A Bad Week of Losing for Biden’s “AFT”

Opinion

Isn’t schadenfreude wonderful?

Last week was bad for Joe Biden’s out-of-control Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). Courts, particularly in the 5th Circuit Court of Appeals, are taking a very dim view of Biden’s executive fiats on guns, striking down two in as many days.

Last Thursday, a federal district court in the 5th Circuit Court of Appeals vacated – nationwide – Biden‘s attempt to reclassify nearly all AR-15-style pistols using stabilizing braces (PSBs) as “short-barreled rifles” (SBRs), which are tightly regulated by the 1934 National Firearms Act (NFA).

You may recall that in recent years, the ATF had repeatedly ruled that PSBs, originally developed to help wounded warriors shoot relatively heavy AR-15-style pistols, were not shoulder stocks and therefore didn’t change the classification of guns on which they were installed.

But in January of 2022, the ATF did an about-face, giving owners of the devices until May to surrender, destroy or modify the guns, or else submit an electronic Form 1 to register them as SBRs, subjecting them to all of the legal restrictions applicable to SBRs.

Thursday’s ruling in Mock v. Garland was the second blow to Final Rule 2021R-08F, named “Factoring Criteria for Firearms with Attached ‘Stabilizing Braces.’” Previously, the 5th Circuit had issued a nationwide injunction on the rule, making it exceedingly unlikely the 5th would overturn the decision on appeal.

It also appears unlikely that the Supreme Court will overturn the ATF defeat.

The issue was not the constitutionality of the rule but rather how it was enacted. The decision, rendered by U.S. District Judge Reed O’Connor, determined the PSB rule to be in violation of the Administrative Procedures Act (APA) due to its arbitrary criteria and the fact that the final rule bore no resemblance to the rule earlier issued for comments as a Notice of Proposed Rulemaking.

Said O’Connor:

• “…the Court finds that the Final Rule’s six-factor test is so impermissibly vague that it ‘provides no meaningful clarity about what constitutes an impermissible stabilizing brace,’ and, thus, that ‘it is nigh impossible for a regular citizen to determine what constitutes a braced pistol’ that “requires NFA registration.”

On the very next day, the U.S. Supreme Court struck down the ATF-mandated ban on bump stocks, which had also implemented by ATF rulemaking. Bump stocks effectively make it possible to rapidly articulate triggers of semi-automatic firearms, but do not make them “machine guns” as defined in the NFA.

Essentially, the ATF tried to do an end-run around Congress by unilaterally changing the definition of “machine gun” in violation of Article I, Section 1 of the Constitution, which delegates legislative powers to Congress.

In the 6-3 decision on “Garland v. Cargill,” Justice Clarence Thomas wrote the scathing majority opinion, as he did in the seminal NYSRPA v. Bruen decision, saying:

• “Semiautomatic firearms, which require shooters to reengage the trigger for every shot, are not machineguns. This case asks whether a bump stock—an accessory for a semi-automatic rifle that allows the shooter to rapidly reengage the trigger (and therefore achieve a high rate of fire)—converts the rifle into a ‘machinegun.’ We hold that it does not.”

Bear in mind all of that may change quite soon, as cases work their way through the through federal court system (or don’t) and, finally, the US Supreme Court, or else are introduced as legislation in Congress.

But with two successive slaps to the face, you can bet some heads will roll at Biden’s White House “Office of Gun Violence Prevention.” Schadenfreude, …baby.

Like a dead rattlesnake, even vacated rules can bite. Many who took advantage of the ATF’s “amnesty” and registered their AR pistol as an SBR saw it as an opportunity to replace stabilizing braces with more efficient shoulder stocks because, after all, now it’s a rifle, right?

Wrong. On the back of the very last page of the Form-1 you filled out electronically, when the ATF so generously offered to waive the $200 tax stamp which would ordinarily be levied to register an SBR, you will find a little section that says “Approval conditions,” containing the words “Pursuant to ATF Final Rule 2021R-08F.”

Because Rule 2021R-08F has been vacated nationwide, your Form 1 is likely null and void, meaning that if you put a stock on your formerly braced pistol, you are now in possession of an illegal short-barreled rifle. Pay $250,000 and spend 10 years in federal prison.

And if I were you, I would keep your probably-invalid Form 1, if you obtained one. Given that PSBs were not, themselves, ruled unconstitutional, it’s entirely plausible the ATF will try again with a new rule, particularly if Biden is re-elected.

I’m not a lawyer, and nothing herein constitutes legal advice, of course, but I also strongly suggest you do not exceed the limitations placed by ATF on braced pistols before promulgating the now-invalid rule, including (but not necessarily limited to) the following:

• DO NOT alter a stabilizing brace in any way (e.g. removing Velcro straps). Doing so will result in the ATF saying you made an unregistered SBR.
• DO NOT exceed a length of “pull” from trigger to end of brace of 13.5” or more. (In truth, “length of pull” only legally exists with rifles, but the ATF tried to prosecute an Ohio man on this one, even though it never published the requirement.)
• DO NOT place a vertical foregrip on the gun, which would make it an “any other weapon” also subject to the NFA.
• Place the brace to your shoulder at your own risk: In earlier rules, which it later reversed, the ATF once claimed that shouldering the brace “redesigned” it into a shoulder stock, making your gun an illegal SBR. Now? Who knows?

The next gun-related case to be decided by SCOTUS will be United States v. Rahimi, testing the constitutionality of the federal prohibition on gun possession by those under domestic violence restraining orders. Because Zackey Rahimi is a serial violent offender, SCOTUS is more likely to rule against us when, in truth, many of the people are deprived of their Second Amendment rights by domestic restraining orders, often in ex parte hearings where they not only can’t defend themselves, might not even know the hearing is taking place.

Another decision soon to come down from SCOTUS is Loper Bright Enterprises v. Raimondo on “Chevron deference,” which essentially gives alphabet agencies the benefit of the doubt in challenges to the validity of regulatory rulemaking. If, as expected, the conservative Court strikes down Chevron deference, the ATF is pretty much screwed in its attempt to ban guns without passing legislation.

Almost certainly, you can now expect gun control groups to push for state-level restrictions on both stabilizing braces and bump stocks, particularly given that neither were determined to be unconstitutional under the Second Amendment.

Author’s note: Given the fluidity of changing gun laws, stay alert to changes by subscribing to my blog and to Grass Roots North Carolina legislative alerts, which you can do by going to www.GRNC.org and signing up for alerts on the right side of the home page. No membership is required to receive alerts, and GRNC vows to protect your privacy.

Another Take on the Case:

About Paul Valone

Author F. Paul Valone has been kicking leftist tail for twenty-eight years. Alarmed by the U.S. House passage of the “assault weapon” ban in 1994, he decided to take action. Finding no suitable organization, he organized a rally leading to the creation of a 501(c)(4) organization, Grass Roots North Carolina (GRNC), which remains North Carolina’s primary and most successful gun rights group to this day.