WILL wins nationwide injunction against pistol brace rule

The Wisconsin Institute for Law & Liberty (WILL) has won a major Second Amendment legal victory, securing a nationwide injunction against a proposed Biden administration rule that would require millions of Americans, including many disabled veterans, to register and pay taxes on up to 40 million pistols with stabilizing braces.

With the rule, the ATF is recategorizing the guns as short-barreled rifles (SBR), which would regulate them under the National Firearms Act. The stabilizing braces were designed to help disabled veterans fire their pistols safely.

In Britto v. ATF, the court’s injunction is the first that applies to all Americans. It follows several preliminary injunctions applying to the plaintiffs only. WILL’s deputy counsel Dan Lennington said the injunction represents an important constitutional safeguard.

“This new federal ruling protects the Second Amendment rights of millions of Americans,” Lennington said. “WILL is proud to work alongside our clients and blaze a trail against this unconstitutional federal action.” 

WILL filed the nation’s first lawsuit against the ATF’s rule back in January on behalf of three decorated military veterans from Wisconsin and Texas, Darren Britto, Gabriel Tauscher, and Shawn Kroll. The conservative group argued that the ATF could not circumvent Congress and force Americans to choose between registering their firearms with the federal government or becoming criminals. 

Under the rule, those who refused to reclassify their weapons — and to register and pay the $200 tax stamp — could have been jailed and fined. While the main case is ongoing, the injunction now protects those who own pistols with stabilizing braces from either registering or facing punishment.

Among other things, the judge in the case, U.S. district judge Matthew Kacsmaryk, wrote that the rule would  place undue financial burden on not just gun owners but pistol brace manufacturers.

“Additionally, ATF admits the 10-year cost of the rule is over one billion dollars,” he wrote. “And because of the rule, certain manufacturers that obtain most of their sales from stabilizing braces risk having to close their doors for good.”

Kacsmaryk also said the rule was unlawful and likely to lose on the merits. 

“The court is certainly sympathetic to ATF’s concerns over public safety in the wake of tragic mass shootings,” the judge wrote. “The rule embodies salutary policy goals meant to protect vulnerable people in our society. But public safety concerns must be addressed in ways that are lawful. This rule is not.”

Likely to lose

In a separate case challenging the rule, in August, a federal court of appeals determined that the rule would likely fail to pass constitutional muster. Among other things, the court condemned the rule as a piece of legislation.

“The final rule affects individual rights, speaks with the force of law, and significantly implicates private interests,” judge Jerry Smith wrote for the 2-1 appeals court majority. “Thus, it is legislative in character.”

In addition, the court determined that the final rule departed significantly from the proposed rule and ignored public comment. And when the agency removed a worksheet from the proposed rule to determine whether a braced gun was an SBR or pistol, the court said that effectively rewrote the rule, and did so vaguely.

“Nowhere in the Proposed Rule did the ATF give notice that it was considering getting rid of the worksheet for a vaguer test,” Smith  wrote. “Instead, the ‘Comments Sought’ section of the Proposed Rule requested only ‘additional criteria that should be considered’ and comments on whether the ATF ‘selected the most appropriate criteria.’ Removing all objective criteria operates a rug-pull on the public.”

And that wasn’t all, the judge determined. Indeed, Smith wrote, the rule was so vague that most people wouldn’t be able to understand or reasonably use it to determine whether a gun was a SBR or pistol.

“Under the Final Rule, it is nigh impossible for a regular citizen to determine what constitutes a braced pistol, and outside of the sixty contemporaneous adjudications that the ATF released, whether a specified braced pistol requires NFA registration,” Smith wrote. “In particular, the requirements involving analysis of third parties’ actions, such as the ‘manufacturer’s direct and indirect marketing and promotional materials,’ and ‘[i]nformation demonstrating the likely use of the weapon in the general community,’… would hold citizens criminally liable for the actions of others, who are likely unknown, unaffiliated, and uncontrollable by the person being regulated.”

Smith also rejected a government argument that the new rule really imposed no new restrictions, only a new interpretation. If that was indeed the case, he wrote, the logical conclusion was important.

“Inspecting the Final Rule from 10,000 feet, it has significant implications for braced-pistol owners,” he wrote. “If the government is correct, and the rule is only interpretive, millions of Americans were committing a felony the entire time they owned a braced pistol.”

The government’s interpretation just didn’t wash, Smith wrote.

“Before the Final Rule, the ATF would not prosecute an individual for owning a braced pistol,” Smith wrote. “There was no indication that persons or organizations acted unlawfully before the Final Rule’s publication by possessing or transferring a braced pistol. Post-Final Rule, the government has attempted to claim that the stabilizing braces were always unlawful — but that is flatly unpersuasive given the history of ATF regulation and action. The character of the rule is legislative.”

Still, the panel did not issue a nationwide injunction, which WILL succeeded in obtaining last week in its case.

Chilling details

For those who are unwilling to register their braced pistols, the rule would require gun owners to destroy their stabilizing brace or turn in the weapon. Failure to register or destroy a previously legally owned pistol brace could result in a 10-year prison sentence and up to $10,000 in fines.

In Congress, GOP senators led by Sen. John Kennedy of Louisiana and Sen. Roger Marshall of Kansas introduced legislation to block the rule — legislation that had no chance to pass — and some sheriffs across the country declared they wouldn’t enforce it.

Count Oneida County sheriff Grady Hartman among that group. He told The Lakeland Times earlier this year he did not agree with the new rule.

“It is frustrating when the ATF arbitrarily changes law which makes an item legal one day, and then illegal the next,” Hartman said. “My opinion is the rule change is unconstitutional, much like the bump stock ban which was recently overturned. We have no intention on enforcing this new rule and instead will keep focusing on the more important issues in the Northwoods, like concentrating on the meth epidemic.”

WILL’s lawsuit was the first to be filed after the rule was published. The complaint specifically alleges that the rule violates the Second Amendment and the Separation of Powers, which prohibits federal agencies from making new laws without clear Congressional authorization. 

WILL’s Lennington said the veterans challenging the rule had defended the nation overseas and were now defending constitutional rights at home.

“WILL is proud to represent these patriots,” he said. “The Biden administration has no power to re-classify pistols as rifles, and we will vigorously defend the Second Amendment in federal court.”

In the complaint, WILL argues that the ATF is effectively reclassifying pistols with stabilizing braces that are designed and intended to be attached to the user’s forearm as short-barreled rifles that are designed and intended to be fired from the shoulder.

“ATF made this change without legal authority and despite previously and repeatedly concluding just the opposite,” the complaint stated. “This regulatory about-face means that by bureaucratic fiat, ATF is forcing millions of Americans to decide among three unthinkable choices: (1) destroy, dismantle, or hand over the property they purchased with ATF’s prior and affirmative approval, (2) list their pistol — and by extension their own name and address — on a national gun registry, or (3) commit a felony.”

ATF’s actions are unlawful, the complaint asserted. 

“The new rule unlawfully usurps Congressional authority by significantly expanding the definition of ‘rifle’ under federal law and, with it, imposes potential criminal liability on millions of Americans exercising their Second Amendment rights,” the complaint stated. “Such a dramatic seizure of legislative authority violates not only the Administrative Procedures Act but the separation of powers, as informed by the Major Questions Doctrine.”

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.