A federal judge has granted injunctive relief to the plaintiffs in Mock v. Garland, the leading challenge to the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ (ATF) Final Rule on Stabilizing Braces, aka pistol braces. Judge Reed O’Connor penned a scathing indictment of the pistol brace rule, the methods by which it was promulgated, and how it violates the plaintiffs’ Second Amendment rights.
The preliminary injunction only applies to the plaintiffs, their families, employees, and members, and is not applicable beyond those categories. But its issuance indicates the 5th Circuit Court of Appeals’ belief that the plaintiffs will succeed on the merits of their claim that the Final Rule violates the Administrative Procedures Act (APA). The 5th Circuit instructed Judge O’Connor to rule in light of that belief. But the appellate court placed “no limitation on the matters that [the Court] may address on remand” and “no indication of what decisions it should reach.” Judge O’Connor took full advantage of that freedom, which we shall briefly examine.
The 5th Circuit will now hear the case on appeal. The ATF will not be able to enforce the pistol brace rule against the protected groups as that case moves forward. O’Connor’s decision not to issue the nationwide injunction sought by the plaintiffs is disappointing, but understandable. His analysis strongly criticizes the pistol brace rule, how it was enacted, and even opens a possible challenge to the National Firearms Act (NFA) itself. Let’s look briefly at the decision and talk about what it means going forward.
A Little History of the Pistol Brace Rule
You may recall that Judge O’Connor previously declined to grant a preliminary injunction in this case, writing that the plaintiffs failed to demonstrate their likelihood of success at trial. Second Amendment advocates were disappointed, but O’Connor noted that the plaintiffs may yet win once all the evidence came out in court. And that was the reason for his denial. He hadn’t yet been presented with all the evidence. The plaintiffs appealed to the 5th Circuit, which reversed O’Connor’s ruling regarding the APA and remanded the case back to him with instructions to rule on the motion to enjoin, based on that finding.
We wrote at the time that we believed O’Connor’s initial denial was a blessing in disguise since it told the plaintiffs what evidence they needed for a successful motion to enjoin. Based on Judge O’Connor’s latest ruling, we seem to have been correct: The new ruling states that “Following the parties’ completion of supplemental briefing, and additional briefing from Palmetto State Armory, LLC (“PSA”), the Firearms Regulatory Accountability Coalition, Inc. (“FRAC”), and NST Global, LLC (d/b/a SB Tactical) (“SB Tactical”) as amici curiae, Plaintiffs’ motion is now ripe for the Court’s review on remand.” Based on what follows, it’s difficult to conclude that Judge O’Connor didn’t do the plaintiffs a favor by denying their April motion.
The plaintiffs, William T. Mock, Christopher Lewis, the Firearms Policy Coalition (FPC), and Maxim Defense Industries, challenged the Final Rule on the following grounds:
- That it violates the Second Amendment.
- That it violates the First Amendment by chilling speech in terms of advertising.
- That it violates due process as protected by the Fifth Amendment.
- That it violates the Constitution’s structural provisions.
- That it violates the Administrative Procedures Act (APA) because it exceeds ATF’s authority.
- “That it violates the APA’s procedural requirements because it was not a logical outgrowth of the proposed rule.”
Judge O’Connor’s Analysis
Mock and Lewis
Judge O’Connor’s decision runs for 38 pages, so we’ll just hit the high points. Mock and Lewis were granted injunctive relief since their possession of braced pistols, which the ATF unilaterally reclassified as short-barreled rifles (SBR), is well documented in court papers. Possession of those weapons, were the men subject to enforcement, would constitute NFA violations carrying a maximum of 10 years in prison and a $100,000 fine for each violation.
The ATF would certainly target the two men since they have essentially incriminated themselves by way of the current lawsuit. O’Connor’s preliminary injunction prevents that, at least until the case is ultimately decided. If Mock and Lewis lose in the end, they will have to destroy or get rid of their braced pistols beforehand or face prosecution.
An interesting part of O’Connor’s analysis regarding Mock and Lewis addressed how pistol braces make such weapons safer, contrary to the ATF’s position, which claims that braces make those weapons more dangerous. “The attached braces,” O’Connor wrote, “foster greater stability, control, and precision in the firing of Plaintiff’s pistols so as to enable them to more easily and comfortably accomplish the narrow end goals of self-defense – that is, to deter or neutralize life-threatening perpetrators, preserve innocent life, and as best as possible prevent or mitigate the degree of bodily injury suffered by others. In so enabling a more proficient and exacting performance of self-defense, the attributes provided by the stabilizing braces to Plaintiffs’ lawfully owned defense weapons significantly lessen the cause for lethal and irreversible misfire, friendly fire, or other collateral damage, as well as the probability of being outmatched or falling victim to dangerous assailants.”
This statement flies completely in the face of the testimony given by gun control advocates before Congress earlier this year. Those of us in the gun world understand that greater control means greater potential accuracy. Greater accuracy leads to hitting one’s target while minimizing the danger to surrounding people and property. That all adds up to improved safety conditions for everyone but the assailant. It’s one more indicator that gun control isn’t about “gun safety” at all.
“Weapon in Common Use”
Judge O’Connor opens this section by writing, “The Second Amendment prohibits government from infringing upon an individual’s right to keep and bear arms for self-defense… This protects an individual’s ‘possession and use of weapons that are in common use at the [present] time.’” “Conversely, protection is not extended to possession or use of ‘dangerous and unusual weapons.’” The quotes are from the landmark Heller decision.
“A weapon is in ‘common use,’’ O’Connor continues, “rather than ‘dangerous and unusual’ if it is ‘commonly possessed by law-abiding citizens for lawful purposes today.” (Emphasis in original). Based on this definition, the judge concluded that braced pistols subject to the Final Rule are indeed “in common use today.”
He further asserts that the braced pistols in Mock’s and Lewis’ possession are “already deemed to be among the weapons ‘most commonly used today for [lawful] self-defense,’” saying that statement is “undisputed.” O’Connor cites earlier proceedings as affirming that “ATF agrees that the weapons here are lawfully bearable pistols absent a rearward attachment… These pistols are therefore lawful.” (Emphasis in original).
He continues, writing that “A stabilizing brace does not somehow alter that status and effectively strip these pistols of their Second Amendment protection.” He then cites ATF’s own regulatory analysis as proof that the agency’s categorizing braced pistols as “dangerous and unusual” is flawed. ATF estimates that Americans own three to seven million braced pistols, “with a fifty percentile of 5 million.” Using other cases, O’Connor shows how those numbers easily fall within the definition of “in common use,” and thus protected under the Second Amendment.
Finally, Judge O’Connor noted that, by the ATF’s own “conservative” estimates, no more than 8% of braced pistol owners complied with the Final Rule’s registration requirement. We’ll just leave that right there.
“Presumptively Protected Conduct”
Judge O’Connor then refers to the Bruen Decision’s assertion that “When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct from the regulation at issue.” Without going into great detail in an already lengthy article, O’Connor affirmed that “the Second Amendment ‘presumptively guarantees’ Plaintiff’s Mock and Lewis the right to keep and bear braced (and unbraced) pistol arms at home and in public for general self-defense use.” But that’s not all.
O’Connor also wrote that “The Second Amendment also presumptively protects the FPC members’ [Mock and Lewis] proposed course of conduct insofar as it involves ‘making common, safety-improving modifications to otherwise lawfully bearable arms’ for the purpose of enhancing the performance of self-defense… The conduct of acquiring, attaching, and maintaining rearward attachments, such as a stabilizing brace, serves to ‘make the pistol more stable and [thus] the user more accurate.’”
O’Connor also cited the undisputed history of Americans improving lawfully owned firearms as far back as the American Revolution. He then equates gun owners attaching pistol braces to improve a lawfully owned firearm’s performance to that tradition, as specified in Bruen. Tying braces and “home gunsmithing” to Bruen is a big deal and may bear favorably on other cases, such as those challenging the Frames and Receivers Rule.
But O’Connor’s wording bears a closer look. Addressing this history, and the purpose of the protected modifications, he wrote that “Users directly advance these fundamental ends of self-defense when they modify ‘lawfully bearable pistols’ (emphasis in original) with a ‘rearward attachment – whether as a brace or a stock.’”
Did you catch that? “A brace or a stock.” That wording was taken from earlier language expressed in this case. It is now part of a legal decision. I’m no lawyer, but it appears to me that stocks on pistols, essentially SBRs, may now be available for legal challenges. If so, there’s one more crack in the NFA’s already vulnerable armor. We’ll have to see how that plays out.
Citing the 5th Circuit’s invalidation of the Final Rule due to its violation of the APA, Judge O’Connor granted injunctive relief to Mock, Lewis, and their families. That relief was also granted to FPC, its employees and members, and Maxim Defense, its employees, and its distributors and customers.
As noted, Judge O’Connor declined to grant a nationwide injunction. Again, I’m no lawyer, but I’ve read that not expanding the injunctive relief keeps the case simpler and guards against unforeseen outside variables blowing the whole thing out of proportion. Narrow rulings tend to be the soundest rulings, at least at this stage. There will certainly be an appeal. We’ll keep you updated on this case’s progress.