Federal Appeals Court Finds ATF Pistol Brace Rule Is Likely Unlawful: ‘Impossible For A Regular Citizen’

A federal appeals court found Monday that a Biden administration rule reclassifying braced pistols as short barrel rifles, which would cause gun owners who fail to comply with the new requirements to face the threat of felony charges, is likely unlawful.

The Fifth Circuit determined 2-1 that the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) pistol brace rule likely violates the Administrative Procedure Act. The Firearms Policy Coalition sued in January after the rule was announced.

“The Final Rule affects individual rights, speaks with the force of law, and significantly implicates private interests,” Judge Jerry E. Smith, a Reagan appointee, wrote in the opinion. “Thus, it is legislative in character.”

Smith wrote that the rule makes it “nigh impossible for a regular citizen to determine what constitutes a braced pistol” and whether “a specified brace pistol requires NFA registration.”

The three-judge panel sent the case back to U.S. District Court for the Northern District of Texas Judge Reed O’Connor to consider an order blocking enforcement of the rule while the case proceeds.

“Said in its simplest terms, the Fifth Circuit just indicated that the Plaintiffs–Firearms Policy Coalition, Maxim Defense, and FPC’s individual members–are likely to defeat ATF’s pistol brace rule when the merits of this case are finally heard,” Cody J. Wisniewski, FPC Action Foundation (FPCAF) General Counsel, said in a statement. “This is a huge win for peaceable gun owners across the nation, a huge win for FPC’s members, and yet another massive defeat for ATF and this administration’s gun control agenda.”

In a concurring opinion, Judge Don Willett, a Trump appointee, wrote that adding a brace or stock to a pistol is likely “protected Second Amendment ‘conduct.’”

“Rearward attachments, besides making a pistol less concealable, improve a pistol’s stability, and thus a user’s accuracy. Accuracy, in turn, promotes safety,” he wrote. “Even for attachments that convert a pistol into a rifle under the statutes, ATF has not identified any historical tradition of requiring ordinary citizens to endure a lengthy, costly, and discretionary approval process just to use accessories that make an otherwise lawful weapon safer.”

The Fifth Circuit previously issued a preliminary injunction blocking the rule from being enforced against members of the gun group who sued, which it maintained on Monday for 60 days or until the district court makes its ruling.