March 2, 2024
MCX-Virtus004
The MCX pistol with folding brace is super compact and easy to carry. IMG Jim Grant

Judge Reed O’Connor, a George W. Bush appointee, ruled that the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) pistol brace rule is Constitutional.

The federal lawsuit is the first on pistol stabilizing devices to be decided. The case, Mock v. Garland, was brought by the Firearms Policy Coalition (FPC) in the Northern District of Texas. FPC asked the Judge to issue a preliminary injunction against the new rule. The Judge denied the pleas of the plaintiffs.

The new rule on pistol braces made most firearms equipped with the devices to be short-barreled rifles (SBR). The Rule came after Biden ordered the ATF to target braces. Since the firearms are now considered SBRs, Americans would have to register their guns in accordance with the National Firearms Act of 1934 (NFA), add a longer barrel, modify the brace as such it can never be reattached, or turn their guns into the ATF.

FPC claimed the ATF exceeded its statutory jurisdiction and violated the Administrative Procedures Act (APA). Judge O’Connor disagreed with FPC’s conclusion. The Judge believes that the ATF has the ability and authority to determine what a rifle is. The Court claims that the term “rifle” is ambiguous.

“Given that other courts have recognized ATF’s authority to interpret the statutes it has been charged with administering when there is an ambiguity, it is not substantially likely that the Final Rule exceeds the agency’s scope of authority on this basis as the statute includes ambiguous terms in its definition of rifle,” Judge O’Connor said.

FPC also claims that the ATF pulled a bait and switch with the public since the Final Rule on pistol braces is totally different from the proposed rule. For example, ATF Worksheet 4999 is missing from the Final Rule, and most public comments addressed the regulations laid out in Worksheet 4999. The Judge stated that the Final Rule does not need to be an outgrowth of the proposed Rule and is not a violation of the Notice of Proposed Rulemaking (NPRM).

“Importantly, the final rules that are merely “interpretive” are not subject to these same notice and comment requirements, therefore do not need to satisfy the logical outgrowth test, and may take immediate effect,” the Judge wrote.

The plaintiffs also claimed that the new rule ran afoul of the United States Constitution because the ATF’s “authority requires ’a clear delegation’ from Congress.” FPC claimed that the Bureau did not have this delegation. The Judge once again disagreed because the Rule didn’t change law, it just reinterpreted the law.

“Based on the Court’s assessment above that the Final Rule interprets—but does not rewrite—the underlying statutes, the Court finds these arguments unavailing,” the decision read.

FPC claimed since the ATF said it would use a company’s advertising to decide if a pistol brace was a shouldering device, the rule violated the plaintiff’s First Amendment right. The Judge once again took the government’s side. He ruled that the plaintiffs were free to advertise however they wanted. He said the ATF wasn’t chilling free speech. They were merely listening to what a company was saying and using that to decide if a gun was an SBR.

The plaintiffs tried to argue that the vagueness of the Final Rule violated the Due Process clause of the Fifth Amendment. The Judge decided although there are no clear guidelines, there are standards that people can follow. The Judge rejected the plaintiff’s claims that the new Rule violated their Fifth Amendment rights.

“Though the six criteria by which ATF will make a weapons classification are non-dispositive, and therefore imprecise, they do provide a standard—one that tracks the statutory definition regarding whether a weapon is “designed or redesigned, made or remade, and intended to be fired from the shoulder.” Hence, while the Final Rule’s factoring criteria approach may be imprecise, it is comprehensible enough to put a person of ordinary intelligence on notice that their weapon may be subject to federal firearms laws,” the Judge wrote.

FPC also claimed that the Final Rule violated the Second Amendment and ran afoul of the Heller decision because pistol-braced firearms are in common use. The Judge ruled that pistol braces and pistol-braced guns are not being banned. He said the ATF is just asking people to register their firearms, and the requirement for registration is Constitutional.

“Nor does the Second Amendment bar the imposition of traditional registration and licensing requirements commonly associated with firearm ownership,” Judge O’Connor wrote.

The plaintiffs also argued that there is no “historical practice of regulating gunsmithing.” Under the Bruen decision, the Government must show historical evidence that they have the power to regulate firearms. The Government didn’t do that, but the Judge didn’t care. He said the Court couldn’t rely on the lack of historical precedent at this stage, but it could be a factor in the next phase of the case.

“Given the necessarily condensed briefing offered in support of this motion, the Court cannot—on the minimal historical analysis provided—conclude that Final Rule is substantially likely to violate Plaintiffs’ Second Amendment rights. Though the historical record may support such a result at the summary judgment stage, the briefing presently before the Court is not sufficient to justify the extraordinary remedy of preliminary injunctive relief,” the Judge wrote.

This stage is just the first battle of many against the new rule. With cases across the country, the final verdict on the pistol brace rule is still to be decided. The plaintiffs have the right to appeal the Court’s decision.


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.

John Crump

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