On October 2, District Judge Reed O’Connor of the Northern District of Texas granted a motion for preliminary injunction in Mock v. Garland. Judge O’Connor’s decision enjoined an ATF rule that subjects stabilizing braces to heightened regulation, including a registration requirement, under the National Firearms Act (NFA) by categorizing them as “short-barreled rifles,” or SBRs. Alex Geisel provided extensive background on stabilizing braces, the ATF rule, and initial legal challenges to the rule in this earlier post. Alex also separately summarized the Fifth Circuit’s August 1 decision that reversed Judge O’Connor’s earlier denial of the requested injunction. While most of the earlier cases (including Judge O’Connor’s opinion) were decided solely on administrative law grounds, the October 2 ruling is notable for concluding that the ATF rule likely infringes the Second Amendment right to keep and bear arms.
As Alex previously explained, a Fifth Circuit panel found in August that the final ATF rule was not a logical outgrowth of the agency’s earlier proposal because it introduced a new six-factor test in place of the quantitative worksheet that was initially proposed to determine when braced pistols qualify as SBRs. The Fifth Circuit ended its analysis there—remanding the case to Judge O’Connor to, presumably, determine that the plaintiffs were entitled to a preliminary injunction of the rule based on their Administrative Procedure Act, or APA, claims under the appellate court’s analysis. However, Judge Don Willett concurred to separately suggest that the ATF rule implicates the Second Amendment because “protected Second Amendment ‘conduct’ likely includes making common, safety-improving modifications to otherwise lawfully bearable arms.” Judge Willett did not elaborate, but Judge Stephen Higginson filed a dissenting opinion suggesting that a rule merely classifying certain weapons as subject to heightened regulation (but not banning those weapons outright) is presumptively constitutional under the Second Amendment and akin to shall-issue licensing requirements, which the Supreme Court in Bruen blessed as constitutional.
The Fifth Circuit’s decision did not limit Judge O’Connor from reconsidering other issues on remand. In his October 2 decision, Judge O’Connor adopted the Fifth Circuit’s APA analysis to find a substantial likelihood of success on the merits and held that the irreparable harm prong of the preliminary injunction analysis was satisfied due to non-recoverable compliance costs incurred by plaintiffs. Taking a cue from Judge Willett’s Fifth Circuit concurrence, Judge O’Connor went on to evaluate whether the final ATF rule infringes the Second Amendment. Judge O’Connor conducted this analysis as part of the irreparable harm inquiry for the APA claims, although it seems likely to also set forth Judge O’Connor’s substantive view on whether the rule violates the Second Amendment. Specifically, the decision noted that, “[s]eparate from the merits of th[e Second Amendment] claim, the Court finds that the Government Defendants’ implementation and enforcement of the Final Rule substantially threatens to inflict irreparable constitutional harm upon the FPC members.” In other words, Judge O’Connor found that the harm to Second Amendment rights that would result from allowing the rule to stay in place was irreparable for purposes of the preliminary injunction analysis on the APA claims.
Judge O’Connor first determined that the relevant standard for common use “is the current total number of a particular weapon that is in lawful possession, ownership, and circulation throughout the United States.” Under that standard, he found that that braced pistols are in common use because pistols themselves are widely owned and because “[a] stabilizing brace does not somehow alter that status and effectively strip [modified] pistols of their Second Amendment protection” (it also appears ATF did not dispute that “millions of braces” are in use today). Judge O’Connor also held that braced pistols are commonly used for lawful purposes. The opinion quoted Judge Willett’s concurrence for the proposition that the Second Amendment protects “‘making common, safety-improving modifications to otherwise lawfully bearable arms’ for the purpose of enhancing the performance of self-defense.” And Judge O’Connor observed that historical tradition illustrates, in his view, “the right of private individuals to modify or acquire modifications to lawfully bearable firearms so as to increase their accuracy and safety for a more effective exercise of self-defense.” As an example, the opinion invoked American gun manufacturing during the Revolutionary War and stated that “Founding Era gunsmithing involved modifying lawfully bearable pistols with extended grips and rearward stocks to facilitate greater stability, control, and accuracy in single-handed self-defense fire.” Judge O’Connor found a risk of irreparable harm based on a potential Second Amendment violation because, “if [plaintiffs] proceed by taking some compliance steps to avoid prosecution, such as permanent modification or disposal of just their stabilizing braces, they will still be deprived of at least some presumptively protected Second Amendment conduct.”
One especially interesting aspect of the October 2 decision is that it reached the opposite conclusion from Judge O’Connor’s own earlier ruling about whether the ATF rule likely infringes Second Amendment rights. In his initial March 30 decision denying a preliminary injunction, Judge O’Connor rejected the argument that the ATF rule violated the Second Amendment—reasoning that the rule “does not ban stabilizing braces, nor firearms equipped with them,” but rather only subjects the devices to heightened regulation. And Judge O’Connor also found that, with “the minimal historical analysis provided . . . [he could not] conclude that Final Rule is substantially likely to violate Plaintiffs’ Second Amendment rights” at the preliminary injunction stage.
In his October 2 decision, Judge O’Connor came out the other way—holding within the context of the irreparable harm inquiry that the rule is likely to violate the plaintiffs’ Second Amendment rights. This would be expected, of course, if the appellate court had disagreed with Judge O’Connor’s earlier Second Amendment analysis; but that’s not what happened here. Rather, the panel opinion cast no doubt on the earlier Second Amendment conclusions (only overruling the original decision on administrative law grounds). Instead, Judge O’Connor appears to have altered his decision sua sponte to conform to the reasoning in Judge Willett’s concurrence. Of course, this is all technically part of the irreparable harm inquiry as to plaintiffs’ administrative law claims—but that’s an odd way to slice the claims in the case, and I think cabining the Second Amendment analysis to irreparable harm is best read as substantive agreement with Judge Willett’s position in a way that doesn’t require Judge O’Connor to actually walk back his prior Second Amendment ruling.
Under the revised analysis, it seems quite likely that Judge O’Connor will also rule in the plaintiffs’ favor on their Second Amendment claims at a latter stage in the case. The opinion holds that braced pistols are in common use, that attaching a stabilizing brace is presumptively protected conduct, and that there is a historical tradition of “modifying lawfully bearable pistols . . . to facilitate greater stability, control, and accuracy” (implying that there is no history of restricting such modifications through regulation). That’s all that is needed to find that the rule violates the Second Amendment under Bruen. It is also a potentially major development because Judge O’Connor’s approach would likely mean that Second Amendment challenges to heightened NFA regulation of other devices (such as silencers, for example) are viable.
One other notable aspect of Judge O’Connor’s decision is that framing the historical tradition of gun use as “modify[ing] or acquir[ing] modifications to lawfully bearable firearms so as to increase their accuracy and safety for a more effective exercise of self-defense” is a very high level of generality. That’s a broad characterization that could cover any number of firearm improvements—including modifying a gun to fire automatically—and it is not clear to me how or why common use comes into play at all as a limiting principle for modifications that are presented as new innovations. Further, as Brian DeLay observes, defining the historical tradition of arms improvements and modifications so broadly necessarily “conflates amateurs with professionals” because only then is the frame “abstract enough . . . to link today’s [gunowners] with Samuel Colt, Benjamin Tyler Henry, John Browning, and others of the nation’s most accomplished professional gunsmiths.” This would be akin to framing the historical tradition of gun regulation as regulating “for public safety and wellbeing to more effectively protect society.”
 Because this was all part of the APA preliminary injunction decision, Judge O’Connor was careful to say that he was not deciding “whether the Final Rule violates Plaintiffs’ Second Amendment rights on the merits of their claims.”
 Indeed, Judge Higginson took this exact position in his concurrence at the appellate level: “[I]t bears emphasizing that ATF’s Final Rule, like the NFA itself, does not ban anything. The NFA is instead a registration law, akin to a licensing regime, which the plurality in Bruen was careful to point out as requiring fact-specific assessment.”