If you spend time watching YouTube videos and trolling the gunosphere, you may have run across some videos and other posts announcing that the ATF has now considers any braced AR or AK pistol to be “any other weapon” and is therefore regulated under the National Firearms Act, with all of the paperwork and taxes that goes along with it.
Here’s what you need to know about these claims: THEY ARE NOT TRUE.
No such ruling or communication from the ATF has been issued.
The current hysteria apparently stems from two thing; the ATF’s recent cease and desist letter sent to Q regarding the Honey Badger pistol and an email blast sent by a lawfirm regarding AR and AK pistol imports.
There are two things to keep in mind here. First, the letter regarding the Honey Badger applies only to that one firearm. Yes, it’s possible that the ATF could expand that ruling to other similar firearms, but they have made no such move to do so…and they won’t, at least the 60-day suspension period on their letter expires in December.
Second, the communication from the Wiley law firm is speculation directed to their clients about what could happen regarding imported braced pistols. Read the full letter here.
In company-specific letters, ATF takes the position that if a submitted firearm is too long or too heavy, it fails to meet the definition of “handgun” under the Gun Control Act, as it is not “designed to be held and fired by the use of a single hand.” The Firearms and Ammunition Technology Division (FATD) of ATF—which conducts importability evaluations—says that it is taking a subjective approach to the statute by allowing individual examiners to determine if he or she can fire the weapon with one hand without difficulty.
This approach is resulting in inconsistent determinations, of which the regulated community should take note. Within the past few months, at least one HK91 pistol-style submission as light as 8 pounds, with a barrel length of 8-3/4 inches and an overall length of 21-3/4 inches, has been determined to fall outside the definition of “handgun.” This is a change from previous determinations where firearms weighing over 8 pounds, with 20-inch barrels, and an overall length of approximately 31-1/2 inches were held by FATD to be “handguns.” Since the letters are not publicly available, it is impossible for regulated companies to know the full range of FATD’s determinations. This has serious implications for regulated businesses.
The question here deals with whether any specific firearm can meet the ATF’s “sporting purposes” test and therefore is importable.
In some of the new letters, ATF has begun listing the following “objective design features” when making its evaluations:
- Incorporation of rifle sights;
- Utilization of “rifle caliber ammunition” (both 5.56mm and 7.62mm have been considered as such);
- Incorporation of “rifle-length barrel;”1
- The “weapon’s heavy weight;”
- Ability to accept magazines that range in capacity from 20 rounds to 100 rounds, “which will contribute to the overall weight of the firearm”; and
- Overall length of the weapon which “creates a front-heavy imbalance when held in one hand.”
However, ATF also noted in the most recent private ruling that the above design features are “neither binding on future classifications nor is any factor individually determinative[.]” ATF explained without elaboration that “the statutory and regulatory definitions provide the appropriate standard in classifying the firearm.” ATF concluded that “a firearm that is too large, too heavy or . . . otherwise not designed to be held and fired in one hand (as demonstrated by the objective features) cannot be a handgun under the statutory definition and cannot be subject to importation criteria governing handguns.”
Again, these “standards,” such as they are, have only been communicated to individual companies regarding specific firearms. The ATF is notoriously opaque about their testing and standards for all things ballistic, sporting purposes qualifications included. As Wiley concludes,
In light of ATF’s subjective and inconsistent analysis of size and weight, it is difficult to predict how the agency will classify any given firearm under this standard.
Wiley goes on to note that the ATF says, “consideration of the objective design features of a firearm to determine the designed and/or intended use is clearly not a change in policy.”
Could this all be bad news? Yes, it could. The Honey Badger affair is not a good sign. The ATF issued their 60-day stay, but that was probably just a way to push the issue past the election to see which way the political winds are blowing in December. A Biden win will be bad news for all kinds of firearms, braced pistols included.
As for the Wiley email, again, it is all pure (though well-informed) speculation regarding what the ATF might do. They conclude this way:
Under ATF’s new interpretation of the handgun definition, millions of AR-15 style pistols could be considered “too large, or too heavy” to fall within ATF’s new interpretation, thereby making them unregistered NFA weapons, and subjecting manufacturers and gun owners to criminal prosecution. Given the private nature of ATF’s classification rulings, and the subjective nature of the analysis, it is extremely difficult to know for sure whether specific firearms fall within the new interpretation.
Given that uncertainty, Wiley suggests that manufacturers and importers proceed with caution regarding large outlays of cash for inventory and equipment. That’s probably reasonable advice in an uncertain regulatory climate.
The problem here, as always, is the ATF and their arbitrary, “fluid” definitions of what is and is not an NFA-regulated firearm…and what does and doesn’t fall under the nebulous “sporting purposes” definition.
The guns in question here are small enough to be concealed, but aren’t designed — according to the ATF — to be fired with one hand. Thus the ATF is apparently considering some of these firearms as non-importable AOWs.
Will this have an application for domestically produced firearms? Is the ATF getting ready for a post-election assault on braced pistols? No one knows. It’s all speculation now and Wiley is alerting its clients to the possibility of further regulatory changes…because that’s what the ATF does. It waves its regulatory wand and issues edicts — frequently conflicting with earlier rulings on the same items — whipsawing the firearms industry and gun owners.
But nothing has happened yet. Your AR or AK pistol is still legal, no matter what you’ve been reading. Will they stay that way? No one knows for sure and probably won’t until long after next Tuesday.