It’s 1:20 PM Eastern and my inbox received the expected challenge to the ATF’s posted regulation a mere 260 minutes after the open of business here.
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DALLAS, TX (January 31, 2023) – Today, Firearms Policy Coalition (FPC) announced the filing of litigation challenging the Bureau of Alcohol, Tobacco, Firearms and Explosives’ Final Rulemaking on firearms equipped with stabilizing or pistol braces. The Petition in FPC’s Mock v. Garland, along with other case documents, can be viewed at FPCLaw.org.
“This lawsuit challenges, inter alia, the Factoring Criteria for Firearms with Attached Stabilizing Braces, promulgated by the Department of Justice and the Bureau of Alcohol, Tobacco, Firearms and Explosives to regulate ‘braced pistols’ as ‘short-barreled rifles.’ In so doing, for the reasons set forth herein, the Agencies violate the Administrative Procedure Act and the United States Constitution,” the Petition states.
The Petition continues: “Even if the Final Rule does not violate the APA and is allowed to stand, the Agencies’ National Firearms Act (“NFA”), laws, regulations, policies, and enforcement practices with respect to ‘braced pistols’ that the Agencies’ have classified as “short-barreled rifles” violate the Second Amendment. Plaintiffs thus further seek declaratory and injunctive relief to secure their constitutionally protected right to keep and bear arms in the absence of vacatur of the Final Rule.”
“Federal agencies do not have the power to write new laws, and yet the ATF continues to attempt to expand its authority using the federal rulemaking process,” said Cody J. Wisniewski, FPC’s Senior Attorney for Constitutional Litigation. “This ‘rule’ is, in effect, a federal law that will transform millions of peaceable people into felons overnight simply for owning a firearm that has been lawful to own for decades. We won’t stand idly by while the ATF tramples the rights of millions of peaceable individuals.”
“At its most basic level, this rulemaking represents a massive and unlawful bait-and-switch on peaceable gun owners,” said FPC Director of Legal Operations Bill Sack. “For nearly a decade the ATF’s position on pistol braces has been relied on by millions of gun owners. Now, with the stroke of a bureaucrat’s pen, those same people are told they are felons unless and until they submit themselves to invasive regulation, registration, dispossession of their property, or worse.”
Individuals who would like to Join the FPC Grassroots Army and support important pro-rights lawsuits and programs can sign up at JoinFPC.org. Individuals and organizations wanting to support charitable efforts in support of the restoration of Second Amendment and other natural rights can also make a tax-deductible donation to the FPC Action Foundation. For more on FPC’s lawsuits and other pro-Second Amendment initiatives, visit FPCLegal.org and follow FPC on Instagram, Twitter, Facebook, YouTube.
Firearms Policy Coalition (firearmspolicy.org), a 501(c)4 nonprofit organization, exists to create a world of maximal human liberty, defend constitutional rights, advance individual liberty, and restore freedom. FPC’s efforts are focused on the Right to Keep and Bear Arms and adjacent issues including freedom of speech, due process, unlawful searches and seizures, separation of powers, asset forfeitures, privacy, encryption, and limited government. The FPC team are next-generation advocates working to achieve the Organization’s strategic objectives through litigation, research, scholarly publications, amicus briefing, legislative and regulatory action, grassroots activism, education, outreach, and other programs.
FPC Law (FPCLaw.org) is the nation’s first and largest public interest legal team focused on the Right to Keep and Bear Arms, and the leader in the Second Amendment litigation and research space.
Especially considering this language in the rule summary,
Notwithstanding the 120-day compliance period, discussed above, the rule is immediately effective in that the Department may seek to enforce the NFA’s requirements with respect to any new making or new transfer of a weapon with an attached “stabilizing brace” that constitutes a short-barreled rifle under the NFA. The Department believes that delaying enforcement of the relevant NFA provisions is not necessary to allow an equitable opportunity for compliance because all persons, through publication of this rule, have received notice that the NFA may in fact apply to their conduct. Further delaying enforcement also would be inconsistent with public safety. Therefore, ATF may enforce the NFA against any person or entity that—any time after the publication date of this rule—newly makes or transfers a weapon with an attached “stabilizing brace” that constitutes a short-barreled rifle under the NFA. For purposes of the Congressional Review Act, however, the Department will wait to actually initiate such enforcement actions for at least 60 days from publication of the rule in the Federal Register . See 5 U.S.C. 801(a)(3).
The brace rule is enforceable immediately but the department is waiting 60 days for congressional review for compliance with the CRA. This has been flagged to apply to new builds and transfers, no action is listed to be taken against possessors who lawfully purchased their or built their firearm in the current braced configuration and those possessors have until May 31st to file their tax exempt Form 1.
This sounds like they made a law, looks like they made a law, feels like they made a law, and smells like they… well, nevermind on that. But the brace rule has been hit with the expected immediate challenge. We will see how the courts take to the challenge and what measures, such as a pause on enforcement, implementation, the timetable for amnesty, etc. that will result as it makes its way through the legal system.
I fully expect this to fail after review, the questions are whose and when.