An Update on Legal Challenges to the Pistol Brace Rule

In 2021, the Biden administration promulgated a rule through the Bureau of Alcohol, Tobacco, and Firearms (ATF) setting forth a framework for determining whether pistols equipped with stabilizing braces are considered “short-barreled rifles” and thus subject to a tax and heightened regulatory requirements under the National Firearms Act (or NFA).  That rule went into effect in 2023.  It has since been challenged in multiple lawsuits as exceeding ATF’s statutory authority.  Signs now point to the Trump DOJ potentially declining to defend the rule in court, which would signal its demise.

There are many cases challenging the pistol brace rule, some with complex procedural histories.  We’ve covered a number of developments in the litigation over the past two years.  A guest post here from Alex Geisel includes a summary of stabilizing braces and ATF’s decision to regulate the devices under the NFA.  In short, the Biden administration believed that a more detailed framework was necessary to prevent gunowners from circumventing the NFA’s restrictions on short-barreled rifles by converting pistols to be fired from the shoulder.  Reporting suggests that few pistol brace owners (there are likely tens of millions of braces in circulation) have actually registered pursuant to the NFA, with many owners instead joining groups challenging the rule in court.

To date, two circuit courts have entered decisions invalidating the rule.  In August 2023, the Fifth Circuit found, at the preliminary injunction stage, that the plaintiffs in Mock v. Garland were likely to succeed on their administrative-law claims because ATF had impermissibly altered its initial approach for determining whether a braced pistol qualifies as a short-barreled rifle by promulgating a vague, subjective test in the final rule that was not subject to proper notice and comment procedures.  The Fifth Circuit panel remanded with instructions for the district court to enter appropriate relief and specify which individuals would be shielded from the rule’s application.  The district judge in Mock subsequently granted the injunction and “enjoin[ed] enforcement of the Final Rule against the Firearms Policy Coalition, Inc. and all of its members.” In a subsequent decision in June 2024, the judge granted the plaintiffs’ motion for summary judgment.  That summary judgment decision is now on appeal to the Fifth Circuit and fully briefed. 

In August 2024, a split Eighth Circuit panel reached a similar result in FRAC v. Garland.  Quoting Mock in part, the court found that

[t]he Final Rule misses that mark. Rather, the Final Rule makes it “nigh impossible for a regular citizen to determine what constitutes a braced pistol, and . . . whether a specified braced pistol requires NFA registration.” For those reasons, the Final Rule is arbitrary and capricious.

As with the Fifth Circuit, the Eighth Circuit panel remanded to the district court for further proceedings to determine the proper scope of injunctive relief.  However, the district court instead granted a request by the FRAC plaintiffs to stay the litigation pending the Fifth Circuit’s merits decision in Mock.  The plaintiffs argued that a stay was appropriate because, otherwise, “the Court will expend substantial resources on summary judgment briefing as it considers the lawfulness of a rule that is already vacated and may never come back into force.”  While the government opposed a stay, the court ultimately found that “[b]asic principles of judicial economy, efficiency, and common sense strongly favor a stay” because the Fifth Circuit’s decision could well result in nationwide vacatur of the rule.  Therefore, the litigation is now channeled through the Fifth Circuit.

President Trump took office on January 20, and on February 7 issued an executive order directing his Attorney General Pam Bondi to evaluate all government regulations and positions for possible violations of the Second Amendment or infringements of gunowners’ rights.  The order directs the AG to submit a “proposed plan of action” within 30 days.  While no such report has yet been publicly issued, the government did file a motion in Mock asking to hold the appeal in abeyance for 60 days.  According to the government’s motion, which was not opposed and was granted on March 3, a 60-day pause will “conserve party and judicial resources and promote the efficient and orderly disposition of this appeal, including by ensuring that litigation is focused on enduring agency action and informed by the views of current agency leadership.”  Thus, we can expect a further filing from the government next week regarding the future of the pistol brace rule. 

The government has moved slowly and deliberately here—which perhaps makes sense, given that the litigation so far has tended to favor the challengers and the rule is currently on hold as to large groups of gunowners who own stabilizing braces.  As the view previously embraced by the Biden administration (broadly speaking, that heightened brace regulation is necessary to avoid statutory circumvention and protect public safety) is no longer represented in the litigation, the cases feel much more collaborative.  Take, for example, the unopposed motion for a lengthy abeyance in Mock.  The government would presumably not agree to such a motion if it believed the rule had substantial public safety benefits.

It thus seems likely the Trump administration will withdraw its appeal in the case, agree to the entry of an even broader injunction by the Fifth Circuit, or perhaps notify the court that it intends to repeal the rule.  One interesting aspect of the pistol-brace litigation is that the cases feel a lot closer to the recent ghost gun case (Bondi v. VanDerStok) than to the challenges to ATF’s bump-stock ban that were successful in Garland v. Cargill.  Cargill dealt with a relatively straightforward question about how bump stocks function and whether they fit under a statutory term—“machinegun”—with a somewhat detailed definition.  VanDerStok, by contrast, involved less precise statutory language and necessary judgment calls about what constitutes a “firearm” under the Gun Control Act and when an object is “readily convertible” into a firearm.  Indeed, Justice Gorsuch’s majority opinion in VanDerStok observed that “Congress’s definition of ‘firearm’ is a capacious one indeed.”  Thus, it was unavoidable that the agency would have to employ some kind of implementing framework.  Similarly, Mock and the other pistol-brace cases deal with a potentially-capacious statutory term (“short-barreled rifle”) and regulatory frameworks at least seemingly designed to capture objects that would allow gunowners to replicate the practical functions of that statutory term.  Given the outcome in VanDerStok, a majority of the current Supreme Court may support the stabilizing-brace rule as a permissible exercise of agency authority, if the case winds up before the justices.  If the government doesn’t want to risk that outcome, the easier course is to either accept entry of a final judgment by a lower court striking down the rule or begin the process of removing it from the Federal Register.