Biden's BATFE Gets Dealt Major Blow in Pistol Brace Case

On August 1st, the Fifth Circuit Court of Appeals handed the Biden Administration a major loss in the Mock v. Garland “Pistol Brace” case.

A Biden administration rule requiring registration of stabilizing braces on handguns is unlikely to survive a legal challenge, a federal appeals court panel said Tuesday as it extended an order allowing a gun dealer and others challenging the regulation to keep owning, buying and selling the devices without registering them.

The ruling from the 5th U.S. Circuit Court of Appeals in New Orleans sends the case back to a federal judge in Texas who will consider whether to block enforcement nationwide.

For those who may not be familiar with the case, in January 2023 BATFE announced a new rule on pistol braces (see illustration below), determining the devices convert a handgun into a short-barreled rifle (SBR), something regulated under the 1934 National Firearms Act. Owners of these devices were given 120 days to register the newly-designated SBRs with the Federal government, or to remove the short barrel and attach a 16-inch or longer rifled barrel to the firearm, permanently remove and dispose of, or alter, the “stabilizing brace” such that it cannot be reattached, turn the firearm into a local ATF office, or destroy the firearm.

The rule initially went into effect on June 1, 2023, and has been the subject of a legal battle ever since.

The technicalities of this case hinge on the Federal Administrative Procedure Act:

…Three 5th Circuit judges heard arguments in June. On Tuesday, the panel voted 2-1 to extend the block on enforcement for 60 days and send the case back to U.S. District Judge Reed O’Connor in Texas. The majority said the challengers were likely to succeed with their argument that the administration failed to comply with the federal Administrative Procedure Act in adopting the rule. It said O’Connor should review that aspect of his original ruling, other issues brought up in the challenge and the scope of any remedies — including whether the block on enforcement should apply nationwide.

The entire opinion may be found here.  Earlier reporting by RedState on this and related cases may be found here and here.

There’s an interesting bit in the case itself, which would seem to indicate that the people now staffing the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) either don’t seem to know much about firearms (in this, they have much in common with the people who regularly write and propose gun-control legislation) or that they are being deliberately vague in defining these firearms, the better to give them a broad brush with which to paint enforcement guidelines:

Post-submission, these styles of braces increased in popularity, and the ATF avers that over the past decade, many of them were being used to fire heavy pistols from the shoulder without using the features of the brace. See id. Still, ATF regulations defining braces and the legality of their uses have not been a model of clarity. In March 2014, for example, the ATF posited that although it classifies weapons “based on their physical design characteristics . . . [and] usage/functionality . . . does influence the intended design, it is not the sole criterion for determining the [weapon’s classification].” Letter from ATF #2014-301737 (Mar. 5, 2014). The ATF explicitly claimed that it does not “classify weapons based on how an individual uses a weapon.” Id. As a result, an individual’s improperly firing a braced pistol from the shoulder did not reclassify the pistol as a short-barreled rifle. Id. Then in October of that year, the ATF backtracked and asserted that subjective use, instead of design criteria, may change a weapon’s classification. Letter from ATF #2014-302492 (Oct. 28, 2014). Still, by December of that year, the ATF approved devices such as the Shockwave Blade Pistol stabilizer for use, so long as the device was “used as originally designed and NOT used a shoulder stock.” Letter from ATF #2014-302672 (Dec. 15, 2014).

Translate the from legalese into English, and it reads as though there is some heavy goalpost moving going on at ATF, and the Fifth Circuit is calling them on it. But vagueness and inaccuracy are nothing new from BATFE. Nobody who understands how pistol braces work would think that they can effectively be used as a stock. But then, nobody who understands semi-auto actions could get themselves all agitated over an AR-15 and, when showed a Winchester 100, say “…oh, that one looks all right.”

But here’s the interesting part of this: Judge John R. Willett, in a concurring opinion, cited Bruen:

In my view, protected Second Amendment “conduct” likely includes making common, safety-improving modifications to otherwise lawfully bearable arms.2 Remember: ATF agrees that the weapons here are lawfully bearable pistols absent a rearward attachment. Congress might someday try to add heavy pistols to the NFA and the GCA, but it hasn’t yet. These pistols are therefore lawful. Adding a rearward attachment—whether as a brace or a stock—makes the pistol more stable and the user more accurate. I believe these distinctions likely have constitutional significance under Bruen.

This won’t be the last time Bruen saves the day in a legal battle on Second Amendment issues. The ramifications of this case are far-reaching; one could make a case for the Bruen decision invalidating a wide swath of gun-control laws across the nation.

This case isn’t over. Mock v. Garland now goes back to Texas U.S. District Judge Reed O’Connor, who initially declined to block the rule. More legal wrangling will follow. But this is a win for shooters, especially disabled shooters, and for the Second Amendment. Bruen is making a difference; this, once again, points up the benefit of having a majority of Constitutional originalists on the Supreme Court.

Also, this case and the background of the rule from BATFE illustrate one more thing, very, very clearly: The United States dodged a major bullet when Merrick Garland did not end up on the Supreme Court.



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