Not only is ATF’s Pistol Brace Rule unconstitutional but so are the actions of the ATF.
On August 1, 2023, a three-judge panel for the United States Court of Appeals for the Fifth Circuit issued an order which found the “Final Rule” of the ATF concerning pistol braces to be unlawful. Part of the “Final Rule” claimed pistol braces, combined with legal pistols, made the combination “short barreled rifles” subject to the regulatory requirements of the National Firearms Act (NFA). This contradicted years of previous findings by the ATF. The three-judge panel sent the case back to the trial court for a ruling on a preliminary injunction and on what injunctive relief is called for. The case is Mock v Garland.
The three-judge panel decision was split. Two judges, Don R Willett and Jerry E Smith, were in the majority. Judge Stephen A Higginson dissented. The decision is one of several involving the controversial “Final Rule” of the Biden administration ATF. It may be the Biden Administration will ask the Fifth Circuit to hear the case en banc, or the Biden administration may appeal the decision to the Supreme Court. Of particular interest is the concurrence written by Judge Don Willett. Judge Willet went on record as opining the regulation/law which defines pistols with shoulder stocks as “short barreled rifles” may well be unconstitutional by itself, without the regulatory mismanagement of the ATF in this case. From the order of the Court, page 41:
Don R. Willett,Circuit Judge, concurring:
I join the majority’s careful opinion in full measure. I write separately because I suspect that the Final Rule would likely fail constitutional muster even if it were a logical outgrowth of the worksheet idea that preceded it.
By Dean Weingarten
