The U.S. 8th Circuit Court of Appeals found that the ATF’s final rule, which determined that most handguns with stabilizing posts are short-barreled rifles, was arbitrary and capricious. case teeth Firearms Control Responsibility Coalition v. Garland (“FlackThe verdict in the case was handed down on August 9th and written by Judge Stephen Glass.
The decision is packed with examples, starting with a shooter with the straps of the brace wrapped around his forearm and the cuff providing additional support. The device makes it easier to hold a heavy handgun one-handed. At the peak of their popularity in 2020, seven million braces were in the public’s possession. Countless more were sold between then and the publication of the final rule in 2023. The ATF had previously said the braces were legal. But as the court noted, “As a result of ATF’s policy shift, it appears that many individuals relied on ATF’s previous classification and committed felonies for years while possessing braced weapons.”
The first step in the ATF rule is that the rear attachment of the brace is Surface Area The court set a standard of “capable of firing a weapon from the shoulder,” but did not provide any mathematical guidance for the standard. The ATF suggested that if actual dimensions were set, fraudsters would circumvent the rules. The court responded, “Regulated persons’ desire for more specific measurements does not mean, as the ATF implies, that they want to avoid or circumvent the law. They may simply want to comply with the law by manufacturing or equipping a stabilizing brace that does not have the rear area that allows the weapon to be fired from the shoulder.”
The second step of the rule evaluates two criteria: how the brace is marketed and whether it is used in the community. But this would base criminal liability on the intent of a third party unknown to the bearer. And the rule does not specify how these criteria will be evaluated. How will the ATF evaluate alternative descriptions of the same marketing material? Who is the “general community”? As the court noted, “the community use element is based on circular reasoning: the ‘likelihood of use of the weapon by the general community’ is determined by its ‘use in the general community.'”
To take a simple example, if someone posts a video of themselves properly holding and firing a pistol without it being shouldered, how would the ATF evaluate another person who posts a video of themselves firing a pistol from the shoulder?
As the Court concluded, because the marketing and community use elements require analyzing the intent of third parties and attributing that intent to individuals who place stabilizing braces on their weapons, the final rule “will subject citizens to criminal liability for the actions of others that are arguably unknown, unrelated, and beyond the control of the regulated parties.”
The ATF provided two what it called “slide shows” of photos of various configurations of the braced pistol, all The ATF finds that the barrel likely qualifies as a short-barreled rifle, without providing any explanation of why or how it arrived at this result. The ATF suggests that the plaintiff has the burden to prove that a braced pistol is not a short-barreled rifle, an impossible task since the ATF has given no guidance. As the Court sarcastically puts it, “ATF’s burden-reversal argument is as meaningless as shouldering a rifle by its barrel…”
This is just one example of the Court’s use of gun satire. Next comes the witty remark that “the slide show is merely a warning shot.” In other words, the rule “allows ATF to reach whatever conclusion it wishes,” without explaining what criteria it will use. Next comes the Court’s most subtle but graphic remark:
The ATF claims that it intends to send “detailed classified letters explaining each decision” following the slideshow, and that the only remedy for inappropriate agency action is to “refer unexplained conclusions back to the agency for further clarification or reconsideration,” which is a lot like shooting into the side of a barn, drawing a target around the bullet hole, and declaring, “Bullseye!”
This analogy vividly illustrates how bureaucracies reach a desired conclusion and find reasons to justify it: They declare certain braced pistols to be short-barreled rifles, and then, when they have time, explain the reasons for each classification using subjective, multi-factor “tests.”
The Eighth Circuit found the final rule arbitrary and capricious and remanded the case back to the district court to reconsider whether to issue a preliminary injunction. The district court had previously ruled in Garland’s favor, denying the motion for a preliminary injunction after determining that the plaintiffs were unlikely to prevail.
Judge Bobby Ed Sheppard dissented, but did not disagree on the substantive points. He wrote: Preliminarily The provision “prohibits enforcement of the final rule” Mock vs. Garland (N.D. Tex. 2024). He quoted: Mock The court ruled that the federal government [their] No judgment… no injunction is necessary….”
Don’t assume too much. Cargill v. Garland When the Fifth Circuit Court of Appeals ruled en banc that bump stocks are not machine guns, that ruling should have been enough to instruct the government not to prosecute anyone for bump stocks.
but, Oral Argument At the Supreme Court, the government threatened that because bump stock owners have been notified in the Federal Register that the devices are machine guns, the public (including employees of the Fifth Circuit) could be prosecuted anyway. Justice Gorsuch quipped that reading the Federal Register is something gun owners “do for fun in the evening. Gun owners across the country open it by the fireplace and their dogs.” Justice Alito also asked, “Can bump stock owners who know about the Fifth Circuit’s decision be criminally prosecuted for doing something that the Court of Appeals with jurisdiction has said is not illegal?” To his surprise, the Associate Attorney General responded that they could be prosecuted regardless of the Court of Appeals’ decision.
moreover, MockAttorney General Garland has appealed the district court’s decision to grant summary judgment to the plaintiffs to the Fifth Circuit, which may overturn the vacancy and likely will only be binding in that circuit.
Moreover, the government continues to prosecute people for possessing braced handguns despite the Fifth Circuit’s invalidation of the rule, because the government is not enforcing the rule, but rather directly enforcing the statute. Flack It should also prohibit the government from enforcing the NFA on braced pistols using standards published in regulations, even if the government claims to be doing so under the law and not the regulations.
There is no circuit clash, since the Fifth and Eighth Circuits are the only appellate courts that have ruled on the final pistol brace rule. When the government knocks on the Supreme Court’s door, the door is often open. But how many gun cases does the Supreme Court want to decide? Didn’t society do better when the ATF classified braced pistols as just pistols, not short-barreled rifles?
