The Bureau of Alcohol, Tobacco, Firearms and Explosives has dropped a bombshell not too long ago by announcing their new rule on stabilizing braces, which has sent shockwaves throughout the industry. Under this new stupid rule, all pistols equipped with a brace will be classified as short barreled rifles and thus subject to the restrictions imposed by the National Firearms Act of 1934 — more commonly referred to as the NFA.
The gun community is up in arms about this development, and not just figuratively. Two major lawsuits have been filed to put a stop to the ATF’s pistol brace rule, with some heavy hitters backing them up. The Gun Owners of America or GOA and the state of Texas have teamed up to file the first lawsuit in the Southern District of Texas.
Meanwhile, 25 states have joined forces with SB Tactical and the Firearms Regulatory Accountability Coalition or FRAC to file a lawsuit in the Western Division of North Dakota. To top it off, the NRA is chipping in to fund the latter lawsuit, even though they are not officially a plaintiff in the case.
These lawsuits are a big deal, as they have the support of numerous states and influential gun organizations that are determined to fight back against what they see as an unjust and overreaching regulation. The battle lines have been drawn, and it remains to be seen how this legal battle will play out. But one thing is for sure: the gun community is not taking this lying down, and they are ready to put up a fierce fight to protect their rights.
Given the absurdity of it all, when the ATF made their announcement of their final rule on stabilizing braces on January 31st, everyone in the gun community knew that it was only a matter of time before Second Amendment rights advocates started filing lawsuits left and right. The rule broadened the regulatory definition of a rifle, such that pistols equipped with a brace may be considered short barreled rifles and subject to NFA regulations.
The ATF made it happen by modifying the regulatory definition of a rifle to include language that covers weapons equipped with a stabilizing brace designed to be fired from the shoulder, quote: “A weapon that is equipped with an accessory component or other rearward attachment, i.e., a stabilizing brace, that provides surface area that allows the weapon to be fired from the shoulder, provided other factors which indicate that the weapon is designed, made, and intended to be fired from the shoulder,” end quote.
As a result of this change, many firearms may now fall under the NFA’s regulation of short battle rifles. These lawsuits challenge the new rule and language change directly.
In one such lawsuit, the GOA and the state of Texas seek to have the final rule found invalid under several legal theories, including as a violation of the Administrative Procedures Act, separation of powers, and due process. Additionally, they contend that it represents an unconstitutional tax and is overly vague.
In that lawsuit, the plaintiffs allege that the rule violates both the Administrative Procedures Act and the Second Amendment. The plaintiffs argue that the ATF did not follow the proper procedures for creating a new rule and that the final rule is drastically different from the proposed rule, which they put forward originally.
In the proposed rule, the entire brace analysis was centered around a specific worksheet, but the ATF completely scrapped that worksheet and came up with a new test in the final rule. The plaintiffs claim that such a drastic change is not proper under the Administrative Procedure Act. Additionally, they argue that Chevron deference should not be used to analyze the issue, and that the rule of lenity should be used if a court finds that the term SBR is vague or the term rifle is vague.
Now, I don’t mean to get all “lawyer speak” on any of you, but I think I need to break down what is going on with this whole Chevron deference thing so we are all on the same page.
Basically, the ATF is claiming that their interpretation of the law is totally legit, and that they are entitled to some serious respect for it. But according to the rule of lenity, when there’s a criminal statute with some unclear language, the court has got to side with the people, not the big bad enforcement agency.
And just to make things extra spicy, the fifth circuit en banc panel already put the ATF on blast for trying to pull this kind of thing with bump stocks. So when Goa says that it is up to the courts, not the government, to interpret criminal laws, they are not just blowing hot air.
And if Congress wants to change things up and make braced pistols illegal, they can go ahead and do that themselves. But until then, the ATF’s sudden change of heart is a big no no. And speaking of big no no’s, let us talk about the FRAC and the 25 other state lawsuits that were filed in North Dakota.
There’s a legal dispute going on regarding the use of stabilizing braces on pistols and other firearms. The FRAC and SB Tactical, along with many states including West Virginia, Alabama, and Georgia, are suing the ATF, arguing that their new rule on stabilizing braces goes beyond their authority.
The ATF wants to regulate these types of weapons, even though the law doesn’t mention them. The lawsuit also brings up the quote “rule of Lundy,” which argues that the rules and statutes around stabilizing braces are too confusing and open to interpretation.
The lawsuit says that the ATF is breaking the rules by interpreting the law in a way that includes many weapons that are widely used, raising doubts about whether or not it is constitutional.
They also reference a previous Supreme Court decision which found that stun guns were in “common use” and therefore protected by the Second Amendment, but that there are millions of braced pistols out there, which means they are even more in “common use.”
That is important because here you have braced pistols, which are much more in the millions — conservative estimates are anywhere from 40-100 million so clearly they are more in common use than even these stun guns which the Supreme Court found were in common use in Caitano.
This FRAC lawsuit is a little bit more generic and all encompassing in some of the arguments it makes, but they are still hitting on all the main points that the new rule on Pistol braces does, in fact, violate the Administrative Procedure Act.
It is an overreach of authority by the ATF that runs contrary to the text of the statute of the NFA, and that it also does relate to the text and the protections of the Second Amendment. So that is what is currently going on with the ATF pistol brace rule.
Two major lawsuits have now been filed by two organizations in combination with a variety of states, and now the goal of all these cases that have been filed will be to try and get some sort of temporary relief, maybe a temporary restraining order or a preliminary injunction, to halt this new rule on pistol braces from going into effect before that 120 day deadline.
So that is the goal right now with all these lawsuits, but of course, if we get any more information, if anything like that happens, I will let you all know. The FRAC lawsuit, which is supported by several states, argues that the new ATF rule on pistol braces is illegal for multiple reasons.
They say that the rule violates the Administrative Procedure Act, which sets out the procedures federal agencies must follow when creating new rules, and that it goes beyond the ATF’s statutory authority under the National Firearms Act. The lawsuit also argues that the rule violates the Second Amendment’s protection of the right to keep and bear arms.
The lawsuit claims that millions of people own pistols with stabilizing braces, which are much more commonly used than the stun guns protected by the Second Amendment in a previous Supreme Court decision. The ultimate goal of the lawsuits is to get a temporary order to stop the new rule from going into effect before the 120 day deadline. If any new developments happen, I will provide updates.