The ATF Pistol Brace Ruling
- By Hunter Brooks
- Feb 17, 2023
The highly controversial ruling by ATF is discussed in depth in this episode. In the first part of the podcast, Justin Burke joins Hunter to simplify and explain the ruling. Each part of the ruling is broken down and explained while many FAQ’s are answered or addressed.
During the second part, Hunter is joined remotely by attorney John Pierce. John is a Virginia gun rights attorney whose practice is focused on the unique legal issues surrounding the sale, purchase, possession, transportation, and carry of lawfully owned firearms. He also provides services such as gun trusts, gun rights restoration, and creating corporations and LLC’s. John discusses these services, gun trusts, and the ATF brace ruling.
Hunting, fishing, and all things outdoors. It's not just a hobby, it's a lifestyle. Welcome to the Greentop Outdoors Podcast with your host, hunter Brooks.
Hunter Brooks (00:14):
All right, welcome to another episode of the Greentop Outdoors Podcast. We've got a pretty different episode today. At first, I've got Justin Burke here with me. We're gonna talk about the ATF Brace ruling. And we've also have John Pierce remotely coming in to, to, to discuss what he, he does being an attorney. And we're also gonna talk he's also gonna talk about the BRACE ruling too. But first, Justin, thanks for being here. Tell me, tell us a little bit about yourself real quick. How long you've been with Greentop?
Justin Burke (00:46):
Happy to be here, hunter. I've been with greentop full-time now, just over 10 years. And I kind of specialize in our compliance paperwork process, nfa all that kind of stuff,
Hunter Brooks (00:58):
Firearms, collections all that sort of stuff too. Yes, sir. And you've you're, you're probably the only person I know that is a fan of 22 Magnum. Absolutely. It's like, it's like your favorite caliber, isn't it?
Justin Burke (01:10):
Hunter Brooks (01:11):
Is. So it's not, it's not often you run into somebody that's favorite caliber is 22 Magnum,
Justin Burke (01:15):
But no, I probably have more at home than the store does.
Hunter Brooks (01:17):
Right, <laugh>. So what we're gonna do today is we're gonna talk about the big controversy that's going on in the firearms industry right now. And that is the ATF ruling on the pistol braces. And, you know, as it's, yes, it is controversial. We just received word that there's, there's lawsuits. Okay. Going towards the Justice Department now for Virginia, our home state, our attorney general is part of that as well.
Justin Burke (01:46):
Yeah, they filed one yesterday. Yep.
Hunter Brooks (01:47):
That was filed yesterday. And let's it's a pretty br it's a pretty broad topic, but let's try to narrow this down and talk about it as simple as possible so that I guess people can understand the basics of this. Because yes, there's some, it, it can get very convoluted very quick. There's lots of conspiracy theories surrounding this. There's lots of dos and don'ts and there's a lot of things surrounding this, but let's just try to simplify it.
Justin Burke (02:17):
Yeah. It's very complicated ruling, to be honest with you. And the language is extremely vague, so it is easy to get lost in the weeds. You know, that normally to get me on here, you'd have to drag me kicking and screaming. Right. But I wanted to be here today because I wanna clarify, you know, some of the misinformation that is out there. And trust me, there's plenty of it.
Hunter Brooks (02:38):
There's lots of
Justin Burke (02:39):
It. Yeah. whether it's on the internet, you know, things that customers have heard, whatever, we hear it all the time, and we'd like to just clarify a bunch of that so that our customers know, okay, where do I stand and what do I need to do?
Hunter Brooks (02:53):
Yep. Okay. So where do we, where do you wanna start?
Justin Burke (02:56):
Well, before we kind of dig into things, you know, I know a lot about this stuff, but I'm not an attorney. Right. So
Hunter Brooks (03:01):
Neither, neither am I.
Justin Burke (03:03):
Quick legal disclaimer, you know, don't take what I say as legal advice. Right. if you need an attorney, find an attorney. Yeah. with that said, you know, our customers are really knowledgeable and they're usually pretty dialed into things, so I think everybody kind of knows why we're at where we're at. But, you know, for the handful of people that do not know just a quick 62nd background on the issue. Back in 2012 a company submitted a pistol brace design to help with large format pistols. And they had submitted that to ATF for classification. It was ruled that that was not, didn't change the classification of pistol. And because of that, then there was a proliferation of braces, people in the industry being bright and, you know, a
Hunter Brooks (03:53):
Flooding of the market. Yeah,
Justin Burke (03:54):
Yeah. Realized, oh, hey, we can also use this in other manners. Yes. And they became very popular. So over the course of the next several years, you had not only a large number of braces, but then also some back and forth between ATF and the industry about what was and wasn't legal. That kind of leads us to where we are today, which is a couple years ago, atf proposed that they may change their classification on these, and this rule is the culmination of that. Yep. So, so that's
Hunter Brooks (04:27):
What it boils down to. That's where we're at now, and, and they have ruled. Yep. And the rule
Justin Burke (04:31):
Effective up the effective date. Yeah. The effective date on the ruling was January 31st. That's when it hit the federal register. And the compliance date, which we'll get into that in a minute, is gonna be May 31st.
Hunter Brooks (04:42):
Justin Burke (04:43):
So the question is, what does the rule do? And to make things really, really simple, it does a handful of things. Number one, it basically makes all braced firearms, sbr, short barreled rifles, outlines options for people who own those. And then it supersedes all the other previous classifications that ATF has come out with. So those are the real basics. Now, the rule itself is, as you mentioned earlier, much more complicated than that. Mm-Hmm. <affirmative>. But that's kind of just the basics, the options that folks have. That's one of the biggest questions we get are what, what are my options? And the options for possessors which you have 120 days to come into compliance, that's where that May 5th, or excuse me, May 31st date comes in. That's the compliance date. Options for possessors are number one, you can either destroy or forfeit the firearm. Mm-Hmm. <affirmative>, which we know most people aren't gonna do that. It's
Hunter Brooks (05:47):
Option one. Yeah. Most, most people are not. Yeah.
Justin Burke (05:49):
Yep. You can put a 16 inch barrel on the gun and remove it from the SBR classification. You can remove the pistol brace, or you can choose to register it tax free as an sbr r
Hunter Brooks (06:04):
And you would register that through eForms, atf eForms we website.
Justin Burke (06:09):
Correct. And that's just E-forms dot atf.gov gov. They have a separate link for doing this tax free registration. It's a big bright ring, big bright link in red you can't miss it. You click on that and follow the
Hunter Brooks (06:25):
Steps. Yeah. And that's only for if you have an existing pistol and you need to register that as an SBR R for the tax free.
Justin Burke (06:37):
Hunter Brooks (06:37):
Correct. Okay. Yep. And if, if you're looking to sell, what if you got a pistol and you wanna sell it? You can't sell it to, obviously you can't sell it to a dealer right now cause a dealer's not gonna buy it from you. I know. We're not buying them. And then most other dealers probably nationwide. I, I wouldn't say all of them. I think there's probably some out there that would purchase them from you without a brace. I doubt they're gonna give you much money for it, because I don't think the value is very, it's doesn't have a very appreciative value right now with the way the market is.
Justin Burke (07:08):
Yeah. You're absolutely right on that, hunter. First of all, the, the way that the ruling is written you cannot sell it as it sits now with the brace on it. They deem that as illegal transfer of an sbr. Yep. But certainly by removing the brace, it then theoretically would become just a pistol, and you could sell it that way. Again, as you mentioned, I think a lot of dealers are probably gonna shy away from that because we see the market as being very lean on that in the coming years. Yeah. unless something is done you know, as far as an injunction or some other legal measures take place. Yeah.
Hunter Brooks (07:49):
Which might happen, you know, alone. Yeah. Correct.
Justin Burke (07:52):
You know, I was just reading yesterday after this lawsuit from Virginia and 25 other states, SB tactical, a few other plaintiffs are listed on that. But a bunch of people, a bunch of industry members that were involved with braces have suffered steep, steep, steep declines in sales, obviously, because of this ruling. And I think that you'll see the same thing with, you know, large format pistols or pistol based ars, whatever you want to call them in the future.
Hunter Brooks (08:28):
Yeah. So the other big thing going back to what's legal and what's not, there was a, I, I think a few people had asked me personally, Hey, well, if I take my brace off, I understand that the buffer tube is not still, is still not good. But that's not the case. I mean, as long as the brace is removed from the gun from the pistol, it's, it's now legal. It doesn't matter if it has a six position buffer tube on it or not. Correct. Or is that, or is that a vague part of the, the
Justin Burke (08:59):
Ruling? Actually that's a great question. It's one of the most frequent questions that I've gotten since this has come out. So let me take one, just, you know, brief step back in that without getting too complicated, the rule what it really is designed to do is determine if your firearm is intended to be fired from the shoulder. Right. and it's
Hunter Brooks (09:24):
As simple as that.
Justin Burke (09:24):
It's, it's the easiest way to look at it. Yeah. Yeah. And they have all kinds of factors for determining that. Sure. that, again, are just as vague and convoluted Yes. As everything else. But I think the ultimate goal is trying to determine if it's to be fired from the shoulder. Yeah. So I can assure you that just about every pistol brace gun will meet that definition. Mm-Hmm. <affirmative> ATF has even commented and said that yes, you technically could have a gun with a brace on it that does not meet the SPR definition, but they anticipate that that'll be less than 1% out there. Right. And it would have to be set up in a very, very, very specific way. So with all that said, the buffer tube issue you know, one of the most frequently asked questions that I get is, do you have to have a pistol buffer tube?
Or like you mentioned, yeah. What about if I just have this, you know, adjustable rifle buffer tube on there? Like many things in this whole deal we've received some conflicting or contradictory answers on that. ATF has stated in multiple forums that removing the brace is sufficient. And I think that going ahead with that at least initially is safe for people. With that said in their PowerPoint training presentation about this whole rule they don't make that assertion. And they even say that a pistol, an AR pistol with a buffer tube could still consider, still could fall under the SBR category. A lot of that is gonna depend on other factors. One of the main factors they look at is whether that piece, that rear what they call the rear word projection, the piece that comes off the gun in the back is necessary to the cycle of operations. Sure. Mm-hmm. <Affirmative>. So for an AR that is necessary, gotta have it. Yep. And I think that you're probably safe for moving the brace, but again, it's one of those gray areas that's not Yeah. You know, I don't think it's gonna matter what buffer tube you have on there, but it is a gray area, and if you have real questions about it you know, kind of watch the guidance on that.
Hunter Brooks (11:51):
Yeah. And, you know, at, at this point, just if you have one to be legal, just take the brace off at this point. Yep. Yeah. All right. For, that's probably one of the frequently asked questions towards the end of this, but you know, I'll probably jumped the gun on that. What else we got?
Justin Burke (12:09):
So for registration if you choose or you want to do that, it's a, a relatively simple process. You go to the e-Forms website, click the link and just follow all the dropdown stuff. The things that people need to know about that are, number one, it's really design kind of for individuals. There are options for trusts, which I'm gonna get into a little bit later, cuz again, that's one of the more frequently asked questions that I've received. But it is only for sbr and people have kind of asked me about that too. You know. This rule does address what we call pistol grip firearms, you know, the mossberg shockwave mm-hmm. <Affirmative>, yeah. The Remington Tack 14, all that kind of stuff. Sure. And the rule has said that they are short barrel shotguns and not subject to amnesty registration. They have a whole lengthy determination on that about you know, those firearms require two hands to shoot, therefore they weren't pistols to begin with. Right. But
Hunter Brooks (13:19):
Totally different classification.
Justin Burke (13:20):
Yep. On guidance on those. If you do happen to have a firearm, a shotgun style firearm with a brace attached, that should be removed. Yeah. And unfortunately, you can still go ahead with a form one if you want to do that, but you'll be paying the $200 tax. Right. And at that point, if you're gonna do that, you might as well just go ahead and put a stack
Hunter Brooks (13:41):
On it. Might as well. That's right. But yeah, that's, I mean, there's not as many of those out there as there are the AR pistols, but Absolutely. They, they still, that classification is different from an AR pistol, but it's still relates to this ruling, so. Yep.
Justin Burke (13:55):
Hunter Brooks (13:57):
That's another frequently asked question too.
Justin Burke (13:59):
Yep. the, the rule doesn't ban stabilizing braces. Right. So you know, you'll still see those available in stores online, wherever else. Just know that they're gonna be treated if, if put in conjunction with a firearm, a pistol style firearm, that it's gonna be treated like an SPR at that point. Yep. but in terms of registration it's pretty simple. The ATF actually has a pretty decent guide on that, and I think there's some good YouTube videos out there. From what I've heard about it. I've actually gone through that whole step-by-step process and I didn't find it too bad. Now, I also use E-Forms on a regular basis. Yeah. if
Hunter Brooks (14:44):
You're not, if you've never used E-Forms before, take your time. They actually, they do a good job in, in try and trying to trip you up. They, they, they want you, they want these forms completed properly. So if, if something is missed, they, they're not gonna let you continue until you get something done. So it's actually a pretty easy process. Just take your time with it.
Justin Burke (15:06):
Yep. And the big thing for for customers is to be accurate on those. Yes. because the way e-forms is set up, it's kind of an all or nothing deal. Either it's an approval or it's a disapproval. Yeah. And if you have a minor mistake or you forget to add something on there, and you know, like you said, the program's set up so that it tries to catch those. Yeah. But if you do have a mistake, they will disapprove it. Yeah. So just be, you know, I've, I've told people, take your time with it. Double check it. Just be as accurate as you can possibly
Hunter Brooks (15:38):
Be. Yeah. There's no penalties. Only penalties, a loss of time. You know, there's no penalties for getting it disapproved. If they just find a mistake, they're gonna disapprove it all. They're gonna, they're not gonna tell you what to do. All you're gonna have to do is you have to resubmit again, and this time don't make any mistakes. And then hopefully it'll go right on through.
Justin Burke (15:55):
Right. Yeah. And they are allowing for the adoption of the markings on the firearm. So if you choose to register and you go through this process, when you get to that section of the form, you'll just go ahead and put what's on the, the firearm. Right. You know, the manufacturer model serial number, caliber, all that pertinent info.
Hunter Brooks (16:15):
What about the photos?
Justin Burke (16:17):
So that's again, we'll jump into these frequently asked questions. Okay. Cause that's on there too. Gotcha. you know question, let me run through these just real quick, cuz the, I think it'll be a fast read. The question I get most asked most often is, is my brace firearm an SBR R? And the answer's yes. I mean,
Hunter Brooks (16:38):
Now it is,
Justin Burke (16:39):
Yeah. Now it is after the, the 31st. Yes. It's gonna be considered an sbr. And I've had a lot of people read through the regulations and say, well, I'm not so sure and trust me. Well, yeah, you can, it's gonna be
Hunter Brooks (16:50):
Considered, and you can say that, well, my, it, you can call it whatever you want, but the, the federal law, the new federal ruling is that yes, that is an SBR until an injunction or until the, that's repealed or overturned or whatever.
Justin Burke (17:04):
Yeah. Yeah. And plain and
Hunter Brooks (17:05):
Simple, that's no way around it.
Justin Burke (17:06):
Yep. And as you mentioned before, you know controversial or complicated or whatever your opinion of this whole thing is, is this is the law for us and what we have to abide by until that changes. Yes. So I've been asked if I choose to register, do I need to keep the brace on the firearm, or likewise, you know, is this a true sbr r I think there's a lot of misinformation on that. Yeah. And the answer is once it's approved, yes. It's a full sbr. So if you want to take that brace off and put a, a real stock on there Yep. You can do that. You can do that. Yep. It is not, the brace is not tied to the gun. Now, while you're waiting for an approval, you probably wanna leave that on there. And obviously you should save your submission as proof that you submitted during the compliance period, which if I didn't mention that before, you know this window up a hun, their 120 day in window, which ends on May 31 is when you'll have the opportunity to register tax free.
Right. So do I need to submit photographs of the firearm? There's a lot of misinformation on this too, you know I've heard, oh, well I have, that's a trap. Yeah. It's a trap. I have to send in a picture of the whole gun, blah, blah, blah. No, you, do you have to submit a photograph Yes. Is it of the whole gun? No. Can you choose to do that? Yes. if I were filling one out, I don't know that I would, but Right. The only fi photograph that was required when I went through was they want a closeup photo of the markings or engravings on the firearm on the receiver. Yep. And I think that that is to ensure accuracy of what you're entering into the system from an accuracy in the N FFR t r, you know, standpoint.
Yeah. other ones that I've heard a lot of are, do I need to worry about 9 22 R compliance? No, you don't. ATF has specifically stated that they're not gonna consider that you know, a violation or a problem for folks that, that applies to you. If you don't know what that is, you don't need to worry about it. Can I register the firearm to my trust or using my trust? Technically yes, you can. There are some rules on that, and it is you are going to have to prove or provide evidence that the trust owned the item prior to that January 31st deadline. So most trusts have some type of assignment sheet or schedule or something that assigns the property to the trust, and that would have to have, or have to indicate that the firearm was there and trust property prior to that 31st date.
If you have that, then you do have the ability to apply as a trust, but know that it probably will be under more scrutiny. Right. Than if you did it as an individual. Right. the other question that is related to that is should I register? And a lot of that is gonna be personal preference. You know, if you have other SBR or other NFA items I could certainly see why you would want to register that. Just what I would tell people is know that SBR are a little bit more heavily regulated than silencers. Mm-Hmm. <affirmative> not a lot more, but a little bit. And you know, not everybody may want to do that, so. Yep.
Hunter Brooks (20:52):
So you may just wanna hold out, take the brace off and hold out and see hope for the best.
Justin Burke (20:57):
Hunter Brooks (20:59):
Just put a 16 inch barrel on it and make it a, make it a carbine.
Justin Burke (21:02):
Yeah. I think that you know, you and I were talking about it earlier, realistically, the two options for your, most of our customers, and your average person is gonna be either you just, you remove the brace and you use it as a pistol, or you choose to register the thing. Yeah. And you know, get an SBR for no charge. Yeah.
Hunter Brooks (21:26):
It's kind of hard to beat that deal, you know, because an SB an SBR is great. And, and, and I know people, people don't want to have a, necessarily have one of their weapons registered with the federal government, but there's millions of registered firearms silencers more, more than they can probably handle or keep up with.
Justin Burke (21:47):
Hunter Brooks (21:49):
I have, I, I can't, I don't even know off the top of my head how many I have, but, and SPR is great. You know, the only problem with it is if you wanna leave the, the Commonwealth of Virginia, if I wanna leave the Commonwealth of Virginia with it, you do have to get written, written. What's, what's the form that you have to do
Justin Burke (22:07):
Permission. Written permission. Yeah. You have to do the 53 20
Hunter Brooks (22:10):
Now. I don't, I don't have any reason to leave the state with it cuz it's just it's just for fun. But you do have, that's one of the, the tighter regulations on sbr mm-hmm. <Affirmative> than you would with salers. You can leave the state with salers whenever you want. You can fly with them, take 'em on a hunting trip, do whatever. But SBR is a little
Justin Burke (22:27):
Different. Yep. They're not as easy to dispose of. Now you could always convert the gun back to a non SBR configuration Yeah. And do that. But you know, transferring an SBR is not as simple as transferring a traditional rifle or shotgun. You know, we do that every day. People come in and Yeah. Buy, sell, trade. That, that process becomes much longer with an sbr. Yep. without converting it back to, you know, a non SBR configuration. Yep. it'll be really, really interesting kind of see where this goes. Not from, not just from a legal standpoint, you know we'll see where all the lawsuits go and if there is an injunction or anything. But what I've found really interesting is ATF has really kind of bent over backwards, or at least had to compromised to some degree on some of their other rulings. You know, you look at things like the 9 22 R compliance, they're overlooking that they're doing a handful of other things like dealers are allowed to essentially manufacture without a license to turn an SBR into a rifle by adding a 16 inch barrel. Yeah. overlooking that. They've done a handful of other things that people have pointed out and said, well, hey, didn't you have a different opinion about this? And so it, it's, it's been a, a complicated and kind of fluid issue ever evolving. Yeah. But
Hunter Brooks (24:02):
Hopefully it's gonna stay fluid and the ruling may turn around. We'll see. Yeah. I mean, you know you know, the conversation with John Pierce coming up, we talk about bump stock, the bump stock ruling mm-hmm. <Affirmative> primary example that, you know stay, stay tuned for that. He'll talk about the bump stock ruling too. You know, it's just, this is kind of one of those things you may just have to wait for, you know, now the bump stock is nowhere near as big of an issue as, as the AR pistols because of, you know, there's just many, many more that are in that are in ownership throughout the country than, than bump stocks.
Justin Burke (24:43):
Well, and to your point, you know about SPR being fun, it's why it, it's what has made this large format pistol with a pistol brace so popular. Yeah. You know is it's essentially getting pretty close to, pretty close to what you had with the sbr without having to go through,
Hunter Brooks (25:05):
Without having it regular, the
Justin Burke (25:06):
Hunter Brooks (25:07):
Yeah. Well, cool. We, did we miss anything Justin?
Justin Burke (25:11):
No, I think we've gone through pretty much everything we wanted to cover.
Hunter Brooks (25:14):
Justin Burke (25:16):
I've had a lot of conversations on this with people. In fact, I've had four lengthy ones today. Yeah. You know, and obviously if people have questions we're here and happy to help and, you know, act as a resource. In fairness here, ATF has a bunch of really good resources on their website. Mm-Hmm. <affirmative>. So, you know, if you have some questions and you want to look into that you should be able to find some answers there. They're frequently asked questions thing is a pretty decent
Hunter Brooks (25:46):
It's a nice resource.
Justin Burke (25:47):
Hunter Brooks (25:48):
And not, not just on this topic, but other stuff too. Yeah.
Justin Burke (25:51):
Yep. Absolutely. Yeah. So you know, there, there are things out there for people, but we also want to provide a res be a resource for people and provide service. Yeah. So if people do have questions or anything else, they wanna talk about it, we're always here.
Hunter Brooks (26:03):
Yeah. And as far as the, you know conspiracy rabbit hole, we're just not, not getting anywhere near that. Cuz it, this is, this is just as, as basic as it is right here. This is all your, the basic stuff you need to know. And like you said, the, the frequently asked questions on their site we kind of covered the basics on that. But yeah, if you have any, anything, any other additional questions to this, you know, reach out to us. Reach out to me, reach out to Justin. Glad to help you out on it and do the best we can to help explain, you know, what's going on with it. But stay tuned. We're gonna have John Pierce on. John Pierce is an attorney he's worked with closely with us over the last few years setting up gun trust for many, many customers of the Commonwealth of Virginia and probably beyond. But he's he's got some good information coming up. So stay tuned. Justin, thanks for being here. Thanks for your info. And have a good weekend, man. Thank you, Henry. You too. All right. Thanks for joining us for another episode of the Greentop Outdoors Podcast. Today we have a special guest. We have John Pierce here N f a attorney. Is that, is that right John?
John Pierce (27:16):
That's correct. Among other things you know, I do majority of all the gun trust that come out of Virginia, most of those being specifically focused toward the ownership of N FFA items. My, my practice itself is focused very heavily on firearms law. So in addition to doing the N F A trusts, I also do gun rights restoration, both for those that lost their rights due to felonies as well as those that maybe have had mental health treatment and have since recovered and would like to be able to get their rights back. I do self-defense cases. I do cases where someone forgot that they had a firearm in their briefcase and tried to get on an airplane, ah, and still carried permit denials. It
Hunter Brooks (28:03):
John Pierce (28:04):
Those kind of things. So, yeah. So firearms feature heavily in my in, in my
Hunter Brooks (28:10):
Practice. Okay. And well, let's, before we get too carried away, cuz we're gonna talk about a lot you know, we're gonna talk a little bit about gun trusts N F A products getting rights, rest restored, things like that. But we're also really gonna get into the the, the recent A T f the N ffa and a TF Brace ruling that has affected probably, what would you say, millions of gun owners.
John Pierce (28:38):
Yeah. I, I think the number that we keep hearing bandi around by people is that there's an estimated 40 million arm braces in the hands of of citizens. And, you know, the, the a tf made ruling after ruling that arm braces were in fact okay. Right up until the point that they didn't. Right. And we were playing the you know, redefinition game yet again. Yes.
Hunter Brooks (29:10):
All right. Well, before we get into that, John, how can our listeners find you if they needed to contact you regarding a gun trust or any legal advice anything like that? What, how can our listeners find you?
John Pierce (29:24):
Well, I mean, obviously let's start with the the website. My website is www dot john j o h n Pierce, p i e r c e, then e sq.com. The, there's also a shortcut to get there. You can simply go to NFA trust.org and that will redirect you to my law office website. And they can also call me directly. My number's 2 7 6 2 0 6 9 6 1 5. I take calls 9:00 AM to 9:00 PM seven days a week. I'm not, of course I'm not always available, but people should feel free to call me at any time during those hours, and I will do my best to answer their calls or return their calls as quickly as possible.
Hunter Brooks (30:16):
Okay, good. And you know, we have a we've got like an iPad here at the store that people can access to get started on their gun trust as well, if that's, if that's the reason for contacting you. And that's kind of where we met years ago, John is when, when, when the N F A stuff was, was getting approved and turning over pretty fast, gun trusts were very popular and you were providing that service and amongst other services. So I, I guess let's, let's talk a little bit about the gun trust and the importance of, of using a gun trust versus submitting N F A forms as an individual.
John Pierce (30:58):
Sure. And, and that's actually a really good point because you know, in addition to doing the gun trusts, I also help people with estate administration when there's N F A items in the estate and they didn't have a trust, they owned them individually. And, you know, time and time and time again, we see all kinds of cautionary tales. There really are basically two categories of major benefits that you get when you own your NFA items in a trust as opposed to individually. The first category is simply the ability to share and use your items. So under a clear reading of the N F A, which has been around since 1934 and under a clear reading of it, if you are an individual owner of an N F A item, you should be the only human being with the exception of a licensed gunsmith doing a repair that touches that item until you die.
The, the transfer definition under the N F A and the law, the case law that has sprung up over the years as they've tried to go after people that the courts very much wanted to convict has narrowed that transfer down to the point where standing beside your son, your brother, your father, your spouse your friend, and simply letting them shoot it is going to potentially if someone wanted to be considered an illegal transfer. Now, quite honestly, we don't see that kind of thing prosecuted very often. Usually where we see those kind of issues come up is when someone has some underlying offenses, maybe it's a drug offense, et cetera. But the, the thing where it very clearly is clear that the trust is preferable is when we talk about being able to let your son, father, brother, spouse, take the item and go to the range themselves or go hunting themselves.
And with individual ownership that is just completely off the table and that is prosecuted. Versus with a trust, you can name people as what we call joint trustees or current trustees on the trust. You'll also hear them referred to as responsible persons. Those people can literally take your N F A item, go on a three week hunting trip, come back, and it's perfectly legal for both of you. So it brings the ability to share the item and to use the item almost back to the level where regular firearms are. Right. And then the second major category of benefits is when you pass away. So I, if you pass away in Virginia and you've done a good job of planning your estate, so your house goes directly to your spouse by rite of survivorship, all the cars go to your spouse by rite of survivorship.
All the bank accounts are jointly owned with Rite a survivorship. Your investment accounts have direct beneficiaries. You see where I'm going with this. At the end of the day, the only thing that goes through your estate is your clothes and, and some knickknacks. And so in Virginia, we have expedited probate that lets you do what's called a small estate affidavit or other forms of expedited probate where you can get in and out of processing an estate very quickly. Well, if you have an N f A item in the trust, all of a sudden now you actually have to have the item go through through probate, and you have to wait for the form five to be approved by the A T F. And during that whole time you've kept the estate hol held up and you know, during that time, anyone can show up and claim to be a creditor.
And there's a lot of issues there. And that's assuming that the executor of someone's estate is even aware that the item that they're dealing with is an NFA item. Right. You know, I could give you any number of horror stories. A a woman called me it's probably been two and a half, three years ago now. She had came out to Virginia, her father passed away unexpectedly. She was going back to California. So she knew that she couldn't take most of his firearm collection. She arranged for it to be sold, but she packed up all the tools on his tool bench, which included these strange round objects that were laying there, <laugh>, right. <Laugh> and packed them up, took them back to California. Her boyfriend, thankfully was a law enforcement officer, realized what they were. They called me up and we, you know, made arrangements for that to, to not be a problem.
But it happens all the time that we end up getting an illegal transfer. Earlier in 2022 without going into details, I had to arrange for the surrender of several hundred thousand dollars worth of amazing machine guns because someone had allowed them to become contraband subject to seizure. And we were unable to bring those back into proper ownership into a family. And that's heartbreaking. Yes. So with the, with the trust, when you pass away, it handles completely separate from the estate. The successor trustee is fully aware of the nature of the items. The beneficiaries get the items in a timely fashion tax free without having to worry about any of those other things. So o obviously as an attorney that that does these kind of trust and does a lot of them, I'm a big fan, but even if you told me that you weren't going to use me for the trust, no one should ever own an N FFA item individually. They should always own it in a trust.
Hunter Brooks (37:01):
Okay. And you know, the you know, the bonus, the bonus with that too is there are a lot of people that already own NFA items as individuals. You can transfer those over to a trust. While you still own these as individuals, you just have to pay the $200 tax stamp for the, for the transfer, unfortunately. But you can just, cause they're now formed to you as an individual, doesn't mean you cannot transfer them over to a gun trust
John Pierce (37:32):
Cor. Correct. And again, you've already brought out sort of the, the, the bad news mixed in there, which is yeah, the ATF does consider that a transfer subject to the payment of an excise tax. But other than that, yes, you can move them and during the time that, that they are being transferred and you're waiting for approval of that form for you can continue to use them individually. Yes. So it doesn't involve going back to an FFL or anything like that. You simply fill out the form for, and, and I can help people with that as well if they need help with ATF forms. And during the time they're waiting for that, it's just in their own possession and still usable.
Hunter Brooks (38:14):
So one, one thing that happens, I guess more often than not is people get turned down, they get denied after they submit form four application. And you know, they, they're confused by this. Say they can, they can walk into this store, purchase a firearm and leave with it the same day, but then they submit form four s, then they get turned down and the the reason for the denial comes back from a T F that the F B I says that they did not complete the background check or or whatever reason. This happens quite often, doesn't it, John?
John Pierce (38:54):
It it does. And there are four main categories of reasons why that tends to happen. So I, in no particular order, here's the kind of things we get back. So number one, if someone was had their gun rights restored in Virginia prior to January 1st, 2021 when we changed our laws and we changed our system to more closely integrate with NS and also to require fingerprints from applicants after their petitions were granted. But if you add a restoration done prior to that date and you apply for an N F A item, you're going to be denied because the N system isn't going to show you that you've done that. And so I have a method to help people in that category. We work with both the state police and the F B I to get them added to the restoration file at the state level and the voluntary appeal file or granting a U pin at the F B I level.
So that one is fixable. The second one is we get back something called an open disposition from the F B I. That is, is is very frustrating because what that says is there's a charge on your record where there is no disposition. Meaning let's say I was charged with reckless driving in Loudoun County and it show my state police record shows my reckless driving charge, but it doesn't show that it was dismissed or that I was found guilty. And that happened in 1984. And the F B I, so the state police take the position that, well, you know what, even if he was found guilty of reckless driving, it's not a prohibitor. So we're, we're gonna approve all his regular firearm checks. The F B I takes the position that it's somebody else's problem and we're just gonna send back what's called an open disposition letter.
In those cases, we have to research, we have to try and get the state police to enter a disposition. I can usually help someone with that, but not always because the older the records get, the, the greater the chance that they've been destroyed. Virginia does not store records long enough. And so that's the second category. The third category is that you, you've heard a lot of discussion about the rumored 88 days. And while a lot of the fearmongering that's gone on about the 88 days regarding arm braces is just that it is not a complete urban legend. There is fact a time period between when the at TF sends the background checks to the F B I and when the F B I will simply give up on one. And in those cases it just comes back and says, you know, we weren't able to complete your background check, please try again.
That's incredibly frustrating because the person did nothing wrong and has nothing on their record. And, and those we just have to reapply. I, I'd like to see some congressional action on that at some point, but that's what happens there. The fourth one is the worst one because there's literally nothing we can do if these charges are over a certain amount of time. Old and the courts don't have the records anymore. And that is if you have a simple assault and battery on your record from, let's say 30 years ago you were in college and you and your roommate or some other guy at a bar got into a fight and they charged both of you with assault and battery and you both paid $25 and went off and bought each other a beer and that was the end of it. The F b I seemingly randomly takes the position that, well, it says assault and battery.
We don't know that it wasn't your wife or a girlfriend and unless you can affirmatively prove that it wasn't domestic, oh wow, we're gonna assume it was. And that's the one that's most frustrating because they're assuming that you're guilty unless you can prove your innocence. Most people don't keep those records, especially when before the Ladenburg amendment assault and battery was just not seen as a big deal. And so those get incredibly frustrating and oftentimes we can't do anything about it even after multiple appeals to the voluntary appeal file. So those are the categories that tend to happen.
Hunter Brooks (43:26):
Okay, thanks cuz that, that last one you d you talked about, I think, I don't know if that's the, the more prevalent one or not, but we do, we do see this issue come up a lot and, and, and a lot of customers kind of shrug their shoulders. Like, I, I don't, I don't understand why I can, I can buy any firearm I want in this store right now, but the F b I says no. And I'm sure there any, there's probably listeners that have experienced this. Is this an issue to if, if an, if a listener has an issue like this, is this something that you can attempt to help them with if if they had this issue?
John Pierce (44:03):
I, I can, although as I said that fourth one, the
Hunter Brooks (44:05):
John Pierce (44:06):
Tough, our, our level of success on that is, is limited. I you know, of course this is a podcast but you and I can see each other and I'm literally holding in my hand here a letter that I received from the Department of Justice today on just such an appeal. And it says right here, the F b I has processed your request and has determined your client is not eligible for a U pin. The record, your client match contains information that falls under a potentially prohibitive category and therefore, unless you have documentation proving that it wasn't domestic, we're not going to take his a tested certified word that it wasn't. And they refuse to do anything about it. And I literally got that in the mail today and I get too many of those in the mail. So sometimes I can, and sometimes I can't. The other ones are much more easier to address and have a much greater success rate. That one is one. Again, I think we're gonna have to see some congressional action at some point to get that cleared up because it's becoming more and more prevalent.
Hunter Brooks (45:19):
Yeah. Well the next topic is gonna need some congressional attention as well. This is the big one that everyone's been talking about. It was the big, it was the big issue at at shot show when I was just back there a couple, two, three weeks ago in, in Las Vegas. The, the brace ruling, you know, it had come out, but it hit the federal registry, when was it? Last Monday, I believe. Yeah,
John Pierce (45:45):
Hunter Brooks (45:45):
31St. Which means it's live, it's, it's, it's for real. And this thing, it's, I I would say is the situation still fluid on this John, or is, or are things kind of final right now
John Pierce (45:59):
So we know exactly what people have to do to comply with the rule as published Now? There are legal challenges out there now. I'm sure there's gonna be attempts to get preliminary injunctions. I I will remind people that it was not till this year that the bump stock ban was finally ruled in court to have been improper.
Hunter Brooks (46:26):
So, and that's been how long
John Pierce (46:30):
Has that been, what, three, four
Hunter Brooks (46:32):
Years? I think it's been three or four years. Yeah. So,
John Pierce (46:34):
So for those that are hoping for a quick injunction, I'll say, I really hope that's true. I know we're in a post bruin world, so Bruin being the decision that happened last year that really changed the landscape for Second Amendment analysis and in a post world, I think our chances are much greater for getting action. But even so it, it, I I'm advising my clients to proceed as if this is going to be allowed to stand beyond the grace period or the amnesty period that they're giving us, which is 120 days. It ends on May 31st. If you go on my website that I said earlier again, you can get there by going to NFA trust org. I've got a big countdown clock on the, the front page that counts down the days on the the amnesty that people have to get this addressed. But I, if you made me bet on whether or not we would see a preliminary injunction during that time, I'm gonna just have to assume no and get people moving. If there is a preliminary injunction, then we can see what we need to do to roll back the clock.
Hunter Brooks (47:48):
Yeah, and you know, the, the ruling is, is difficult to read just like any, any any, any legal documents can be. Some of the essential things is as far as dealers you know, for dealers for instance, we, you know, we had to pull everything we had in our inventory and remove those braces. Anybody that owns one of these pistols now by law, by by this ruling, you have to remove the brace and, and file a form one through the through the ATFs website to register that as a as an sbr. Is that is and is, is that the basic?
John Pierce (48:34):
Yeah, so a couple things there as far as have to remove it the A T F has said that if you have filed a timely application then, then you may continue using it during the time that you are waiting on the usage. And I, I believe that was on their faq. I, I will have a look and, and verify that, but I believe they said that if you filed your amnesty form one registration and you're waiting on its approval that you can continue using it with the arm brace and I'll verify that. But yeah, I actually have an article up on, on the top of my website right now during one of the WebExes that the A T F did as far as training for this. One of the presenters said something that I thought really needed to be repeated because it really helped a lot of my clients to understand what happened here.
Cuz early on there was just all this internet myth going on about they're creating a new category called Brace Pistols. And once you've got that stamp, you can't put a butt stock on it, et cetera. It's not true at all. What they're allowing you to do is get a full S B R registration after which you can put a butt stock on it and still throw away the arm brace and you have a free stamp. But the easiest way to think about this is, and it's not a hundred percent perfect, but it's 99% of the way there. The A TF basically said we were wrong about arm braces. They're butt stocks now. So now compare that to what we were doing. This rule was even announced. Mm-Hmm. <affirmative> gun stores can sell butt stocks, gun stores can sell ar pistols after this ruling. Gun stores can still sell arm braces, gun stores can still sell ar pistols.
Can they sell them in the same transaction? The ATF says no. But again, when all is said and done, they converted the arm brace to a butt stock. So if you have an AR pistol and you have a butt stock and they're in close proximity to each other, and we don't have time here today to talk about all the rules regarding constructed possession, I just tell people don't have 'em in the same house unless you fall under one of the exceptions. But other than that, you take it off, it's done. The other thing I keep getting questioned about is, well, my buffer tube has the Dayton on it so I can attach the arm brace. I've gotta change buffer tubes. No you don't. Yeah. an AR pistol might have a, a pick in any rail where you can attach a vertical fore grip.
That doesn't mean that it's a, you know, an A O W or an S B R just because it has the ability to accept it. Unless you put a vertical fore grip on it, it's just a pistol. You don't have to change the buffer tube. This rule addressed arm braces and arm braces only and it turned them into buttocks. Yeah. And if you get 'em off the gun, you now have a pistol. And if you put a 16 inch barrel on it, you now have a rifle with a probably less than ideal butt stock, but it's a butt stock as far as the ATF is concerned. And, and I think that is really the easiest way for people to look at the rule.
Hunter Brooks (52:12):
Yeah. And if, if, if you decide that you don't wanna register it, you know, cuz there's, you know, obviously there's, there's people who think there's, this is a trap, this is a conspiracy. They're, they're gonna get you somehow some way. I don't think there's enough manpower in the Justice Department to, to even consider, you know, enforcing this. But if you're gonna register it, you know, to, to clear up another thing, I know a lot of people were thinking that you have, well, it, it tells you have to upload photos, don't upload the photos. Well, you don't have to upload any photos. When you, when you've applied for the form one to convert your pistol to sbr r I think that photos are optional. Now, would I recommend taking a picture of anything and uploading it? I I probably wouldn't recommend you doing that. But it's, it's, it's, it is optional. Is that correct?
John Pierce (53:05):
It, it is optional on the, on the e-forms system. I, again, I I agree with you on this. I don't think for a minute that this is a trap, at least in the way that the people who are claiming that it's a trap are are saying it like, you know, well, you're submitting evidence that you're breaking law. Well, no. In fact, prior to the publication of this rule, arm braces were not held to be butt stocks. And with the publication of this rule, that's the moment that their interpretation, that their butt stocks came into existence. And in that same rule, they have 120 day compliance period. So there's literally no way that they could prosecute you if they wanted to. Right. Now going back to what you said, it's a numbers game. There are 40 million estimated of these out there. Let's say that even 10% decide they want their free s v r stamp. Th that is 4 million applications. Yeah. I, I've worked with the ATF before, again on estates where we have to have them come out and surrender items that we don't want to be sitting in an empty house, et cetera. Right.
Hunter Brooks (54:16):
John Pierce (54:17):
You know, these are people who are working very hard and even knowing that they want to do it, they have to they have to schedule several weeks out sometimes to come out and meet with us and, and handle those surrenders. So there's no way that they could prosecute everyone that's doing this. I i, if it is a trap, it's the kind of trap that's a honey trap where it's like, oh, now we've got all these new items registered in the N FFR T r. And so as an N F A division we're growing, you know, we're a profit center and they are a profit center. I mean, they turn out a lot of tax revenue.
Hunter Brooks (54:57):
Absolutely. Well, good. So I mean that's kind of the essential stuff. You know, there's, you, you could read more into this ruling and I'm sure there's other questions, but that you kind of answered the basic questions as far as how to proceed if you own one of these it's to kind of conclude cuz we're running, I think we're running outta time, John. And thanks again for doing this. To conclude your recommendation would be to take the free tax stamp?
John Pierce (55:28):
It, it would be, now there is one caveat that we haven't covered yet, and I'll cover it quickly. Sure. They have made the determination that if you want to get the free tax stamp in the name of a trust, the trust had to have been in existence before January 31st, and you had to have assigned your pistol that is equipped with the brace into the trust prior to the date that the rule went into effect. And I have on the main page of my website, I've got an article about that I would encourage everyone to read it. It, it says, you know, how to document the assignment of your pistol into the trust. And I've got some downloadable forms that do a good job of that. If that is not the case, if someone doesn't have a trust and now they, to get their free tax down, they have to do it in the name of an individual and move it into the trust later. Or if they just want to go straight to the trust, then they have to pay the 200 now and avoid getting the free tax down.
Hunter Brooks (56:35):
Okay. So if, if you have a, if you have a trust, you're gonna have to pay the 200 to get it into the trust if, if you didn't have it before the 31st of January. Correct. Okay. All right. Good to know. All right. I think we covered the basics on that, John. I know there's a lot of other little, you know, small things in this ruling that, that trouble that, that are troubling to some people. I mean, we, it's like you said, you could, you could probably talk all day about this stuff. But the essentials is you know, we may not like the ruling, but we gotta live with it for now, right?
John Pierce (57:11):
Yeah, we do. And, and, and you know, my job as an attorney is to try and keep my clients out of trouble and, and on the straight and narrow and taking advantage of, of the opportunities that arise. And so you know, I'll continue to advise people that way while sharing the opinion that most of us has, that this practice of redefining things over and over again has to be brought to an end. But until then, we have to live within the laws as they're being enforced.
Hunter Brooks (57:44):
Very good. Well, John thanks for taking the time outta your day to, to do this podcast. Hopefully this helps out some listeners and answer some questions for 'em. Good luck to you, sir, and stay in touch. We'll we'll keep sending you some some potential gun trusts.
John Pierce (58:03):
Well, thank you so much. I, I appreciate the opportunity to do it. I know I've got a lot of clients that really en enjoy greentop and and, and consider it, you know, just the place to go. So.
Hunter Brooks (58:15):
Awesome. Thanks again for being here, John. Appreciate it.
John Pierce (58:17):
Thanks for listening to the Greentop Outdoors Podcast, hunting, fishing, and all things outdoors. It's not just a hobby, it's a lifestyle like, and subscribe to the Greentop Outdoors Podcast wherever you listen to podcasts and learn more about [email protected]