Gun Owners of America has filed for a preliminary injunction in the Southern District of Texas federal court against the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) pistol brace rule.
Under the direction of the Biden Administration, the ATF posted its new rule about the use of pistol stabilizing devices on firearms to the Federal Register last January. The rule would turn most braces-equipped guns into short-barreled rifles (SBR). These guns would be subjected to the National Firearms Act of 1934 (NFA).
The request for a preliminary injunction comes on the heels of multiple other lawsuits around the country challenging the ATF’s attempt to reclassify pistols with stabilizing devices. Since 2012 the ATF has given the green light to companies to produce these devices and for American gun owners to spend millions of dollars purchasing braces.
Estimates vary, but there are between three million and 40 million braces in the hands of gun owners. If these gun owners do not register their pistols with the ATF, then the ATF would take “an enforcement action” against the owners which could see them going to federal prison for ten years and facing a $250,000 fine for each brace. These law-abiding citizens would become felons overnight.
The motion for the preliminary injunction highlights that the ATF caused the problem by green lighting the pistol braces initially before backtracking after pressure from anti-gun groups and the White House. It also lays down a history of the ATF “changing its mind” on things like bump stocks and pistol frames.
The petition highlights that the ATF is requiring any braced firearm owner until May 31, 2023, to comply with the new rule.
Owners can register their firearm with the ATF through an ATF Form 1 and have their gun added to the NFA registry. This option would require the owner to submit photographs of markings, passport photos, and fingerprints. The $200 tax will be waived, although the ATF might not have the authority to make that call.
Not every state allows its citizens to own SBRs. Citizens in those states will have to remove and alter the brace so it can never be reattached, install a barrel over 16 inches, destroy the firearms, or turn it in to authorities. These options can be considered irreparable harm, which is one fact that must be proved when seeking an injunction.
The second factor in a preliminary injunction is the likelihood of succeeding on the merits of the case. The injunction relies on the “design and intended to be fired from the shoulder” definition of a rifle found in the Gun Control Act of 1968 (GCA). This rule uses the “could be fired from the shoulder” alternative definition of a rifle. Unfortunately for the ATF, that definition is not legally permissible. The NFA also does not regulate pistols. The plaintiffs argue that if these firearms are not rifles under the GCA or NFA, they cannot be regulated by the new rule.
The motion also cites Bruen. The Bruen case says that only the text and history of the Second Amendment must be considered by a court when ruling on gun cases. The plaintiffs argue that there is no historical analog to banning braced pistols. This lack of a historical analog would mean the rule is not Constitutional, and a court would most likely strike it down.
It also cites the Heller Supreme Court decision. That case said that the government could not ban firearms that are in common use. The plaintiffs point to the millions of braced pistols in circulation and claim that it proves common use. The ATF’s own estimates put the number of braced pistols at three million, which is probably a gross underestimate.
The injunction goes after the NFA itself. The plaintiffs point to the $200 tax stamp as a direct tax on a right. They claim that this tax is unconstitutional. According to the Murdoch Supreme Court decision, the government cannot directly tax a Constitutional right.
The plaintiffs also point to the ATF requiring anyone with a braced pistol to self-report to the ATF by filling out an ATF Form 1. In the eyes of the ATF, these items are now an unregistered SBR in violation of the NFA. By requiring registration, the ATF is demanding gun owners self-incriminate themselves. The plaintiffs claim that this is a violation of the Fifth Amendment.
The plaintiffs also claim that the rule is “arbitrary and capricious” and violates the Administrative Procedures Act (APA). The APA determines how comment periods and analysis must be used in rule-making, and the plaintiffs argue that the ATF violated APA requirements. Much like the FRAC case in North Dakota, the plaintiffs say that the ATF did not take a reasoned approach when analyzing the new rule. They only did the bidding of the President.
The plaintiffs also argue that the ATF pulled a bait and switch with the American public. The Bureau used a point system in the proposed rule known as “Worksheet 4999.” The new rule scrapped the whole worksheet and replaced it with a blanket de facto ban on braced pistols.
AmmoLand News spoke with GOA Senior Vice President Erich Pratt. He states that this preliminary injunction is to try to stop the chaos of the new rule. He says that GOA will continue to fight the overreach of the ATF anywhere and everywhere.
“Millions of Americans are facing a shrinking deadline to register or destroy their lawfully owned brace firearms under this draconian rule from the ATF, and to that end, we hope the Judge will hear their pleas and put a halt to this measure before millions of these law-abiding people unexpectedly become potential felons overnight.”
Texas Attorney General Ken Paxton also joins GOA as a plaintiff.
About John Crump
John is a NRA instructor and a constitutional activist. John has written about firearms, interviewed people of all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons and can be followed on Twitter at @crumpyss, or at www.crumpy.com.