The Biden administration’s gun control grab, aka the pistol brace rule, has animated a frenzy of challenges in the federal courts. Lawyers for the Bureau of Alcohol, Tobacco, and Firearms must have had to cancel vacation plans, as at least three significant cases are now ongoing. They are affiliated with powerful gun rights groups and state governments, too. Can any of them create a legal barrier to the ATF’s promised enforcement of a rule to require the registration of millions of firearms? Americans only have until May 31 to comply with the new law or face felony charges.
Future Felon Club
Between “10 and 40 million stabilizing braces and similar components” are already in peoples’ hands. These are not unregulated firearms; they are pistols and are subject to the same laws and regulations as any handgun. Yet, through ATF rulemaking, the Biden administration is trying to create a federal registry of these guns and their owners and to laden any future transfer with a $200 fee, paperwork filings, and federal permissions. Gun rights advocates say the administration is impermissibly legislating and that the rule itself violates the Second Amendment.
The first ATF ruling on pistol braces went out in 2012, which said they were allowable accessories. However, by January 13, 2023, when the new Biden brace rule was announced, the agency issued several letters and rulings, most affirming their earlier guidance but leaving plenty of room for uncertainty. That motivated the Second Amendment Foundation to file suit against the agency over its rulemaking back in January of 2021. The case, Rainier Arms v. BATFE, filed in federal court in Texas, went on for a year before being put on hold until the ATF could announce a new rule. Now it’s back on before Judge Jane J. Boyle, a George W. Bush appointee. Her latest order lifts the stay on the case on February 17, when updated pleadings will be filed.
Ballot Box, Jury Box, Cartridge Box
Firearms Regulatory Accountability Coalition, Inc. v. Garland is the biggest case by the number of plaintiffs. Twenty-five states’ attorneys general joined with SB Tactical, a company that makes many popular braces, filing in federal court in North Dakota. The case is currently before magistrate Clare R. Hochhalter. Magistrates aren’t appointed by the president like district court judges, but Hochhalter is likely not an anti-gun activist on the bench.* It was widely reported that the NRA was joining the case. However, according to an NRA statement to LN, they are not plaintiffs but are contributing financially.
Ruger AR-15 pistol brace
By length of complaint, at 132 pages, the winner the is Gun Owners of America’s case, joined by the state of Texas, filed in federal court in Texas. State of Texas v. BATFE is before federal district judge Drew B. Tipton, a Trump appointee. This suit comprehensively covers the arguments against the rule, claiming it was implemented impermissibly and forbidden under the Second Amendment and the Supreme Court’s Bruen decision.
2022’s New York State Rifle & Pistol Association, Inc. v. Bruen requires “a firearm regulation is consistent with this Nation’s historical tradition” to be valid. Reason magazine just published a handy resource for lower court judges on how to go about deciding the historical aspect demanded by the case. Firearms policy expert and law professor David Kopel wrote about government attorneys in gun control cases now claiming they need months-long delays to conduct historical research “supposedly” now required:
“While delay-seeking government lawyers have been arguing that courts need the advice of history or political science professors who have no legal training, the Bruen case demonstrates the opposite.” And, “There are 289 sources cited in Bruen. Of these, 288 are readily available online or in modern reprints of older books.”
If these cases yield no stay, soon, we should expect emergency petitions to be filed, including some to the Supreme Court. While the Supreme Court’s current composition may make for a charitable reception to arguments against the regulation, the court has recently bristled against ruling on big issues from its emergency docket. For now, brace owners are forced to wait to find out if they must register or destroy their previously legally possessed accessories.
*According to a 2017 report, Mr. Hochhalter put his name forward for President Trump’s consideration for appointment as US attorney. He didn’t get the job, but that he had a chance at all suggests his history includes no observable hostility to gun rights.
