Fifth Circuit hears challenge of ATF crackdown on braced pistols

(CN) — Gun rights advocates urged a federal appellate panel Thursday to block enforcement of a Bureau of Alcohol, Tobacco, Firearms and Explosives rule requiring registration of pistols equipped to fire like rifles that they say is vague and ambiguous.

The Biden administration implemented the rule on Jan. 31 after mass shooters in Colorado and Dayton, Ohio, used AR-15-style pistols equipped with arm-stabilizing braces to kill 19 people. It immediately took effect for firearms dealers, forcing them to register such pistols before selling them.

Firearms enthusiasts and brace manufacturers contend they help people with disabilities or limited strength fire heavy pistols with one hand without enabling firing from the shoulder.

Yet the government says individuals and dealers had been skirting the rules by attaching components they labeled stabilizing braces to pistols, though the parts were functionally identical to shoulder stocks and turned the weapons into short-barreled rifles.

The ATF set May 31 as the deadline for individual owners to register the guns, destroy them, surrender them to their local ATF offices or remove the braces so they can't get reattached. Under the rule, they must also pay a $200 tax per weapon if not registered before the deadline.

The potential penalties for noncompliance are tough: a fine of up to $10,000 and a maximum 10 years in prison.

Republicans in Congress tried to repeal the rule. But their bill died with a 50-49 party-line vote in the Democrat-majority Senate on June 22. Still, opponents have gained traction in court challenges.

At least seven lawsuits have been filed challenging the rule, according to Courthouse News’ database, including one brought by 25 Republican-led states.

A Fifth Circuit panel on May 23 granted the Firearms Policy Coalition, gun maker Maxim Defense Industries and two owners of braced pistols an injunction against the rule pending appeal. But the injunction is limited to those litigants, the coalition’s members, Maxim’s customers and family members of the two pistol owners.

And the challengers say U.S. District Judge Reed O'Connor, presiding in Fort Worth, got it wrong when he denied them a preliminary injunction after finding they were unlikely to win on the merits.

Their attorney Erik Jaffe, a partner in the Washington firm Schaerr Jaffe, pushed for a nationwide injunction in oral arguments Thursday before a different panel of the New-Orleans-based Fifth Circuit considering the case on the merits.

In a 90-minute hearing, Jaffe argued the rule violates the right to bear arms enshrined in the Second Amendment because “a braced pistol is plainly a bearable arm.”

U.S. Circuit Judge Stephen Higginson, an Obama appointee, asked him to respond to the government’s assertions the Second Amendment only covers arms typically possessed by law-abiding citizens, and short-barreled rifles like sawed-off shotguns, which the Supreme Court has determined are “dangerous and unusual weapons,” are not protected.

In addition to sawed-off shotguns and short-barreled rifles, the National Firearms Act of 1934 restricts the possession and sale of machine guns, silencers and grenades.

Jaffe noted the ATF itself estimates there are 3 million handguns with stabilizing braces in circulation in the U.S.

“So they are clearly in common use by lawful citizens,” he said.

He argued sawed-off shotguns are wildly inaccurate when fired, whereas braces make pistols more stable and accurate. Therefore, Jaffe said, the ATF’s new rule is nonsensical. But he acknowledged that added stability is dangerous if “the wrong person” uses the gun.

“The notion that a more accurate and more controllable firearm can be banned precisely because it’s a better firearm gets it exactly backward,” he said.

The challengers also claim the new rule is vague because in the 10 years before it took effect, the ATF resolved manufacturers’ uncertainties about whether their braced pistols qualified as short-barreled rifles by reviewing their weapons and issuing them clarification letters.

Jaffe said people bought them assuming they were legal based on the ATF’s letters. But its new rule gives the agency discretion to revoke firearm approval and force owners to comply with its licensing regime.

Higginson asked Justice Department attorney Sean Janda how Americans are supposed to know if their pistols are exempt from the rule.

Janda replied they are exempt if they are too short with their attached braces to be shouldered like rifles or if their braces are a soft material designed for strapping around the shooter’s arm.

U.S. Circuit Judge Don Willett pressed Janda to respond to the plaintiffs’ argument that stabilizing braces make pistols more controllable and safer.

Willett, a Trump appointee, cited the Supreme Court’s 2022 ruling in New York State Rifle & Pistol Association Inc. v. Bruen. The 6-3 majority found New York unconstitutionally restricted the possession of concealed guns in public and determined governments must show their gun restrictions are consistent with the nation’s historical tradition of firearm regulation.

“Under Bruen, is there any history or tradition that would allow governments to prohibit individuals from making safety-enhancing improvements to a weapon?” Willett asked.

Janda said short-barreled rifles combine the concealability of a pistol with the accuracy of a rifle.

“And that particular combination Congress has determined is particularly dangerous,” he said.

Janda said that's reflected in the 90-year-old National Firearms Act.

“It’s also reflected in, I think, 30 different states and the District of Columbia, all of which impose either outright bans on short-barreled rifles or prohibition unless they are possessed in compliance with the NFA’s requirements,” he added.

Addressing the Bruen concerns, Janda said the act's registration and taxation rules are consistent with U.S. traditions going back to colonial times when governments went door-to-door surveying and recording who owned firearms and inspected them to ensure they were safe.

But Jaffe, the plaintiffs’ attorney, said the colonial-era inspections were to check if militias had adequate guns available, not to take guns from their owners.

U.S. Circuit Judge Jerry Smith, a Reagan appointee, joined Willett and Higginson on the panel. The judges did not say when they would rule on the appeal.

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