or subject the firearm to National Firearms Act (NFA) control. However, this classification is based upon the use of the device as designed. When the device is redesigned for use as a shoulder stock on a handgun with a rifled barrel under 16 inches in length, the firearm is properly classified as a firearm under the NFA.

The NFA, 26 USCS § 5845, defines “firearm,” in relevant part, as “a shotgun having a barrel or barrels of less than 18 inches in length” and “a rifle having a barrel or barrels of less than 16 inches in length.” That section defines both “rifle” and “shotgun” as “a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder….” (Emphasis added).

Pursuant to the plain language of the statute, BATFE and its predecessor agency have long held that a pistol with a barrel less than 16 inches in length and an attached shoulder stock is a NFA “firearm.” For example, in Revenue Ruling 61-45, Luger and Mauser pistols “having a barrel of less than 16 inches in length with an attachable shoulder stock affixed” were each classified as a “short barrel rifle…within the purview of the National Firearms Act.”

In classifying the originally submitted design, BATFE considered the objective design of the item as well as the stated purpose of the item. In submitting this device for classification, the designer noted that the intent of the buffer tube forearm brace is to facilitate one handed firing of the AR15 pistol for those with limited strength or mobility due to a handicap. It also performs the function of sufficiently padding the buffer tube in order to reduce bruising to the forearm while firing with one hand. Sliding and securing the brace onto ones forearm and latching the Velcro straps, distributes the weight of the weapon evenly and assures a snug fit. Therefore, it is no longer necessary to dangerously “muscle” this large pistol during the one handed aiming process, and recoil is dispersed significantly, resulting in more accurate shooting without compromising safety or comfort. (Spencer)

In the classification letter of November 26, 2012, BATFE noted that a “shooter would insert his or her forearm into the device while gripping the pistol’s handgrip-then tighten the Velcro straps for additional support and retention. Thus configured, the device provides the shooter with additional support of a firearm while it is still held and operated with one hand.” When strapped to the wrist and used as designed, it is clear the device does not allow the firearm to be fired from the shoulder. Therefore, BATFE concluded that, pursuant to the information provided, “the device is not designed or intended to fire a weapon from the shoulder.” In making the classification BATFE determined that the objective design characteristics of the stabilizing brace supported the stated intent.

BATFE hereby confirms that if used as designed—to assist shooters in stabilizing a handgun while shooting with a single hand—the device is not considered a shoulder stock and therefore may be attached to a handgun without making a NFA firearm. However, BATFE has received numerous inquiries regarding alternate uses for this device, including use as a shoulder stock. Because the NFA defines both rifle and shotgun to include any “weapon designed or redesigned, made or remade, and intended to be fired from the shoulder,” any person who redesigns a stabilizing brace for use as a shoulder stock makes a NFA firearm when attached to a pistol with a rifled barrel under 16 inches in length or a handgun with a smooth bore under 18 inches in length.

The GCA does not define the term “redesign” and therefore BATFE applies the common meaning. “Redesign” is defined as “to alter the appearance or function of.” See e.g. Webster’s II New College Dictionary, Third Ed. (2005). This is not a novel interpretation. For example BATFE has previously advised that an individual possesses a destructive device when possessing anti-personnel ammunition with an otherwise unregulated 37/38mm flare launcher. See BATFE Ruling 95-3. Further, BATFE has advised that even use of an unregulated flare and flare launcher as a weapon results in the making of a NFA weapon. Similarly, BATFE has advised that, although otherwise unregulated, the use of certain nail guns as weapons may result in classification as an “any other weapon.”

The pistol stabilizing brace was neither “designed” nor approved to be used as a shoulder stock, and therefore use as a shoulder stock constitutes a “redesign” of the device because a possessor has changed the very function of the item. Any individual letters stating otherwise are contrary to the plain language of the NFA, misapply Federal law, and are hereby revoked.

Any person who intends to use a handgun stabilizing brace as a shoulder stock on a pistol (having a rifled barrel under 16 inches in length or a smooth bore firearm with a barrel under 18 inches in length) must first file an BATFE Form 1 and pay the applicable tax because the resulting firearm will be subject to all provisions of the NFA.

If you have any questions about the issues addressed in this letter, you may contact the Firearms and Ammunition Technology Division at fire_tech@BATFE.gov or by phone at (304) 616-4300.

Max M. Kingery

Acting Chief

Firearms Technology Criminal Branch

Firearms and Ammunition Technology Division

So that brings us up to the current times, and the post-hyperventilation caused by people only thinking in terms of the latest public letter.

So what does all this mean?

Frankly, if you honestly think the BATFE is coming for each and every one of those SIG braces, and are frothing at the mouth decrying government goons – just stop. A lot of people and organizations rely on hysteria and fear mongering to move the mindless masses on the topic de jour. So don’t fall into that trap and take a minute to breathe. Good to go now?

And if you are among the many that realized from the very onset the SIG brace was never going to be allowed as a shortcut to SBR regulations, congratulations – you demonstrated far more patience and critical thinking skills than many others.

First and foremost the letters issued by Mr. Kingery to direct requestors and manufacturers since 2012 amount to just that; a letter. Not a formal position by the BATFE to change or modify its position from its initial compliance letter to SIG. Indeed the very legal language has remained consistent and it always has come down to intent. Are you adding the brace to assist in shooting from a single hand, or are you adding the brace for other reasons and don’t have any such disability? Are you keeping with the AR pistol’s design to use it as a pistol, or are you intending to use it as an SBR and fire from the shoulder? People can ask all the barracks-room lawyers and “subject matter experts” they want, but the reality is until the BATFE formally and publically revises its position on the 2012 ruling, then the intent of the original findings remain valid.

Secondly, just how in the hell do you think the BATFE is going to enforce such a ruling? I don’t exactly see a lot of BATFE agents at gun ranges trolling for braces asking people how they “intend” to use that AR/AK pistol with a SIG-mounted brace. The same can be said when building one. Contrary to what many initially believed, incidents like the 16 January arrest of three men in California (one of whom was carrying an AR pistol with mounted brace) was never about the brace – it was about the drugs they just also happened to have with them. (McMillan) So the BATFE has a very…very limited means of enforcing its rulings that the brace be maintained as a forearm stabilizer. That said, so many went out and immediately touted the brace as an “in-your-face-BATFE” workaround for the SBR requirements with pictures, reviews, and videos clearly using it outside of its intended use. So given how much pressure was brought on the BATFE by the pro-gun community (because you didn’t see nearly as many anti-gun groups decrying the brace or its implementation) the only ones really driving the hysteria and self-identification has been the pro-gun community.

And lastly, you KNOW SIG is going to fight this ruling. They were more than happy to accept the BATFE’s initial compliance letter – almost verbatum. The fact that over time the BATFE has continued to “clarify” it’s position means that it has constantly refined that initial finding based on the public requests for further explination. Something that SIG isn’t about to let go. SIG recently released a public statement regarding the mid January 2016 public open letter saying,

“The Open Letter goes further to rescind a previous private letter regarding the ‘intent’ of the user of the pistol stabilizing brace. In the letter of January 16, 2015, ATF opines that a person’s actual use of the product as a shoulder stock can change the legal classification of the product. However, the Open Letter explicitly states:

“ATF hereby confirms that if used as designed—to assist shooters in stabilizing a handgun while shooting with a single hand—the device is not considered a shoulder stock and therefore may be attached to a handgun without making a NFA firearm.”

“We question ATF’s reversal in position that the classification of the brace may be altered by its use. We are reviewing the legal precedents and justification for this position, and will address our concerns with ATF in the near future.

“We will vigorously defend the classification of all of our products and our consumers’ right to use them in accordance with the law. If we find that the open letter opinion is outside the scope of the law, we will seek further review.”

Much like SIG’s MPX’s muzzle break, when the BATF classified it in early 2014 as a baffle stack (aka a silencer), the two entities engaged in several rounds of legal dramatics with SIG challenging the BATFE’s classification of their product in court. So when it comes to the vastly popular braces, SIG isn’t about to just roll over and let the language change on such a popular product. So for all the people asking or posting “Is this the end of the SIG brace?” just take a few minutes to breathe and realize that this is part of a long legal process and nothing has really changed. It still, and always has been, about what the user’s intent is for use of the brace. And regardless of intent, don’t go around promoting your use of the brace outside of its approved purpose. Well…not publicly at least.

~For more articles like this one, and information on its author, visit my website at https://sheepdogusa.wordpress.com for more!

Works Cited

Kingery, Max. “Acting Chief.” Open Letter. Firearms and Ammunition Technology Division, 2015.

McMillan, Brandon. “Ceres SWAT Aids in the Arrest of Three for Turlock Home Invasion.” 16 January 2015. Turlock City News. 16 January 2015 <https://www.turlockcitynews.com/crime/item/4515-ceres-swat-aids-in-the-arrest-of-three-for-turlock-home-invasion>.

Spencer, John. “Chief.” Compliance Letter. Bureau of Alcohol, Tobacco, Firearms and Explosives, 2012.