Adam Kraut | July 5, 2019
The letter states:
[Firearms Technology Industry Services Branch] FTISB has previously determined that “stabilizing braces” may be assembled on firearms as accessories… In contrast to stocks on rifles or shotguns…”stabilizing braces” are merely accessories and not relevant to the classification of a “pistol” under the statutory definition. That is, a folding stock on a rifle or shotgun is included in overall length measurements because the firearm must be “designed or redesigned….and intended to be fired from the shoulder” to be so classified. The stock is therefore an essential element in the statutory definition.
What Does This Mean?
Based on the letter, ATF is taking the position that because a stabilizing brace is not an integral part of the firearm, it is not relevant to the overall length measurement. This interpretation opens a number of people up to potential issues of running afoul of the National Firearms Act (“NFA”), particularly those who have built AR or similar style pistols which have a stabilizing brace and vertical foregrip.
To understand why, the definitions must be examined. The term “any other weapon” is defined to include:
…any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive… Such term shall not include a pistol or a revolver having a rifled bore… (emphasis added).
The term pistol is defined as:
A weapon originally designed, made, and intended to fire a projectile (bullet) from one or more barrels when held in one hand… (emphasis added).
ATF has taken the position that once a vertical foregrip has been added to a firearm, it is no longer designed to be fired when held in one hand, removing it from the definition of a pistol. It should be noted that ATF previously used this argument in the Ninth Circuit and actually lost on that point. However, that doesn’t mean ATF could not prevail in a different court.
From the Ninth Circuit’s unpublished decision:
The provision defining “pistol” for the purposes of the statute is 27 C.F.R. § 179.11, which defines a pistol as “a weapon originally designed, made, and intended to fire a projectile (bullet) from one or more barrels when held in one hand ….” The government argues that because the Calico was modified to be fired with two hands, it “falls out” of the definition of pistol and falls back into the definition of “any other weapon” in § 5845. This argument ignores the definition’s requirement that the weapon be capable of being held with one hand at the time it was originally designed and made. As written, this definition does not consider modifications of the weapon by the owner. The Calico was originally designed and made to be fired with one hand, and still could be, despite the addition of a foregrip.
U.S. v. Fix, 4 Fed. Appx. 324, *2 (9th Cir. 2001).
On top of that, ATF has consistently held that the overall length of 26 inches is the breaking point for concealability. Put another way, if the firearm has an overall length of less than 26 inches, it places it into a category of arms that could be considered to be regulated by the NFA depending on their other characteristics. If it has an overall length greater than 26 inches, it could remove it from those class of firearms, again, depending on their characteristics.
For this particular example, if the pistol has an overall length greater than 26 inches, it is not generally considered concealable for the purposes of the AOW definition, although ATF has stated in letters that if there was evidence the firearm were concealed by a person, it could still be considered an AOW. ATF’s current position is that by adding a foregrip to it, it becomes a “firearm” since it is no longer designed to be fired when held in one hand. If the overall length was less than 26 inches, and a foregrip were added, it would be classified as an AOW.
In the letter, ATF also specifies that:
Makers also create an artificial overall length measurement by attaching a folding stabilizing brace. Such a measurement would be problematic because the firearm could avoid classification as an “AOW,” yet retain the conceivability and remain fully functional. Measuring a folding (or telescoping) stabilizing brace would therefore undermine the comprehensive statutory and regulatory design of the GCA and NFA.…The measurement of a folding or collapsible stabilizing brace in the overall length of a firearm creates an artificial overall length that would permit a maker to avoid classification as an NFA “firearm” without a viable design purpose or legal justification.
It goes on to say that even stationary braces cannot be included in the overall length measurement, but the receiver extension can be.
Based on this new letter, it is safe to say that ATF is taking the position that firearms equipped with stabilizing braces need to have their overall length measured with the brace folded or to the end of the receiver extension if the brace is stationary and non-adjustable. Adding a vertical foregrip to a firearm that has an overall length of less than 26 inches results in the making of an AOW, which is subject to the National Firearms Act.