By Dave Workman
Editor-in-Chief
In a 2-1 opinion, a U.S. Fifth Circuit Court of Appeals panel has handed the Biden administration and Bureau of Alcohol, Tobacco, Firearms and Explosives a significant defeat by ruling that the “Final Rule” on pistol braces “must be set aside as unlawful” because its adoption violated the Administrative Procedure Act (APA).
The case is known as Mock v. Garland, and this ruling was welcome news for the Second Amendment Foundation (SAF), which has a similar challenge pending in the same circuit. SAF already won a preliminary injunction in that case.
The Mock challenge was brought by the Firearms Policy Coalition, a Nevada-based group that often joins with SAF in gun law challenges. FPC is represented by attorney Cody Wisniewski.
The 40-page ruling was authored by Fifth Circuit Judge Jerry Smith. A concurring opinion was written by Circuit Judge Don R. Willett, with a dissenting opinion by Judge Stephen A. Higginson.
A report in Ammoland News describes the ruling as a “devastating blow.”
According to Reuters, ATF finalized a rule on pistol braces in January “without giving the public a meaningful chance to comment on it.”
Writing for the majority, Judge Smith stated, “The ATF incorrectly maintains that the Final Rule is merely interpretive, not legislative, and thus not subject to the logical-outgrowth test. 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.”
Judge Smith went on to explain how the Final Rule had little resemblance to the Proposed Rule published last year, which garnered thousands upon thousands of negative responses from the public. He said ATF’s adoption of the Final Rule translates to “a rug pull on the public.”
The ruling detailed the history of arm brace classification by the ATF. As recently as 2019, the agency indicated no problems with arm brace usage, but three years later, under a Biden administration, things suddenly changed and now the use of the devices suddenly transforms pistols into short-barreled rifles.
The ruling also alludes to “the prevalence of Youtubers’ demonstrating the likely use of the weapon.”
Indeed, videos found on social media have demonstrated that some arm brace users have shown the braces being used like a rifle stock, for which they were not designed.
According to SAF, the ruling is welcome news as it pursues its own challenge of the ATF “Final Rule.”
“This is a significant win for gun rights,” noted SAF founder and Executive Vice President Alan M. Gottlieb, “because the arguments in this case are essentially the same as we are making in our own challenge of the pistol brace rule.”
SAF’s case is known as SAF, et.al. v. ATF, et.al. and is joined by Rainier Arms, LLC and two private citizens, Samuel Walley and William Green. They are represented by attorney Chad Flores at Flores Law in Houston, Texas. SAF has already won a preliminary injunction in that case.
“This ruling,” said SAF Executive Director Adam Kraut, “is a serious setback for the Biden administration’s gun control agenda. As the court noted, the Final Rule was not the logical outgrowth of the original proposed rule, and therefore must be set aside. Thanks to this ruling, we can jump start our own case with very good prospects for success.”
