August 10, 2023
A three-judge panel of the Fifth Circuit Court of Appeals has dealt the Biden Administration another blow, shooting down the ATF Final Rule redefining braced pistols as short-barreled rifles (SBRs).
In a 2-1 ruling on Aug. 1, the court found that the Final Rule violates the federal Administrative Procedures Act since the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) finalized the rule with no opportunity for public comment.
“The ATF incorrectly maintains that the Final Rule is merely interpretive, not legislative, and thus not subject to the logical-outgrowth test,” Judge Jerry Smith wrote 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.”
In a concurring opinion, Judge Don Willett said that along with violating the Administrative Procedures Act, the rule also violates the Second Amendment right to keep and bear arms.
“In my view, protected Second Amendment ‘conduct’ likely includes making common, safety-improving modifications to otherwise lawfully bearable arms,” Judge Willett wrote. “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.”
Cody J. Wisniewski, general counsel for the Firearm Policy Coalition Action Foundation, called the ruling an important one that bodes well for the lawsuit as it moves on through the judicial process.
“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,” Wisniewski said in a news release announcing the ruling. “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.”
The Fifth Circuit court in this latest action didn’t immediately block enforcement of the rule. Instead, it sent the case back to Texas U.S. District Judge Reed O'Connor, who will decide whether to issue an order blocking enforcement as the case proceeds through the judicial system. Firearms News readers might remember Judge Reed as the jurist who recently struck down the Biden Administration’s Final Rule on so-called “ghost guns” and firearms parts.
Since the beginning of his presidency, banning or tightly regulating pistol braces and their use has been near the top of President Joe Biden’s gun-control wish list. However, like other new rules Biden has prompted the ATF to make, this one runs afoul of the Second Amendment, especially considering the new criteria set down in the Bruen decision.
Before announcing the new rule, the ATF had on several occasions over the past decade said that stabilizing braces on AR-style pistols did not make them an SBR and should not be regulated under the NFA. Apparently, Biden pushed the matter until the poorly-thought-out brace rule was finally shoved down gun owners' throats in mid-January.
Freelance writer and editor Mark Chesnut is the owner/editorial director at Red Setter Communications LLC. An avid hunter, shooter and political observer, he has been covering Second Amendment issues and politics on a near-daily basis for nearly 25 years.