Late Wednesday, a Texas-based Federal District Court judge issued a nationwide stay preventing the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) from enforcing its rule on pistols equipped with stabilizing devices (2021R-08F).
The case, Britto v. ATF, challenged the “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces'” rule. The ATF created the regulation after an executive order by President Joe Biden directing the Bureau to deal with pistol braces. The ATF would reverse years of classification letters and revoke previous determinations issued to brace manufacturers.
The Britto case challenged the rule, claiming the ATF pistol brace rule violated the Administrative Procedures Act (APA). The plaintiffs felt the final rule wasn’t a logical outgrowth of the proposed rule. The proposed rule had a point system (ATF Form 4999) that helped individuals determine if their firearm would be considered a braced pistol or short-barreled rifle (SBR). Most of the comments during the public comment period addressed concerns with the form.
When the final rule was unveiled, the point system was removed. The ATF considered all braced pistols on the market to be SBRs and subject to the National Firearms Act of 1934 (NFA). Gun owners had four choices.
The first choice was registering their firearm with the ATF per NFA regulations. Gun owners would have to provide pictures of the firearm’s markings, give the government fingerprints, and submit passport pictures to the ATF. Some states, such as California, do not permit NFA items.
The second choice is for gun owners to replace the barrel with a barrel over 16 inches. This change would make the firearm a rifle regulated under the Gun Control Act of 1968 (GCA). It would mean that the gun owner would have to spend money on expensive rifle parts to bring their firearm into compliance. The third choice is that the gun owner could opt to remove the brace and render it non-reusable, effectively destroying the brace.
The final choice for the gun owner is to turn the firearm into the ATF. Many in the gun world saw this as a forced confiscation by a hostile anti-gun government agency. Firearms are not cheap, meaning that gun owners might be out several hundred to several thousand dollars. If the gun owner chose not to make any of these choices and the ATF caught them, they could be charged with a felony punishable by ten years in prison. This punishment is the same as owning an unregistered machinegun.
Several factors must be met for a plaintiff to obtain an injunction. The first is the likelihood to succeed on the merits of the case. District Court Judge Matthew Kacsmaryk of the Northern District of Texas, Amarillo Division, ruled the plaintiffs had a high likelihood of success. The Judge leaned heavily on the Mock v. Garland ruling.
In that case, the Firearms Policy Coalition (FPC) claimed that the ATF overstepped the boundaries set by the APA. The Fifth Circuit Court of Appeals agreed with the plaintiffs in the case. Judge Kacsmaryk referenced that decision in determining the likelihood of success by the plaintiffs in Britto. He came to the same conclusion as the Fifth Circuit.
“Given the Fifth Circuit’s holding, this Court recognizes that the Rule ‘was not a logical outgrowth of the Proposed Rule’ and ‘must be set aside as unlawful.’ That holding alone establishes that Plaintiffs’ have demonstrated, a fortiori, an actual success on the merits of their APA challenge to the … Rule,'” The decision read.
The second factor is whether the plaintiffs would suffer irreparable harm without an injunction. Gabriel A. Tauscher, one of the plaintiffs and a Marine, has a partially paralyzed arm due to a combat injury. The creation of the original stabilizing brace aimed to assist a veteran who suffered an injury in combat. Much like that vet, Mr. Tauscher couldn’t shoot his AR-15 pistol without the help of a stabilizing brace. Other gun owners would also suffer harm because the rule doesn’t have a grandfather clause. The judge quoted the judge in the Gun Owners of America (GOA) case challenging the rule.
“‘Under the Final Rule, compliance will almost always come at a cost. When the Fifth Circuit sent Mock back to the district court, the court evaluated the irreparable harm, if any, that several private plaintiffs in the case would suffer. Because the Mock plaintiffs owned firearms and stabilizing braces that the Final Rule would classify as an SBR, the plaintiffs had ‘no trouble establishing a substantial threat of irreparable harm in the form of nonrecoverable compliance costs.’ The same is true here,” the judge wrote.
The final step to get an injunction is to prove that an injunction is in the public interest. The judge found that since the rule is not a logical outgrowth of the APA, it is most likely illegal. The government cannot use public interest to defend an unlawful rule. Therefore, the public interest falls on the side of the plaintiffs.
Because of these reasons, Judge Kacsmaryk stayed the rule in its entirety. The ATF is likely to appeal the decision. FPC, GOA, and SAF members were the only ones to whom the previous injunctions applied. Now, protection extends to everyone in the nation.
Britto v ATF Motion for Prelim Injunction by AmmoLand Shooting Sports News on Scribd
About John Crump
SBR’s, suppressors and machine guns must all be removed from the unconstitutional NFA, as ALL ARE IN COMMON USE, owned in excess of 140,000, the number Caetano declared represented common use for stun guns. Since in common use, they are not dangerous & unusual, and therefore NFA doesn’t apply. GCA and nfa are garbage and must be invalidated under Bruen.
The NFA and GCA were invalidated on December 15th, 1791 by the Bill of Rights and the 2nd Amendment. ANYONE in an elected or appointed position of government are part of high crimes against WE, The People, their oaths of office and purpose WE put them in government.
The NFA must be removed from existence!
in fact, all “gun laws” that infringe the possession by lawful citizens, be they federal or state, are unconstitutional. WHY? In a constitutional republic at the common law, all government actions are fully restricted to only those topics so allowed as a privilege. What is not specifically allowed, is absolutely denied. SEE: Federalist 49 by MADISON–constitutional limitations. No privilege——–NO LAW, NO GOVERNMENT ACTION THEREON. = Now, even if allowed to act upon firearm possession by the lawful, the US Supreme Court in MARTELL, 222 US 225, commands, that all laws to be enacted must be based upon documented “concrete conditions”… Read more »
Or die because they refuse to know it. We NEED the common law back to eliminate the statutory Babylonian crap that we have in place now. IE Admiralty. Because under common law, there ARE NO LAWS unless there are VICTIMS.
But, but, but, of course they are dangerous and unusual! Ask Chairman Xiden! He’ll set you straight. Of course he can’t answer this question…Gee Chairman…do they automatically go POOF, no longer dangerous and unusual if you have a paid for tax stamp on them! It’s MAGIC! One second they are dangerous and unusual and then the second the ATF says your tax stamp is issued they become fine and dandy!
atf needs to be dumped with nfa
YES THEY ARE DANGEROUS AND UNUSUAL! HOWEVER, the minute you pay that $200 and register them…POOF…they are fine. Nothing dangerous and unusual about them from the day forward! It’s MAGIC! Like those Gun Free Zones! Those have magical powers created by unicorns that just plain will not allow any bad people to enter the area with ill intentions with a GUN! The list is endless when it comes to the lack of common sense by the gun prohibitionists.
Is there really a UNIVERSAL Get Out Of Jail For Free Card?? Well, yes, there IS such a thing! But it is kept well hidden and is known about by only a very few though, due to various reasons. The main one, is the populace is kept ignorant, dumbed down, as some like to say, via the public fool system. No one is taught real history or how to think about things anymore. Virtually no one knows what logic is or how to use it. Nearly everyone is taught only the mantra of “go along to get along”. Another one… Read more »
FINALLY! Thank you!
Prolly going to steal that and post it other places to get max exposure. I know a few such hubs. Will give you full credit. Nicely done and thank you. o7
How does one privately own a legal system?
That’s easy WB. You just buy it. We have the best politicians that money can buy!
Are you sure that they are not more in the nature of a rental?
It’s owned by the British Crown, allegedly. It’s not, really, but enough people think and believe that it is for the system to work, for now. But if you use the rules and laws of the legal system against itself, well, it has no way to counter that. Crime is a bad thing, right? So when you expose the crimes of the legal system, you instantly take away ALL of its pretense of power and authority, because no criminals have any amount of legitimate power or authority over any man, woman or child. Or did that get changed, and no… Read more »
In Arizona we have a system where all judges must be reelected. I vote NO on all of them because, I’m tired of seeing zombie transients on street corners knowing the drug dealers who sell this poison are getting let off easy. Because a judge gave a female child molester probation saying she was too pretty to go to jail. Because illegal aliens are driving our streets without a license or insurance and nothing is done to them in court after an accident. They should be deported! You get the gist of what I’m saying. If every judge was not… Read more »
hot damn, i know what i want santa to bring me this year.
So, as expected, all of us that destroyed and disposed of our braces are now just out those expenses. All tax dollars spent on legal and administrative fees related to creating the rule, defending the rule and having the rule destroyed are just gone with no recompense. I had nice braces which I destroyed to comply. GRRRRRR.
That’s the problem with complying with arbitrary and unconstitutional rules invented by unelected bureaucrats who think they possess the force of law. Every one of my braces are still attached as designed, and also with so called high cap. magazines, deemed “illegal” here in WA ST. Not gonna comply. Nope, not gonna do it. Wouldn’t be prudent.
Same here. Right choice in hindsight.
As if the piece of plastic attached as a “stock” should matter in the least bit. As if the length of the barrel should matter the least bit…
Why would anyone dispose of or destroy the brace? It’s only an issue under ATF BS rules if you have your FIREARM configured a certain way.
Maybe you should grow up from being a pussy cat into a lion.
Something I never understood about the Brace Rule. If you chose the option to replace the pistol barrel with a 16” one and add a stock, were you supposed to destroy the short barrel/brace?
If you replace shorter barrel with 16” barrel, there was no additional requirement to remove pistol brace.
The ONLY thing that you need to understand, is that the lunatics are now running the asylum!! Now that we know the entire legal system is nothing but a criminal cabal, why do so many still run to it like people who have been abused cling to their abuser(s)? Do they really crave that kind of “attention” and cannot go a day without it?
paraphrasing batfe, they say that you have to destroy the brace or remove it from your possession because you could put it back together.
stupid, but they are a administrative agency, right?
Cake that looks like a knife or gun, is not a knife or gun. Federal Court panel used as analogy to telling ATF they have no authority to rewrite GCA.
The brace item is just a stock end that was classified by ATF to be used in a certain type of configuration.
There’s no need to destroy or dispose of such stock end if you re-configure your firearm to comply with the ATF garbage.
I’m pretty sure that an embarrassing, but not injurious boating accident will do nicely.
I do think there’s confusion, and ATF is to blame.
The brace itself is just a part. The ATF rule is based on firearm configuration.
Why people are detroying or disposing of parts is bewildering.
Up with the good guys.
Down with the bad guys.
This Federal government via its agencies has morphed into a MONSTER.
Now that the DEMOCRATIC PARTY has weaponized the ATF, the FBI, and usurped power anywhere else it can be found, we are literally left holding the bull by the horns.
Should have never been made possible.The Founding Fathers gave it no such power.
HAPPY 248 BIRTHDAY BROTHER and SISTER MARINES.
Also this, another court just threw out China Joe’s ghost gun ban; US appeals court calls Biden’s ‘ghost gun’ limits unlawful (msn.com)
There’s law issue here. SCOTUS put a pro-ATF stay for the ATF BS crap. The only way it get’s resolved is when the issue comes back to SCOTUS to either reconcile there, or they balk and allow lower court rulings to stand, which then removes the stay SCOTUS had put in.
To come into compliance let’s have every ATF agent submit to We the People the fingerprints of every cartel member who touched any of the guns the ATF has run into Mexico. OR, if they cannot get these required fingerprints themselves they can hire a Mexican cartel associate for a mere $750,000 per agent to negotiate with the cartel members to see if he can get the cartel to submit their fingerprints after they have confessed to having illegal guns. OR if all, as in 100% of the cartel fingerprints, can not be obtained, the ATF agents and all ATF… Read more »
Another thing that is stupid about the anti brace rule was that you had to destroy the brace so you could never attach it to the pistol again or you would be guilty of constructive possession. If I have an AR rifle too and I was inclined towards criminal activity. I could swap the rifle lower onto the pistol upper in about one minute to create an actual short barrel rifle. Wouldn’t that be ‘constructive possession’ also?
100% illegal. ATF would have had better standing if it offered to do buyback. If say you swapped from what the ATF BS calls your braced pistol item “an ATF SBR” over to a Title-1 firearm, you could still use that “brace” stock as a regular stock per Title-1 rules. There’s no reason for you to destroy or dispose of a “brace” tail piece! Re-read that again. If the worry was “constructive possession”, then you would need to be carrying both the alledged problem part along with your firearm, and the swap over would need to be easy and simple.… Read more »
Bout time
Not sure how this ruling actually mingles with the pro-ATF stay the Supreme Court handed down just recently. The S.C. stay allows ATF to keep doing the illegal ATF crap until the issue is reconciled in the courts, which likely ends back at S.C. as a request to get on docket. The S.C. might balk and relinquish it’s stay ruling, or, S.C. might take up the issue. I suspect S.C. will evaluate the probability of ATF prevailing (which is low) and will balk on taking up the case and allow the lower appeals court decision to stand. thereby making all… Read more »