North Dakota District Judge Daniel L. Hovland sided with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) over the regulation of firearms equipped with pistol-stabilizing devices.
The Firearms Regulatory Accountability Coalition, Inc. v. Garland was a lawsuit filed by the Firearms Regulatory Accountability Coalition (FRAC) and 24 state attorney generals challenging the ATF’s final rule against pistol-stabilizing devices. The case made similar arguments as presented in three Texas cases involving the Firearms Policy Coalition (FPC), Gun Owners of America (GOA), and the Second Amendment Foundation (SAF). All three gun rights organizations obtained preliminary injunctions for their members against the ATF regulations, and a panel of three judges from the Fifth Circuit of Appeals also ruled against the rule.
Unlike the Texas Courts, the George W. Bush-appointed judge ruled that the ATF was well within its rights to pass regulations on pistols equipped with stabilizing devices. He stated that he was unpersuaded by the Fifth Circuit’s decision. He said he tended to agree with the Circuit Court judge that dissented from the majority decision.
To get a preliminary injunction, the Judge must find that the plaintiffs are likely to succeed on the merits of the case.
Judge Hovland found that FRAC and co-plaintiffs were not likely to succeed in Court. This decision does not mean that the plaintiffs will ultimately fail. It just means that the plaintiffs didn’t prove their likelihood of a court victory.
The Judge rejected that the ATF rule violated the Second Amendment. He reasoned that “uniquely dangerous weapons, including short-barreled rifles, are not protected by the Second Amendment.” Judge Hovland stated that the Second Amendment does not protect “weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” He ignored that there are more SBRs in circulation than stun guns, and the courts have ruled there are enough stun guns to be considered “in common use.”
The Judge also claimed that since pistol braces are not firearms, there are no Second Amendment protections. Judge Hovland compared pistol braces to suppressors, which he claims are accessories. That flies in the face of the ATF’s own determination.
The ATF regulates silencers under the National Firearms Act of 1934 because the agency believes the devices meet the definition of an “arm.” The Judge seems to think that the terms “arms” and “guns” are interchangeable. He also believes that licensing requirements do not violate the Second Amendment. The Judge wrote:
“More important, the ATF’s Final Rule does not ban stabilizing braces or firearms equipped with them. Instead, the Final Rule requires individuals and entities to comply with the NFA’s statutory requirements by registering the weapons with the ATF or permanently detaching the stabilizing brace from the pistol. Simply stated, the Second Amendment is not at issue in this lawsuit, nor does the Second Amendment provide a ‘regulatory blank check’ to possess a stabilizing brace or a short-barreled rifle. The Second Amendment does not prohibit reasonable licensing regimes associated with ownership of a firearm.”
Judge Hovland also believed the ATF had the authority to issue the new rule and stated that the ATF did not violate the Administrative Procedures Act (APA).
The Judge claimed that the ATF did not change the definition of a rifle when writing the rule, and they have the authority to reinterpret the meaning of a rifle. From his decision:
“This Court is not convinced that the ATF’s interpretation of a short-barreled rifle contradicts the original meaning of ‘rifle’ such that a preliminary injunction is warranted at this stage of the case. The Court recognizes that the Plaintiffs make some reasonable arguments in support of their position, but none necessitate the issuance of a preliminary injunction at this state which is an extraordinary remedy. Therefore, the Plaintiffs have not met their burden on this particular APA claim.”
The Judge also claims the rule does not violate the rule of lenity.
The rule of lenity states that an interpretation of a rule or law must be interpreted in favor of the defendant (one charged or could be charged with a crime). Judge Hovland stated that there is no ambiguity in the rule. The Fifth Circuit Court of Appeals disagrees with his reasoning. The Texas courts have found the rule to be ambiguous.
Hovland also rejected the claim that the rule is arbitrary and capricious; he believes the rule to be clear and concise, something the Texas courts have rejected. If the rule were arbitrary and capricious, it would violate the APA.
The Judge also rejected the complaint about the cost-benefit analysis. The government did not factor in the millions of braces sold after 2019. The Judge had no problem with those numbers not being included in the final count. The absence of those numbers skewed the cost-benefit analysis results, but the Judge didn’t care.
FRAC also argued that making the rule retroactive violates the ATF’s authority. The Judge disagreed with the Plaintiffs. The Judge claims that since the rule is “interpretive,” it is not subject to the same regulations.
About John Crump
John Crump is an NRA instructor and a constitutional activist; he has written about firearms, interviewed people from all walks of life, and read 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.