Of all the regulatory priorities to have, pistol braces are about the last thing that should be on anyone’s list but here we are anyway. The Biden administration is currently litigating to keep an ATF rule prohibiting their use, but challenges to that ruling are keeping them alive.
So, are pistol braces legal? Here’s where things stand as of now.
Legal Challenges To Pistol Brace Ban
The “pistol brace ban” announced by the ATF – aka the Jan 21, 2023 Final Rule published in the Federal Register – was challenged by multiple organizations and multiple plaintiffs, creating multiple court cases.
Cases include Britto v. ATF, National Rifle Association v. ATF, Watterson v. ATF, Texas Gun Rights v. ATF, Second Amendment Foundation v. ATF and Mock v. Garland. Each challenged the brace ban on similar grounds, namely that the Final Rule is beyond the pale of the ATF and that it would irreparable harm the rights of some plaintiffs and do irreparable harm to others.
Every gun rights advocacy group you can name is either a co-plaintiff or is the plaintiff. Mock was joined by the Firearms Policy Coalition, Texas was joined by the Gun Owners of America, and of course the SAF and the NRA litigated on their own.
All suits were filed in federal court in Texas, which was a smart choice given that the Fifth Circuit Court of Appeals (which covers Texas) is one of the friendlier appellate courts to Second Amendment rights.
Initial suits were filed in the first quarter of 2023.
So…what were the results?
Results Of Pistol Brace Court Cases To Date Include A National Injunction
So far, there aren’t any actual decisions. Oh, there were lawsuits…but everything you’ve seen in the news are motions for injunctive relief (i.e. injunctions) while the suits are decided. You won’t see a decision for some time.
Federal court motions for injunctions were a mixed bag. Mock v. Garland was denied but granted a preliminary injunction – which is basically “we’ll give this to you for a little bit, but we don’t think you’ll win” – and Watterson was flatly denied.
The first signs of the tide turning toward the positive was in August of 2023. Counsel in Mock appealed to the Fifth District Court of Appeals, who handed down a decision granting an injunction until the court case is fully settled.
The decision in Mock granted injunctive relief to the plaintiffs, which included the individually named plaintiffs, Maxim Defense and the Firearms Policy Coalition. In other words, as of that month, two dudes out in Texas, a brace company and all FPC members were exempt from the brace ban.
In Texas v. ATF, the court likewise granted an injunction for Texans and Gun Owners of America members
The Second Amendment Foundation – and co-plaintiff Rainier Arms – case was initially successful in enjoining the ATF from enforcing the rule against Rainier Arms and SAF members in July of 2023 by means of a stay pending the outcome of Mock. The plaintiffs filed for a further injunction, asking for a national injunction but were unsuccessful.
The NRA was also successful in gaining an injunction for the sake of its members as well.
However, a national injunction for everyone was granted in Britto, where the rule was stayed in its entirety.
So…where do we stand? Currently, the ATF is enjoined from enforcing the rule. When will the final ruling, deciding the legality of pistol braces once and for all, finally come?
Nobody knows. Cases like this can drag on for years. It might happen by the time the next presidential term is almost over, whomever may occupy the White House at that point.
Where The Pistol Brace Ban Fails
You can argue principles all you like; court cases are decided on legal merits. In other words, there has to be a sufficient number of laws and court cases on the books that back up a legal assertion.
In these cases, the plaintiffs have all asserted similar things. Namely, A.) the ATF goes too far in interpreting the Gun Control Act in this manner, and B.) that it’s improper that they be allowed that much leeway in interpreting statutes to begin with.
That comes down to two boundaries of federal agencies. First is what’s called Delegation of Powers, and second the Logical Outgrowth Test of the Administrative Procedures Act.
Delegation of powers is a constitutional boundary, where Congress and the President can only delegate to federal agencies what they are explicitly allowed to. That includes things like coin money, regulate commerce, establish a Post Office and a few other things.
Making such a leap to include a firearm accessory rather than a type of firearm – after all, the Gun Control Act makes no mention of accessories besides suppressors – is certainly beyond the scope of what the ATF is permitted to do, as that would be the purview of the judiciary to define those boundaries.
Then we have the Logical Outgrowth Test. The APA essentially puts up guard rails for federal agencies, the short version of which is that what they decide has to closely follow the law that the agency enforces. For instance, if a new addition to the national tax code puts an excise tax on luxury yachts, it doesn’t follow to levy that same tax on jon boats.
These are the grounds that the courts have thus far ruled against the ATF on in all cases, as well as considering irreparable harm, as there is no recourse available to the plaintiffs.
So…for now…the ATF can’t enforce the rule. Whether the rule is stricken from the books? That remains to be seen. Surely there have to be some larger enforcement priorities than pistol braces…but if laws were required to make sense, there probably wouldn’t be as many of them.
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