A three-judge panel of the U.S. Fifth Circuit Court of Appeals on Tuesday told the Department of Justice that a lawsuit challenging ATF’s pistol brace rule is likely to win on the merits of the case.
The 58-page opinion came this week in the case of Mock v. Garland, brought by the pro-gun Firearms Policy Coalition, pistol brace maker Maxim Defense, and FPC’s members. The 2-1 ruling from the New Orleans-based court found that the ATF finalized the rule on stabilizing braces without giving the public a realistic chance to comment on it, and, worse, that it was legislative in nature – while the ATF doesn't have authority to make law, which is a power reserved for Congress – thus making it invalid under the federal Administrative Procedure Act.
"The ATF incorrectly maintains that the Final Rule is merely interpretive, not legislative, and thus not subject to the logical-outgrowth test,” writes U.S. Circuit Judge Jerry E. Smith, a 1987 appointment by President Reagan to the bench, in the Court’s opinion. “The Final Rule affects individual rights, speaks with the force of law, and significantly implicates private interests. Thus, it is legislative in character. Then, because the Final Rule bears almost no resemblance in manner or kind to the Proposed Rule, the Final Rule fails the logical-outgrowth test and violates the APA."
U.S. Circuit Judge Don Willett, a 2018 appointment by President Trump, as part of his concurrence with Smith, went so far as outlining his feelings on adding braces or stocks to pistols altogether and how they would fall under the Constitution:
Rearward attachments, besides making a pistol less concealable, improve a pistol’s stability, and thus a user’s accuracy. Accuracy, in turn, promotes safety. Even for attachments that convert a pistol into a rifle under the statutes, ATF has not identified any historical tradition of requiring ordinary citizens to endure a lengthy, costly, and discretionary approval process just to use accessories that make an otherwise lawful weapon safer. Instead, the NFA tends to regulate weapons that inflict indiscriminate destruction: “machinegun[s]”, short-barreled “shotgun[s],” and “smooth bore” weapons (and for that matter, “explosive[s]”, “grenade[s]”, and “poison gas”).1 Weapons that begin as rifles, too, are more difficult to keep accurate once the barrel starts shrinking.
In my view, protected Second Amendment “conduct” likely includes making common, safety-improving modifications to otherwise lawfully bearable arms. 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.
With that, the court kicked the ruling back down to the district court for further consideration and ruling within 60 days. There, it will land on the desk of U.S. District Judge Reed O'Connor, a 2007 George W. Bush appointee to the federal bench, who in March declined to grant the plaintiffs an injunction of the rule and found the final rule was interpretive – which the ATF is allowed to do – not legislative.
So, stay tuned.
Banner image: Maxim PDX with a pistol brace at the 2022 SHOT Show (Photo: Chris Eger/Guns.com)
