Arm Brace Ban Rule Blocked By Court (For Some People, For Now)

Daniel Y
by Daniel Y
Arm Brace Ban Rule Blocked By Court (For Some People, For Now)

A lawsuit spearheaded by the Firearms Policy Coalition (FPC) has secured a preliminary injunction against the ATF arm brace ban. What exactly does that mean? And who does that apply to? This is all still a little unclear, but let’s take a look at this case and what might be on the horizon.

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This article is purely for educational use and is not legal advice. If the topics discussed in this article impact you personally, you should talk to an attorney licensed in your state. I am not licensed in any state within the 5th Circuit and I am not your attorney.

Background

We’re all now intimately familiar with ATF Rule 2021R-08F Factoring Criteria for Firearms with Attached “Stabilizing Braces.” This administrative rule looked at the world of stabilizing braces and said, in short, “All those pistols with the arm braces we previously approved and said were not SBRs are actually SBRs and you’re all felons now because we said so.”
This obviously is a major issue for gun owners. The ATF estimates there are maybe a few million arm braces in circulation. The Congressional Research Service estimates the number is somewhere between 10 and 40 million. Regardless of which of those numbers you believe, the ATF deciding on its own, without Congress, that guns sold off the shelf of FFLs (with Form 4473 completed for the sale) are actually unregistered NFA items is a big deal. The seriousness of this situation increases because NFA violations carry heavy penalties of up to 10 years a pop, and because the ATF intends to begin enforcing the brace ban on May 31st.
Lawsuits are inevitable when the ATF acts this way. On the day the brace ban became effective, Firearms Policy Coalition and named plaintiffs William Mock and Christopher Lewis sued the ATF and the Department of Justice, as well as Attorney General Merrick Garland and ATF Director Steve Dettelbach. Maxim Defense also joined the lawsuit later as a plaintiff. The shorthand name for that case is Mock v. Garland.
The lawsuit asserts some fairly simple claims. First, the ATF’s rule violates the Administrative Procedures Act (APA). The APA gives courts the power to “hold unlawful and set aside” agency actions, like rules, that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” or that are “contrary to constitutional right[.]” Second, they argue that the ATF’s treatment of braced pistols as SBRs violates the Second Amendment. That analysis goes through the tests laid out in Bruen and Heller.

So What Happened?

The lawsuit was initially filed in Federal Court in the North District of Texas. FPC sought a preliminary injunction, or, failing that, postponement of the effective date of the brace ban. The district court judge was not persuaded and denied the motion. Plaintiffs then filed an interlocutory appeal (an appeal as to a specific issue they think was wrongly decided, before dealing with the rest of the case). That appeal went to the 5th Circuit, which covers Texas, Louisiana, and Mississippi.
The 5th Circuit has been an important place for this kind of litigation. Recently they ruled on a similar ATF rule issue around the bump stock ban. That case was resolved in favor of gun owners by an en banc panel of judges (in that case, 13 of 16 total judges). Side note: the 6th Circuit recently came to a similar conclusion about bump stocks, so the 5th Circuit is not all on its own in this line of thinking.
This is a short and sweet order. The 5th Circuit grants an expedited argument schedule and grants the injunction in two sentences.
A three-judge panel of the 5th Circuit ruled in favor of FPC and granted the injunction pending appeal. But this is not the end of the story. This is a preliminary injunction, not a final injunction. That means the ATF cannot enforce the brace ban against the Plaintiffs until there is a decision on this appeal. It also applies only during the appeal process.

Looking Forward

While this preliminary injunction against the brace ban is a great start, it is far from the end of the road. It only applies until the appeal is complete. Both sides are scheduled to submit briefs on an expedited schedule. The last of those briefs must be filed by June 20th, so it will be a little while before the appeal is resolved, but that is very fast in the world of courts.
Another unclear point is who, exactly, this injunction protects. The order granting the injunction is extremely short and only states that the injunction applies to the “Plaintiffs.” If you are William Mock or Christopher Lewis you are in the clear. But what about FPC and Maxim Defense? Are all FPC members covered by this injunction? Or are only FPC members within the 5th Circuit covered? Are owners of Maxim Defense arm braces covered? This is not yet clear, but FPC filed a motion for clarification to get the 5th Circuit to explain who is covered by this injunction.
What is the likely outcome of this lawsuit? That remains to be seen. The only thing less predictable than a judge is a jury. But the three judges who ruled on this motion felt that this case was likely to go in FPC’s favor. That is a good start.
It is not uncommon for a panel of judges to go one way on an issue, then be overruled by a larger panel later on. However, 13 of 16 judges in this Circuit thought the right decision in the bump stock case was tossing the ban. There is substantial overlap in ATF’s position in that case and in this case, so the odds do look good for a victory down the road. Personally, I would say I am cautiously optimistic about the trajectory of this case.
Also, a similar case by Gun Owners of America is pending in the Southern District of Texas. However, we will all have to wait and see what happens in these cases. Stay tuned for more coverage when news becomes available.

UPDATE 5/26/2023

The Fifth Circuit issued a clarification on the meaning of “plaintiffs” and it seems to cover some, many, or all of FPC’s members. FPC also posted a description of the order, which states:
“Plaintiffs merely request clarification on whether their reading of the term ʻPlaintiffs’ to include the customers and members whose interests Plaintiffs Maxim Defense and Firearms Policy Coalition (ʻFPC’) have represented since day one of this litigation is correct.’ That reading is correct. Also as requested, the term “Plaintiffs in this case” includes the individual plaintiffs’ resident family members.”
This is a helpful clarification but still leaves some ambiguity. Does this apply to only FPC members who were members on “day one of this litigation” or those who joined during litigation? The order is specifically not a complete nationwide injunction, but it is silent as to its application to FPC members outside the Fifth Circuit. Can a Maxim Defense brace be added to a gun today to create a new braced pistol that is protected from the ATF rule (for the time being)? I honestly do not know the answers to any of these questions. But I did re-up my FPC membership just in case.
PSA AK-105 with a stabilizing arm brace.
Daniel Y
Daniel Y

AKA @fromtheguncounter on Instagram. Gun nerd, reloader, attorney, and mediocre hunter. Daniel can still be found on occasion behind the counter at a local gun store. When he is not shooting, he enjoys hiking, camping, and rappelling around Utah.

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  • SkorpionFan SkorpionFan on May 26, 2023

    Updated info 5/26/2023

    https://www.firearmspolicy....

    NEW ORLEANS, LA (May 26, 2023) — Today, Firearms Policy Coalition (FPC) released a statement on the Fifth Circuit’s Order clarifying that the Injunction Pending Appeal in Mock v. Garland applies to FPC’s members, Maxim Defense’s customers, and the individual plaintiffs’ resident family members. The order, along with other case documents, can be viewed at FPCLaw.org.
    ...
    "We're incredibly excited to report that the Fifth Circuit has clarified that our injunction covers FPC's members and Maxim Defense's customers, as we have always argued for," said Cody J. Wisniewski, Senior Attorney for Constitutional Litigation. "This relief will offer protection while we continue to fight against ATF's overreach."

  • Gunsandrockets Gunsandrockets on May 28, 2023

    So three more days before millions of Americans are instant criminals? Some of the people within the jurisdiction of 5th Circuit Appellate Court may be temporarily protected, but not anyone else in the United States. And I haven't heard of any rush of those citizens to register their arm-braces with the ATF.

    Next up on the ATF hit list? Redefining all handguns as NFA weapons. How? Because they are commonly used two-handed, intended to be shot two-handed, and people train with them two-handed, therefore they are not handguns anymore...right?

    I can hardly wait to see the ATF regulations sustaining this. Any handgun with a squared off trigger guard, any handgun with a left-thumb memory pad, any handgun with a 'speed pedal', any heavy revolver with scope mounts, all obviously intended for two hand shooting...right?

    • Xerxes036 Xerxes036 on May 29, 2023

      @gunsandrockets Yep FPC has yet to explain how that order covers anyone outside the 5th circuit states but yet them and most guntubers are saying being an FPC member alone protects you

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