Wednesday, August 2, 2023

Fifth Circuit Predicts Success for ATF Pistol Brace Rule Opposition, Maintains Injunction Hindering Enforcement

Image Jim Grant

The Fifth Circuit Court of Appeals ruled in a recent three-judge panel decision that the ATF (Bureau of Alcohol, Tobacco, Firearms and Explosives) is likely to face defeat in the impending lawsuits contesting their prohibition on pistol braces. The ATF's inconsistent stance on the use of braces has been an ongoing issue, and several injunctions have been enacted by subordinate courts which essentially agree that the plaintiffs will probably succeed based on the merits of the case. 

A crucial part of the court's ruling on the case of Mock v. Garland, which contests the ATF's pistol brace ban, points out how challenging it is for the average citizen to discern what defines a braced pistol under the Final Rule. The court also criticizes the ATF's six-factor test, arguing that it fails to provide clarity about what makes a brace unacceptable, and that the ATF did not offer proper explanations or examples of acceptable use.

"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. Various AR pistols without a recognizable “brace” may fall into the strictures of the Final Rule. Such an owner may not be on notice that his firearm is subject to criminal penalties without registration.
Nor does the ATF bother to clarify the matter. The agency maintains that its six-factor test objectively assesses “design features common to rifles.” … But it simultaneously declares that the objective criteria given to assess certain factors “are not themselves determinative,” and that adjudications are made “on a case-by-case basis.”

Predictably then, the six-part test provides no meaningful clarity about what constitutes an impermissible stabilizing brace. The ATF did not provide explanations with its contemporaneous adjudications that certain weapons and platforms with stabilizing braces were SBRs under the Final Rule, nor did the ATF provide a single example of a stabilizing brace with a handgun that would be permitted under the Final Rule. Nor is the Final Rule even logically coextensive with the examples provided in the Proposed Rule."

The lack of clarity from the ATF was found to be deliberate, as it allows the agency to retain broad discretionary powers in the enforcement of their regulations. The Firearms Policy Coalition (FPC) and FPC Action Foundation (FPCAF) then announced that the Fifth Circuit Court of Appeals has ruled in favor of the plaintiffs in Mock v. Garland. They believe the plaintiffs will succeed in their lawsuit challenging the ATF's pistol brace rule, which is regarded as a significant victory for gun owners across the nation.

"Today, Firearms Policy Coalition (FPC) and FPC Action Foundation (FPCAF) announced that the Fifth Circuit Court of Appeals has ruled in Mock v. Garland, finding that FPC and FPCAF are likely to win on the merits of their lawsuit challenging ATF’s pistol brace rule. The Fifth Circuit also remanded the lawsuit back to the district court with instructions to reconsider the other preliminary injunction factors within 60 days. The opinion can be viewed at

“The ATF incorrectly maintains that the Final Rule is merely interpretive, not legislative, and thus not subject to the logical-outgrowth test,” writes Judge Smith in the Court’s opinion. “The Final Rule affects individual rights, speaks with the force of law, and significantly implicates private interests. Thus, it is legislative in character. Then, because the Final Rule bears almost no resemblance in manner or kind to the Proposed Rule, the Final Rule fails the logical-outgrowth test and violates the APA.”

The Court goes on to state: “To ensure relative stability, we MAINTAIN the preliminary injunction pending appeal that the motions panel issued on May 23, 2023, as clarified by this merits panel on May 26, 2023. This court’s injunction will expire 60 days from the date of this decision, or once the district court rules on a preliminary injunction, whichever occurs first. We direct the district court to rule within 60 days.”

“Said in its simplest terms, the Fifth Circuit just indicated that the Plaintiffs–Firearms Policy Coalition, Maxim Defense, and FPC’s individual members–are likely to defeat ATF’s pistol brace rule when the merits of this case are finally heard,” said Cody J. Wisniewski, FPCAF’s General Counsel and FPC’s counsel in this case. “This is a huge win for peaceable gun owners across the nation, a huge win for FPC’s members, and yet another massive defeat for ATF and this administration’s gun control agenda.”

Anyone interested in supporting the FPC's initiatives and pro-rights lawsuits can sign up at For those wishing to support charitable efforts for the restoration of the Second Amendment and other natural rights, tax-deductible donations can be made to the FPC Action Foundation. More information on the FPC's lawsuits and other pro-Second Amendment initiatives can be found at

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