Fifth Circuit Rules That ATF’s Pistol Brace Regulation Is Unconstitutional

By: José Niño

In a recent ruling, the Fifth Circuit Court of Appeals undermined the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) Final Rule (2021R-08F – Factoring Criteria for Firearms with Attached “Stabilizing Braces”).

The case in question, Mock v. Garland, saw the Firearms Policy Coalition (FPC) and Maxim Defense file a lawsuit against Attorney General Merrick Garland, the Department of Justice, and the ATF over the ATF’s rule that reclassified pistols featuring stabilizing devices as short-barreled rifles (SBRs). Due to how the firearms were now deemed to be SBRs by the ATF, they have been subjected to the National Firearms Act of 1934 (SBR) requirements.

At first, the plaintiffs lost their challenge to the ATF’s rule in the District Court prior to winning an injunction in the Fifth Circuit Court of Appeals. The Second Amendment Foundation (SAF) and Gun Owners of America (GOA) won subsequent preliminary injunctions at the District Court level.

In the Circuit Court’s ruling, it determined that the ATF likely violated the Administrative Procedure Act (APA) when it enacted the rule. The court argued that the ATF’s rule was more akin to legislation as opposed to an interpretation of the law. The Fifth Circuit Court alluded to how the Final Rule effectively has the force of law.

“The ATF incorrectly maintains that the Final Rule is merely interpretive, not legislative, and thus not subject to the logical-outgrowth test,” wrote Judge Jerry E. Smith. “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.”

FPC was ecstatic about this victory and has high hopes about its chances of obtaining a permanent injunction against the ATF rule once the merits of the case are heard.

“Said in its simplest terms, the Fifth Circuit just indicated that the Plaintiffs–Firearms Policy Coalition, Maxim Defense, and FPC’s individual members–are likely to defeat ATF’s pistol brace rule when the merits of this case are finally heard,” stated Cody J. Wisniewski, FPCAF’s General Counsel, in a public statement. “This is a huge win for peaceable gun owners across the nation, a huge win for FPC’s members, and yet another massive defeat for ATF and this administration’s gun control agenda.”

Victories in the court system against the ATF are always welcome. Nevertheless, gun owners can’t get one-dimensional in their activism. They must start building legislative coalitions that have the aim of defunding and eventually abolishing the ATF once they get in power.

As long as the ATF is allowed to freely operate, it will continue to infringe on our rights.

José Niño is a freelance writer based in Austin, Texas. Contact him via Facebook, Twitter, or email him at [email protected]. Get his e-book, The 10 Myths of Gun Control, here.  Subscribe to his Substack newsletter here.