Back in February, Steve posted, “As Pistol Brace Rule Teeters on Doom, ATF Defense Shifts To … You Can’t Sue Us.” He led up to that with this, and Ian had one of his own concerning Pistol Braces and the ATF bending to the Democrat “popular demand.
Let’s make it illegal to own this even if you purchased a brace when the ATF (the Bureau of Alcohol, Tobacco, Firearms and Explosives) said it was legal.
As opposed to the recent SCOTUS decision on bump stocks, in which the ATF tried to claim that a bump stock makes an AR-15 pattern firearm a machinegun by redefining Congress’ clear writing and definition of what a machinegun (a fully-automatic firearm whereby a single pull of the trigger results in multiple rounds being fired) is.
SCOTUS slapped them upside their heads with a stock of their own; this was the ATF trying to do an agency sidestep of the Administrative Procedures Act, which lays out a specific methodology by which a government agency can make regulations that have the Force of Law.
Sidenote: passed in 1946, the Administrative Procedures Act was a great move forward of the Progressive philosophy that the Constitution was outmoded and that we, the citizens, should not be governed by elected Representatives but ruled by “experts” that “know what’s better for you than you do yourself”. It set the stage for the explosion of regulations and in Congress basically giving up its Constitutional mandate to be the only entity that makes Law. Nowadays, it is the Executive Branch (housing all these agencies) that makes the vast majority of Law as Congress merely throws their bills over the wall for government employees to do the grunge work of fixing what Legislators didn’t want to take the time to do things right.
What we are now seeing is that mere agencies are changing their “interpretations” of a law to make it fit what they want. For instance, the EPA changing MPG regulations such that only electric cars can meeting them (and the unelected CA CARB doing the same thing there). Imagine that – we’ve allowed ourselves to be ruled by a neo-Aristocracy / Nomenklatura and not by our representatives BECAUSE we don’t hold the latter sufficiently to account.
/rant
So, a US District Court, Judge Reed O’Connor, ruled that the ATF couldn’t even follow the APA well enough to make their new Rule legal. It was a case of “ideology over law” (something we’ve seen too much of in the Biden Administration these past few years). So, adding a pistol brace to an AR-15 pistol doesn’t turn it into a barreled Rifle as defined in the National Firearms Act of 1935 (reformatted, emphasis mine):
Federal Judge Overturns ATF ‘Pistol Brace’ Rule
A federal judge in Texas has overturned a rule issued by the Bureau of Alcohol Tobacco, Firearms and Explosives (ATF) that targeted pistol attachments known as “stabilizing braces” or “pistol braces” and treated pistols fitted with such devices as short-barreled rifles, subjecting them to various restrictions.
In a 12-page decision issued on June 13, U.S. District Judge Reed O’Connor ruled that the ATF’s rule that treated roughly 99 percent of pistols fitted with the braces as short-barreled rifles violated the Administrative Procedures Act’s procedural requirements because it was not a “logical outgrowth” of the proposed version of the rule.
“The Court finds that the adaptation of the Final Rule was arbitrary and capricious for two reasons,” Judge O’Connor wrote. “First, the Defendants did not provide a detailed justification for their reversal of the agency’s longstanding position. And second, the Final Rule’s standards are impermissibly vague.”
These braces were invented to help disabled veterans who wanted to continue to shoot guns as a sport but were unable to do so due to their injuries. The ATF has, on several occasions, said that such braces did not force such pistols into the SBR category, which requires the same kind of scrutiny (and payment of a tax) due to machine guns and suppressors. A
After telling folks it was OK to have and use, their “Final Rule” pulled the rug out from underneath millions of gun owners and instantly made them felons…how convenient to destroy their Second Amendment Right to keep and bear arms!
So now that the Rule has been “vacated” (e.g., the ATF is not allowed to enforce it), it will most likely end up at SCOTUS. I’m betting that they will slap it down (6-3) as well.
From the decision (emphasis mine, reformatted):
For close to a decade, the ATF concluded that “attaching the brace to a firearm does not alter the classification of the firearm or subject the firearm to NFA control.” The ATF changed course on this position for the first time in 2023, when it issued the Final Rule reversing the agency’s otherwise long-standing policy. “When an agency changes course, as [the ATF] did here, it must ‘be cognizant that longstanding policies may have engendered serious reliance interests that must be taken into account.’” Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1, 30 (2020) (quoting Encino Motorcars, LLC v. Navarro, 579 U. S. 211, 222 (2016)). “It would be arbitrary and capricious to ignore such matters” Id. But this is exactly what Defendants did when they inexplicably and fundamentally switched their position on stabilizing braces without providing sufficient explanations and notice.
Under the Final Rule, the ATF estimated about 99% of pistols with stabilizing braces would be reclassified as NFA rifles. The ATF contemporaneously issued approximately sixty adjudications pursuant to the Final Rule that reclassified different configurations of firearms with stabilizing braces as NFA rifles. The ATF provided no explanations for how the agency came to these classifications and there is no “meaningful clarity about what constitutes an impermissible stabilizing brace.” Mock, 75 F.4th at 585 (5th Cir. 2023). In fact, the Fifth Circuit “[could not] find a single given example of a pistol with a stabilizing brace that would constitute an NFA exempt braced pistol.” Id. at 575. Such “‘unexplained’ and ‘inconsistent’ positions” are arbitrary and capricious. R.J. Reynolds Vapor Co. v. FDA, 65 F.4th 182, 191 (5th Cir. 2023) (quoting Encino Motorcars, 579 U.S. at 222).
The Defendants’ [ATF] disregard for the principles of fair notice and consideration of reliance interests is further exacerbated by its failure to follow the APA’s procedural requirements for public notice and comment. As discussed above, Defendants failed to follow proper notice-and comment procedures because the Proposed Rule and the Final Rule differed in immense ways.
Essentially, the ATF pulled a “bait and switch” that if it were one of us, we’d end up in jail. How many of these evil government agents will suffer that consequence for this?
…Consequently, the Court finds that the Final Rule’s six factor test is so impermissibly vague that it “provides no meaningful clarity about what constitutes an impermissible stabilizing brace,” and, thus, that “it is nigh impossible for a regular citizen to determine what constitutes a braced pistol” that “requires NFA registration.” Id. at 584–85. Accordingly, Plaintiffs’ Motion for Summary Judgment is GRANTED and Defendants’ Motion for Summary Judgment is DENIED as to this issue.
So, all of the People of the Gun can now bring themselves “out of the closet” without fear of retribution (my non-lawyerly opinion), so it seems.
However, until folks in ANY agency who act in similar ways are forced to suffer a large consequence (big personal fines, jail time, money to the plaintiffs), this will continue across the government spectrum. Until TEETH are added into the mix with which to punish the guilty within government, we are subject to Tyranny.