Litigation Highlight: New District Court Decision Rejects Second Amendment Challenge to Pistol Brace Rule

On March 1, District Judge Amos Mazzant of the Eastern District of Texas issued a decision in Watterson v. ATF, a challenge to ATF’s rule subjecting firearms equipped with certain stabilizing braces to heightened regulation under the National Firearms Act (NFA).  As Alex Geisel noted in this earlier summary,  the ATF’s final rule was issued in January 2023 and generally will cause a braced pistol to be categorized as a short-barreled rifle (and subject to heightened federal regulation) if certain factors—including total weight, length-of-pull, and the presence of raised optics—suggest that the weapon is easily fired from the shoulder.  Watterson reaches the opposite conclusion as several other cases where courts have invalidated the rule on administrative law grounds, at least as applied to the plaintiffs in those cases.  We’ve covered developments in the highest-profile challenge, Mock v. Garland, on the blog here and here.  Watterson is notable both for its conclusion on the administrative law issues and also for its evaluation, and rejection, of a substantive Second Amendment challenge to the ATF brace rule.

Judge Mazzant first summarized the state of play with regard to other cases where the pistol brace rule is being challenged.  As the judge observed, there is currently no nationwide injunction of the rule even though a number of courts—including the Fifth Circuit—have found administrative law infirmities at the preliminary injunction stage.  On remand in Mock, the district judge granted preliminary injunctive relief to the plaintiffs in that case (notably finding that the rule “threatens to impose on their fundamental right to keep and bear arms in self-defense”), but declined to enjoin the rule as to non-parties.  Another federal district judge in Texas, Matthew Kacsmaryk, enjoined the rule “in its entirety” in November.  But Judge Kacsmaryk subsequently stayed that ruling in Britto v. ATF pending appeal to the Fifth Circuit, in a January 11 order.  In short, the current situation is a patchwork of injunctions where the ATF rule remains in effect generally, but has been enjoined as to certain individual plaintiffs (and members of organizational plaintiffs) in at least three different cases. 

Watterson has something of an unusual procedural history.  In June 2023, Judge Mazzant issued a short decision enjoining the ATF from enforcing the rule against Watterson—but only pending the Fifth Circuit’s decision in Mock.  Watterson then moved for reconsideration, asking the Court to specify that he was entitled to preliminary injunctive relief regardless of the Fifth Circuit’s decision and to clarify that ATF could not enforce the rule against him even after that decision was issued.  In August, following the Fifth Circuit’s decision in Mock, Judge Mazzant issued an order granting that motion, finding “that Plaintiff has established a likelihood of success on the merits in this case on his claim under the Administrative Procedure Act,” and setting an expedited briefing schedule on the other preliminary injunction factors (but still not explicitly saying that ATF was enjoined from enforcing the rule against Watterson).  Watterson filed an interlocutory appeal to the Fifth Circuit in September. He argued that, by failing to conclusively opine on the relief requested, the court had “effectively denied Watterson’s motion for a preliminary injunction [by] refus[ing] to modify the temporary injunction” issued in June.  The Fifth Circuit remanded the case in November, “for the limited purpose of allowing the district court to rule expeditiously on the plaintiffs pending motion,” and Judge Mazzant then ordered supplemental briefing.

Somewhat surprisingly, the judge’s subsequent March 1 decision reversed course almost entirely and found that—notwithstanding his prior pronouncements in the case—Watterson was not alleging the same administrative law claims that the Fifth Circuit vindicated in Mock and thus was not entitled to relief automatically under the circuit’s decision in that case.  Rather, Judge Mazzant found that Watterson brought only substantive challenges to the rule (alleging it was beyond ATF’s delegated authority to issue), not a Mock-style claim that ATF had committed procedural violations of the notice-and-comment process in promulgating the rule.[1]  Judge Mazzant found that these challenges failed at the preliminary injunction stage, even accounting for the Fifth Circuit’s holding in Mock.  

He first rejected the plaintiff’s separation of powers and unconstitutional agency delegation claims, observing that “ATF holds the delegated authority to administer and enforce the . . . NFA” and that “the Final Rule is needful and necessary to carry out the NFA[‘s] provisions.”  The judge next tackled Watterson’s claims under the Administrative Procedure Act.  The plaintiff argued that ATF exceeded its authority by rewriting clear statutory language.  He also asserted that the rule implicated the Major Questions Doctrine, and thus a court should presume that Congress had not delegated authority to ATF to determine when braced pistols constitute short-barreled rifles.  Contrasting this case to the litigation challenging the Biden administration’s ghost-gun ban, the judge observed that “[t]he Final Rule [here] does not ‘rewrite’ the definition of ‘rifle’ to encompass additional weapons not previously understood to fall within the ambit of the [Gun Control Act], but rather provides a framework to determine whether a particular weapon equipped with a stabilizing brace is designed, made, and intended to be fired from the shoulder.”  Based on his earlier conclusion that ATF properly holds delegated authority to construe provisions of the relevant federal gun control legislation, the judge rejected the plaintiff’s Major Questions Doctrine argument.  Watterson also alleged that the rule improperly purported to become effective sooner than the earliest possible date provided in the Congressional Review Act.  The judge dismissed this argument, observing that any technical non-compliance was not legally relevant because “the ATF established a 60-day waiting period before it would initiate any enforcement actions pursuant to the Final Rule.”

Finally, Watterson brought a substantive Second Amendment challenge to the pistol brace rule.  ATF responded by arguing that:

1) a stabilizing brace, as an attachment, is not protected by the Second Amendment; 2) a pistol equipped with a stabilizing brace subject to the Final Rule is substantially similar to that of a short-barreled rifle, which is a dangerous and unusual weapon not protected by the Second Amendment; and 3) the registration and taxation requirements of the Final Rule are not protected by the Second Amendment.

Judge Mazzant first analyzed whether a stabilizing brace is an “arm” entitled to Second Amendment protection. While observing that “[f]irearm accessories or attachments [like silencers] have generally not been held to constitute bearable arms,” he concluded that “[s]tabilizing braces only come within the Final Rule’s purview when attached to a firearm.”  This is because registration applies to braced pistols, not to the braces themselves.  Thus, Judge Mazzant appears to have accepted the argument “that a pistol equipped with a stabilizing brace is, as a whole, a weapon protected by the Second Amendment.”

However, the judge concluded that braced pistols were nevertheless “dangerous and unusual” under Heller and thus not protected by the amendment.  Citing Heller and Miller, the judge observed that short-barreled rifles are dangerous and unusual weapons and held that, “[b]ecause a pistol equipped with a stabilizing brace subject to the Final Rule effectively becomes a short-barreled rifle, it too likely becomes a dangerous and unusual weapon not protected by the Second Amendment.”  Since he found that braced pistols are by definition dangerous and unusual under binding precedent, the judge necessarily concluded that the braces could not be “in common use for lawful purposes.” 

While this was enough to decide the Second Amendment issue, in his view, the judge briefly considered the question of historical analogues.  Here, he analogized mainly to concealed carry licensing and noted Bruen’s approval of objective licensing rules.  The judge found that the plaintiff had failed to show that ATF’s registration requirements for braced pistols categorized as short-barreled rifles were similar to the types of excessively burdensome concealed carry registration requirement identified by the Bruen majority.  Specifically, the judge would have held that waiting several months for registration approval is “not lengthy enough such that Plaintiff's Second Amendment right is denied,” and that “Plaintiff cannot show that a $200 tax is so exorbitant that he is effectively denied his Second Amendment right to bear arms.”

Watterson is a fascinating case, especially because it suggests that some of the executive branch firearm regulations recently challenged in court (the Trump administration’s ban on bump stocks, which the Supreme Court will address this term in Cargill, and the Biden administration’s pistol-brace and ghost-gun rules) may not necessarily all rise or fall together.  Rather, Watterson draws a line between procedural irregularities of the kind addressed in Mock—which might be easily addressed or corrected by re-enacting the relevant rule—and the kind of substantive agency overreach at issue in Cargill.  That said, it’s difficult to know what exactly to make of the judge’s reversal from initially suggesting that the plaintiff had a meritorious claim to denying all relief.  I’d expect the Fifth Circuit to take a careful look at the case on appeal and potentially reverse, and the case is likely to force the circuit’s hand to decide the question of whether the pistol brace rule was within ATF’s power to enact at all (putting aside the agency’s back-and-forth during the rule-making process).

Finally, Judge Mazzant’s application of the “dangerous and unusual” test seems perhaps unnecessarily stunted.  The judge does not conduct any analysis of whether braced pistols are actually more dangerous than regular pistols—for example, by examining the rate of fire or other metrics.  Rather, the opinion decides in a relatively conclusive fashion that the Supreme Court’s precedents have settled the question by referring to short-barreled firearms as “dangerous and unusual.”  It’s very hard to quarrel with that as a factual matter.  All the way back in its 1939 decision in Miller, the Court held that “a shotgun with a barrel less than 18 inches long” was not protected by the Second Amendment; and Heller further emphasized that “that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”  But it’s yet another instance, I think, where the exclusion of all empirical evidence from Second Amendment cases doesn’t necessarily lead to greater protection of the right to keep and bear arms—especially considering that pistol braces were originally invented to help disabled veterans shoot more accurately and might indeed be effective for that purpose.