By: Zach McCormick
April 25, 2017
My favorite firearm blog (The Firearm Blog) published a story on how the ATF has changed its opinion on what happens when a citizen shoulders a pistol with an arm brace on it. Sort of...
The short version is that nothing has really changed.
The long version is that, if the article and purported "open letter" are accurate, then "incidental, sporadic or situational use" of a pistol with an arm brace "at or near the shoulder" is not, NOT ok.
If you find yourself re-reading that sentence and rubbing your head you're not alone because the ATF's "opinion" is about as clear as mud. The reason for the confusion is that the ATF didn't say "all pistol arm braces can be shouldered and its ok". Instead, this new opinion says that the widely held interpretation of their 2015 opinion (which concluded that shouldering an arm braced pistol "re-configured" the pistol into an NFA regulated item) is "incorrect and inconsistent with the ATF's interpretation...".
The ATF's "clarification" goes on to state that although shouldering a pistol (with the SB Tactical arm brace) may not be itself a re-configuration that requires a tax stamp, certain other "affirmative steps" will place an item under the purview of the NFA. Unfortunately, little specific direction is provided as to what those steps are. Instead the letter states in part the following:
"If however, the shooter/possessor takes affirmative steps to configure the device for use as a shoulder-stock, for example, configuring the brace so as to permanently affix it to the end of a buffer tube, (thereby creating a length that has no other purpose than to facilitate its use as a stock), removing the arm-strap, or otherwise undermining its ability to be used as a brace-and then in fact shoots the firearm from the shoulder using the accessory as a shoulder stock, that person has objectively "redesigned" the firearm for purposes of the NFA".
The one clear point is that removal of the arm-strap from the SB Tactical brace is a "no-no" in the ATF's view. However, right after that one point of real clarity the letter writer uses the ambiguous catch-all that anything that "otherwise [undermines]" the brace's ability to be a brace is not ok. Though its only "not ok" if the user shoulders AND shoots the firearm.
Again, if your head hurts you are forgiven because this does not make any sense. This is clear when one asks some simple questions. For instance, what is the magic length for an arm brace to be legal? Wouldn't it be ironic if the ATF found a pistol with a lengthy arm brace to be an NFA governed item while simultaneously deeming a rifle of comparable length to fall outside the NFA?
Further, although this opinion seems to only apply to the SB Tactical arm brace (aka the Sig Arm Brace) not all arm braces have straps. How then would the logic in this opinion apply to similar arm brace devices? If the manufacturer of one device includes straps with the brace but doesn't pre-install them does the item become illegal if the straps are not affixed by the user?
Yet another question arises when one looks at the fact that if a converted arm brace only brace only causes a pistol to become reconfigured IF FIRED FROM THE SHOULDER then it conversely means that a converted but unshouldered device is just fine. It that is true, then we are back to the same "its only illegal if its shouldered" stance that the ATF appears to be trying to distance itself from and round and round we go!
Although this opinion letter was ostensibly designed to 'right a wrong' it seems more likely that the ATF has been trying to figure out what to do with itself after opening the flood gates on arm braces. This letter may have been a reaction to the vagueness and the uncertainty that has pervaded the firearms community with respect to this issue and it may also have been an effort by the ATF to retain its de facto status as law maker in this area. After all, what is the actual legal weight of an "opinion letter" like this in court?
What authority the ATF's "opinion letters" carry is a nuanced topic and cannot be properly addressed in full within this article. Suffice it to say that the question has not been fully answered in the federal court system and it is just possible that the ATF is ok with that.
In conclusion, if you are interested in remaining outside the "zone of danger" with respect to arm braces on pistols, you can choose not to shoulder them. However, it seems inevitable that a new wave of youtube videos will be hitting the internet featuring people that are letting their shoulders get cozy with pistol mounted arm braces.
