Constructive Possession and Pistol Braces

U.S.A. — After having ruled pistol braces to be legal accessories for a decade, the ATF has issued a rule many, if not most pistol braces, will be considered contraband, which makes a pistol into a short-barreled rifle. Under the theory of “constructive possession”, possession of a banned pistol brace and a pistol the brace will fit could be enough for arrest and conviction of possession of a short-barreled rifle, with penalties of up to a $10,000 fine and or up to ten years in prison.

Under the Supreme Court decision United States v. Thompson/Center Arms Co., the possession of parts that can be assembled into a pistol, a rifle, or a short-barreled rifle does not equate to the possession of a short-barreled rifle because of the rule of lenity and the ambiguity of the statute. The case was decided in 1992.  You may convert a pistol to a rifle and back again. However, the ATF has ruled you may not convert a rifle to a pistol and back again.  From the decision:

Respondent manufactures the “Contender” pistol and, for a short time, also manufactured a kit that could be used to convert the Contender into a rifle with either a 21-inch or a lO-inch barrel. The Bureau of Alcohol, Tobacco and Firearms advised respondent that when the kit was possessed or distributed with the Contender, the unit constituted a “firearm” under the National Firearms Act (NFA or Act), 26 U. S. C. § 5845(a)(3), which defines that term to include a rifle with a barrel less than 16 inches long, known as a short-barreled rifle, but not a pistol or a rifle having a barrel 16 inches or more in length. Respondent paid the $200 tax levied by § 5821 upon anyone “making” a “firearm” and filed a claim for a refund. When its refund claim proved fruitless, respondent brought this suit under the Tucker Act. The Claims Court entered summary judgment for the Government, but the Court of Appeals reversed, holding that a short-barreled rifle “actually must be assembled” in order to be “made” within the NF A’s meaning.

Held: The judgment is affirmed. 924 F.2d 1041, affirmed.

The case of AR15 pistols, rifles, and short-barrelled rifles is directly comparable. Remove the upper receiver, containing the barrel, from the serially numbered lower receiver of an AR15 pistol. Replace the short-barreled upper receiver with an upper receiver with a barrel longer than 16 inches. Attach a stock to the lower receiver. A legal rifle has been assembled. No NFA laws or rules have been broken.

If, instead of a stock, you have in your possession one of the banned pistol braces under the new rule by the ATF, you may be violating the law with the constructive possession of a short-barreled rifle.  The new rule is being challenged in the courts.

The absurdity of the short-barreled rifle ban has been allowed to continue for 89 years. The initial bill, produced by the Franklin Delano Roosevelt administration in 1934, did not include short-barreled rifles. They were added because of the confused comments of a Minnesota Democrat on the Ways and Means Committee.  Pistols with shoulder stocks were not formally ruled as “short-barreled rifles” until 1961. There never was a media push to ban short-barreled rifles, which were in common use at the time they were banned.

Under the Supreme Court Bruen decision, bans on short-barreled rifles did not exist before 1921. They have no historical legal, or cultural precedent. They ban an entire class of firearms. The government cannot show they were an acceptable restriction on the right to keep and bear arms before 1900.

About Dean Weingarten:

Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.