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This morning I read a Quora question and response that talks about this. The question respondent came up with some stuff I hadn't considered. Here's the question:

"How many gun owners realize that the new ban on pistol braces will instantly make millions of law abiding gun owners felons, require those who try to comply with the new rule to provide photographic evidence to the ATF that they own illegal firearms, and add many names to the ATF's gun registry?"

Here's the response by Matt B.

"The proposed final rule does make a lot of unsuspecting gun owners felons.

People are forgetting there are two classes of problems here. The first, as pointed out, you need to provide photographic evidence of your firearm to determine if it will be SBR’d. This is an issue because under the National Firearms Act (NFA), one must get approved beforehand to assemble an NFA item. Until you have the tax stamp, you are deemed to be in illegal possession of the NFA item by default.

There is literally nothing stopping the BATFE from prosecuting every single person who sends in a picture of their braced pistol for unlawful possession of a short-barreled rifle (SBR). There is nothing in the law that allows the BATFE to create a different registration procedure for SBRs now that didn’t exist before.

This is, believe or not, the lesser of the two problems.

What a lot of talk about the brace rule have been ignoring is the fact that in several jurisdictions, NFA firearms or SBRs are illegal to possess! Period. These firearms were sold and transferred as legal pistols. With the BATFE’s blessing. But reclassify them as SBR’s and you have literally created unknowing felons in these states and these people have literally no way to comply. Their states won’t let them. A free tax stamp does them no good when NFA possession is already illegal.

Which means the brace rule faces two rather significant Constitutional issues. One is equal protection. Pistols sold legally in all 50 states are now going to be treated differently where you live. Bruen had something to say about that. The other is a little more major. The fact the owner cannot comply requires them to dispose of the firearm. Without compensation.

This is what we call a “taking” under the Fifth Amendment. The BATFE wrote a rule that literally bans and confiscates firearms from legal owners. These owners cannot comply with the terms of the rule so their only option is to sell or turn in the gun. They have no legal ability to retain possession despite the fact they bought and transferred the firearm legally.

You just created felons requiring them to turn in their guns in California, the District of Columbia, Connecticut (specific exceptions exist), Hawaii, Illinois, Maryland (if under 29″ OAL), Minnesota, New Jersey, New York and Rhode Island. In other states SBRs are legal to possess if legally registered under Federal law. State law may make an SBR illegal unless previously registered with the Federal government and many do.

This is major, folks. This is literally a government confiscation of firearms by fiat. No law was passed by Congress to enable this. A government agency decided on its own to reclassify Title I firearms into Title II and ban them.

Getting added to the NFRTR (National Firearms Registry and Transfer Record, the registry of NFA items) is the least of these people’s problem.

The 5th Amendment issue is the reason I see this being overturned or stayed. People in 10 states, 20% of the country and a lot more than 20% of the population, are now being required to surrender their firearms to the government without recompense. That cannot stand.
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