Also you do not have to destroy or alter the brace so it cannot be used.
"Since the rule was first posted on ATF’s website on January 13, ATF has already been required to “clarify” several issues with the rule.
First, at the Shooting, Hunting, Outdoor Trade Show, ATF confirmed that braces that are removed from firearms do not necessarily have to be destroyed or altered in a way that prevents them from being reattached to a firearm. While the rule claims that destruction or alteration is required for owners who choose the option of simply removing the brace from their firearm, that requirement would be contrary to the Supreme Court’s decision in
United States v. Thompson/Center Arms Co.
Under
Thompson/Center, possession of a firearm and parts that can
only be assembled into an NFA “firearm” constitutes possession of an NFA firearm. But, if the parts can be assembled into multiple lawful configurations, then the parts are not considered an NFA firearm (unless an unlawful configuration is actually assembled).
This should mean that a person who possesses an AR-15 pistol with a stabilizing brace and also possesses a 16-inch barreled upper receiver and/or a registered NFA lower should be able to keep the brace without destroying it or altering it. But, a person who only possesses a pistol with a stabilizing brace may have to dispose of or alter the brace to avoid creating an NFA firearm (in ATF’s view).
Second, in the final rule posted to ATF’s website, the agency appeared to claim that imported pistols with stabilizing braces would need to be destroyed or surrendered because they were unlawfully assembled in violation of 18 U.S.C. § 922(r), which generally prohibits the assembly of “non-sporting” rifles or shotguns without sufficient domestically manufactured parts.
Last week, ATF updated the final rule’ Frequently Asked Questions page to include the following answer to the question of whether section 922(r) applies to firearm impacted by the rule.
No. Section 922(r), in relevant part, makes it unlawful to assemble from imported parts a semiautomatic rifle that is otherwise not importable. The implementing regulations of the GCA at 27 CFR 478.39 provides that a person may not assemble a semiautomatic rifle using more than 10 of the imported parts listed in the relevant paragraphs of the regulation. As discussed in section IV.B.8.e of the final rule, the criminal violation under section 922(r) is for the “assembly” of the semiautomatic rifle; therefore, no modification of such firearm would cure the 922(r) violation because the “assembly” has already occurred. Accordingly, a person with an imported pistol that was subsequently equipped with a “stabilizing brace” will have the same options as anyone else under the final rule. Should that person choose to register the firearm, no further modification of the firearm with domestic parts is required.
While this answer seems to directly contradict the agency’s response to comments in the final rule, it is certainly positive news for owners of imported pistols with attached stabilizing braces.
The fact that ATF already needs to “clarify” aspects of the rule before it has been officially published in the federal register further underscores the arbitrary and confusing nature of the rule.
Fortunately for law-abiding gun owners, federal courts have recently proven more willing to invalidate agency actions that go beyond congressionally enacted statutes. Earlier this month, one of
ATF’s most recent major rules was struck down by the United States Court of Appeals for the Fifth Circuit. The agency’s stabilizing brace rule should meet the same end for the same reasons."
