Biden's ATF Loses on Biden's Signature Pistol Brace Ban but a Bigger Loss Is on the Way
The Fifth Circuit Court of Appeals dealt a perhaps fatal blow to the attempt by Joe Biden’s Bureau of Alcohol, Tobacco, Firearms and Explosives to outlaw the widely used and previously legal and unregulated pistol stabilizing brace. The injunction is a preliminary that lasts until the Fifth Circuit hears the appeal of a district court decision and only covers the people named in the appeal.
How We Got Here
Back in March, I wrote on the upcoming fight over pistol stabilizing braces in Texas Attorney General Ken Paxton Takes on the ATF Over Their Bizarre Pistol Brace Rule.
A pistol brace, also known as a stabilizing brace, is an accessory that attaches to the rear of the gun and allows the firearm, one that is technically a pistol, to be fired one-handed. These have been legal since their invention in 2010. However, on January 31, 2023, an ATF rule went into effect that classifies a pistol with a pistol brace as a “short-barreled rifle (SBR),” that is, a rifle with a barrel that is shorter than my…sorry, I meant to say 16 inches. The rule is complicated, but you have a few options:
- Permanently remove or alter the brace so that it can’t be reattached
- Add a barrel longer than 16 inches
- Use an e-Form 1 or paper Form 1 to register it as an SBR
- Turn it in to your local ATF office
- Destroy the firearm
Here are a couple of videos explaining what a pistol brace is and how to comply with it.
Since writing that, the ATF has ruled that detaching the stabilizing brace is not sufficient to achieve compliance; the brace must be made inoperable or destroyed. The ATF director contradicted that guidance in testimony to Congress, but I wouldn’t count on using his testimony as a criminal defense.
Prior Legal Action
The order had barely taken effect when Firearms Policy Coalition (FPC) went to court to block it. The FPC sued on behalf of its membership, William Mock and Christopher Lewis sued as owners of pistol stabilizing braces, and Maxim Defense Industries LLC joined the suit as a manufacturer of braces.
Plaintiffs William T. Mock, Christopher Lewis, Maxim Defense Industries, LLC, and Firearms Policy Coalition, Inc. (FPC) have sued Defendants Attorney General Merrick Garland, in his official capacity, the United States Department of Justice, Director of ATF Steven Dettelbach, in his official capacity, and ATF. Individual Plaintiffs Mock and Lewis are Texas residents who own at least one braced pistol and would purchase others in the immediate future but for the Final Rule’s additional regulatory requirements. Maxim Defense is a firearms and firearms accessories manufacturer and retailer that specializes in stabilizing braces and braced pistols. The majority of Maxim Defense’ revenues are attributable to sales of products now subject to the Final Rule. FPC is a nonprofit organization that exists to defend and promote its members’ constitutional rights, advance individual liberty and restore freedom through political and legal advocacy and public education. FPC’s membership includes individual gun owners, licensed manufacturers and retailers, gun ranges, firearms trainers and educators, and others. Individual Plaintiffs and Maxim Defense are members of FPC.
The District Court ruled against them, and they appealed.
As this case was progressing, Texas Attorney General Ken Paxton, along with Gun Owners of America and Gun Owners Foundation, also filed a lawsuit. In addition to the Texas-led lawsuit, West Virginia and North Dakota are leading another major effort in a case called Firearms Regulatory Accountability Coalition, Inc., vs. Attorney General Merrick Garland.
The other plaintiffs are SB Tactical, B&T USA, Wounded Warrior Richard Cicero, and a coalition of 25 states led by West Virginia Attorney General Patrick Morrisey and North Dakota Attorney General Drew Wrigley.
The other states are Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, and Wyoming.
Impact
The injunction itself is small potatoes. It only applies to the individuals who sued and are within the Fifth Circuit’s boundaries (Texas, Louisiana, and Mississippi). However, it signals bad news for the ATF. The standard for winning an injunction is that the plaintiffs will suffer irreparable harm if it is not granted and that they will probably succeed on the merits of the case.
The Paxton suit, filed in a very Second Amendment-friendly courthouse, will probably succeed at trial, and the ATF will lose its appeal.
This will effectively neuter the ATF rule in the Fifth Circuit and generate other cases in other federal districts. Ultimately, you can’t have a product legal in at least three states and illegal in several others, as the ATF is finding out with its bump stock ban. So the Supreme Court will have to get involved.
Ultimately, this case is a loser for the ATF. Just like the bump stock ban redefined “automatic weapon” to “semi-automatic weapon that we don’t like,” they’ve changed the definition of a rifle from “must be fired from the shoulder” to “we can call anything we don’t like a rifle and f*** you.”
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