Update: Challenging ATF’s Stabilizing
Before the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) even finalized the official version of its pistol brace rule, a few vigilant watchdogs had already filed lawsuits to challenge its constitutionality. The Second Amendment Foundation (SAF) and Rainier Arms, joined by two individual plaintiffs, filed suit on January 15, 2021—over two years before the effective date of the final rule. Though the judge stayed that case until the rule was finalized, the resulting periodic status reports filed by ATF, in that case, became a great source of intel for those trying to predict when ATF would finally issue a formal rule on pistol braces.
On Jan. 31, 2023, the final rule was published in the federal register, and legal floodgates opened. Numerous non-profit organizations, manufacturers, distributors, and gun owners filed lawsuits to invalidate this overreaching rule. The largest of these lawsuits was initiated by the Firearms Regulatory Accountability Coalition (FRAC), who joined with the inventor of the pistol brace, Alex Bosco (through his company SB Tactical), manufacturer B&T, along with twenty-five U.S. states!
Silencer Shop proudly supports FRAC and SAF, both historically and in their challenges against the brace rule. Silencer Shop is a Charter Member of FRAC and donates 10% of all proceeds from Form 1 services to FRAC and SAF to support their lawsuits against the pistol brace rule.
Lawsuits Fighting Back Against The Pistol Brace Rule
Other challengers included Gun Owners of America (GOA), who joined with the State of Texas; the Texas Public Policy Foundation (TPPF); and the Firearms Policy Coalition (FPC) who partnered with brace manufacturer Maxim Defense.
The lawsuit filed by FPC and Maxim was the first to draw a substantive ruling from a court on the validity of the pistol brace rule. Surprisingly, Judge Reed O’Connor—a conservative judge from the Northern District of Texas who recently granted a preliminary injunction against ATF’s frames and receivers rule—denied FPC’s motion for a similar injunction against the brace rule. Undaunted, FPC and Maxim immediately appealed the case to the U.S. Court of Appeals for the Fifth Circuit, the same court that recently issued a pivotal ruling against ATF’s bump stock rule (Cargill v. Garland).
On May 23, 2023, an emergency motions panel for the Fifth Circuit entered an order granting FPC’s Motion for Preliminary Injunction Pending Appeal. As a typical per curiam order, it did not include any substantive analysis. On its face, it was limited to the named parties to the lawsuit, however, FPC and the other plaintiffs have asked the court to clarify whether it also covers FPC’s members and Maxim’s customers. The Court later clarified that this injunction DOES extend to FPC members, Maxim's customers, and the family members of the individual plaintiffs in the case. While not a nationwide injunction, this is a massive win in the fight against this ATF overreach.
On May 25, 2023, Judge Jane Boyle entered a similar injunction in SAF’s lawsuit with Rainier Arms, enjoining ATF from enforcing the pistol brace lawsuit against SAF, Rainier Arms, and the two individual plaintiffs. Judge Boyle noted that the Fifth Circuit’s injunction “extended only to the plaintiffs in that case” and she therefore issued “a preliminary injunction as to Plaintiffs in this case only.” Judge Boyle’s ruling did not provide any analysis regarding the validity of the brace rule but stated she was granting the injunction pending resolution of the appeal in FPC’s case, which she believed “will almost certainly affect, if not control” her decision in SAF’s lawsuit.
On May 26, 2023, a day after the 5th Circuit clarified that its injunction extended to protect FPC’s members, Maxim’s customers, and the individual plaintiffs’ families, a district judge in the Eastern District of Virginia entered a detailed opinion denying an injunction to an individual plaintiff. The court rejected numerous arguments raised by the plaintiff and found he had not shown a likelihood of succeeding in his lawsuit to invalidate the pistol brace rule.
On May 31, 2023, the final day of the brace rule's registration period, Judge Drew Tipton in the Southern District of Texas joined Judge Boyle from the Northern District by granting an injunction to Gun Owners of America, Gun Owners Foundation, and their respective members, as well as to individuals employed by the State of Texas. Two individual plaintiffs and their resident family members were also covered. Notably, though employees of the State of Texas received protection, the court declined (at this time) to include all Texas residents within the injunction, finding that the State had not yet shown it had legal standing to seek this type of protection for its citizens. Most of Judge Tipton's reasoning on this point was relegated to a footnote, in which he explained that while a state may have standing to assert rights under federal law, it may not seek to protect its citizens from the operation of federal law. The individual citizens, however, may have standing to seek protection from federal laws, as the individual plaintiffs in this case did.
What Does This Mean?
The courts are split at this point, and the only courts to have issued opinions discussing the validity of the brace rule have sided with ATF. However, the only federal court of appeals to take action (the 5th Circuit) has issued a temporary injunction. The SAF and FPC injunctive rulings are huge victories and great steps in the right direction, but they still leave a lot of uncertainty regarding the future treatment of pistol braces. One thing to keep in mind is that the plaintiffs in the different lawsuits have asserted a variety of challenges against ATF’s brace rule, some based on the Second Amendment, some based on the constitutional separation of powers theories, and some based on procedural arguments under the Administrative Procedures Act (APA). One big variable that may determine the practical effect of all this litigation is not just whether the challengers are successful but under which theory.
Certain theories would likely invalidate the rule and also prevent ATF from enforcing a similar rule in the future, absent a change in the underlying statute by Congress. Other theories, such as some rooted in the APA, might only serve as a stumbling block for ATF, forcing it to start the administrative process over or possibly invalidating the rule but leaving ATF free to take the same enforcement actions against brace owners directly under the federal statutes (GCA and NFA), even without the rule. ATF has repeatedly argued, in the lawsuits and elsewhere, that it had the right to take enforcement action against stabilizing braces before the rule and would retain that right even in the event the rule was invalidated.
We will be keeping a close eye on these cases and will provide updates as these cases progress.