Second Amendment Roundup: 8th Circuit Rules in Favor of Pistol Brace Owners

ATF shoots the side of a barn, draws a target around the bullet holes, and proclaims “bullseye!”

The U.S. Court of Appeals for the Eighth Circuit has decided that ATF's Final Rule determining that most pistols with stabilizing braces are short-barreled rifles is arbitrary and capricious.  The case is Firearms Regulatory Accountability Coalition, Inc. v. Garland ("FRAC"), decided on August 9 and authored by Judge Steven Grasz.

The decision is filled with illustrations, beginning with a shooter with the brace's strap wrapped around his forearm and a cuff further supporting the forearm.  The device facilitates holding a heavy pistol with one hand.  At the peak of their popularity in 2020, there were seven million braces owned by the public. Untold numbers were sold between then and when the Final Rule was published in 2023.  ATF previously said the braces are legal.  However, as the court notes, "The consequence of the ATF's about-face is that many individuals, relying on the ATF's previous classifications, were apparently committing felonies for years by possessing braced weapons."

The ATF rule's first step is to see if the rearward attachment of a brace "provides surface area that allows the weapon to be fired from the shoulder," but it gives no mathematical guidance as a standard.  ATF implies that, if actual dimensions are set, cheaters will circumvent the rule.  The court responds: "That the regulated parties wish to see more specific metrics does not mean they wish to skirt or circumvent the law, as ATF insinuates. They may simply wish to comply with the law, by producing or equipping stabilizing braces that do not have a rear surface area that allows for shoulder firing a weapon."

The rule's second step assesses two criteria: how a brace is marketed and its use in the community. But that would base criminal liability on third parties' intent, about which a possessor would be unaware.  And the rule doesn't specify how these criteria will be evaluated.  How will ATF assess alternative explanations for the same marketing materials?  Who makes up the "general community"? As the court notes, "the community-use factor relies on circular reasoning: 'the likely use of the weapon by the general community' is determined by its 'use … in the general community.'"

To use a simple example, how would ATF weigh one person posting a video properly firing a braced pistol without shouldering it, while another person posts a video of firing the pistol from the shoulder?

As the court concludes, because the marketing and community-use factors require analyzing third parties' intent and attributing their intent to any individual who affixes a stabilizing brace to a weapon, the Final Rule "would hold citizens criminally liable for the actions of others, who are likely unknown, unaffiliated, and uncontrollable by the person being regulated."

ATF provides two of what it calls "Slideshows" of photographs of numerous configurations of braced pistols and found that all would likely be classified as short-barreled rifles, without providing any explanation of why or how its criteria lead to this result. ATF implies that plaintiffs have the burden to prove that the braced pistols are not short-barreled rifles, an impossible task because ATF gives no guidance.  As the court quips, "The ATF's burden-inverting argument makes as much sense as shouldering a rifle by the barrel…."

That's just one instance of the court's use of gun satire.  The next is its witty remark that "the Slideshows represent no more than the firing of a warning shot."  In other words, the rule "allows the ATF to arrive at whatever conclusion it wishes" without explaining its standard.  Now for the court's most clever but graphic remark:

The ATF claims that it fully intends to "follow up" the Slideshows with "detailed classification letters explaining each determination," and that any remedy for improper agency action would simply be to "remand any unexplained conclusions to the agency for further explanation or reconsideration." This is much like shooting the side of a barn, drawing the target around the bullet holes, and then proclaiming, "bullseye!"

That analogy vividly captures how a bureaucracy reaches its desired conclusion, and then finds the reasons to justify it.  Declare dozens of specific pistols with braces to be short-barreled rifles, and then, whenever you get around to it, explain the reason for each classification using a subjective, multi-factor "test."

Finding the Final Rule arbitrary and capricious, the Eighth Circuit thus remanded the case to the district court to reconsider whether to issue a preliminary injunction.  The district court had previously ruled for Garland by finding that the plaintiffs were unlikely to prevail and denied their motion for a preliminary injunction.

Judge Bobby Ed Shepherd dissented, but not on the merits.  He saw "no need to preliminarily enjoin the enforcement" of the Final Rule because it had been vacated by Mock v. Garland (N.D. Tex. 2024).  He quoted Mock itself as saying: "Because courts presume that the federal government will comply with [their] rulings, … injunctive relief is unnecessary…."

One must not presume too much.  Neither vacatur nor an injunction was entered in Cargill v. Garland at the time of the Fifth Circuit's en banc decision holding bump stocks not to be machineguns.  That holding should have sufficed to tell the government not to prosecute anyone for a bump stock.

Yet in the oral argument in the Supreme Court, the government threatened that members of the public – even in the Fifth Circuit – could be prosecuted anyway because the Federal Register gave bump stock owners notice of the device's status as a machinegun.  Justice Gorsuch wisecracked that reading the Federal Register is what gun owners "do in their evening for fun. Gun owners across the country crack it open next to the fire and the dog." And Justice Alito asked if bump stock owners who "are aware of the Fifth Circuit's decision … can be criminally prosecuted for doing something that the court of appeals that governs their territory has said is not illegal?"  The deputy solicitor general, shockingly, responded that yes, they can be prosecuted, the Court of Appeals decision notwithstanding.

Moreover, in Mock, Attorney General Garland has appealed the district court's granting of summary judgment to the plaintiffs to the Fifth Circuit, which could reverse the vacatur ruling.  And whatever the Fifth Circuit rules will arguably be binding only in that circuit.

To top it all off, the government is continuing to prosecute people for possessing braced pistols notwithstanding the Fifth Circuit's vacatur of the rule. The rationale is that they are not enforcing the rule but rather enforcing the statute directly. Thus, in addition to vacatur of the rule, the district court in FRAC should also enjoin the government from enforcing the NFA against braced pistols using the standards announced in the rule, even if they purport to be doing it under the statute and not the rule itself.

The Fifth and the Eighth Circuits are the only courts of appeals to have ruled on the Final Rule about pistol braces, so no circuit conflict exists.  When the government knocks on the Supreme Court's door, it gets opened with frequency.  But how many gun cases does the Court wish to decide?  And didn't society get along quite well during the years that ATF classified braced pistols as just pistols, not short-barreled rifles?