Fifth Circuit Court of Appeals clarifies the scope of their preliminary injunction against arm brace rule

Posted on May 27, 2023 by John Pierce

Earlier this week, I wrote a brief article about the Fifth Circuit granting a limited preliminary injunction against implementation of the ATF Arm Brace Rule (2021R-08F).

Since then, I have been asked the same two questions repeatedly by clients who wish to know what this means for them.  Those questions are:

  1. Does this preliminary injunction apply only to plaintiffs located in the Fifth Circuit (Texas, Louisiana, and Mississippi) or does it apply to plaintiffs regardless of where they are located in the country?
  2. If I join FPC (one of the plaintiffs in the case) now, will I be afforded the same protection as those that were members at the commencement of the litigation?

Apparently the plaintiffs had been fielding the same questions, because they filed a Motion for Clarification asking the court to specifically lay out the scope of those protected by the preliminary injunction.

Over the objection of the ATF, the court granted the motion and issued an order containing the requested clarification (see below for the full order).

The salient points are:

  1.  This is not a ‘nationwide injunction‘ as that term is used in the legal sense (not the geographic one), meaning it does not bind the federal government in its relations with nonparties.
  2. However, they made it clear that it does protect those “customers and members whose interests Plaintiffs Maxim Defense and Firearms Policy Coalition (‘FPC’) have represented since day one of this litigation,” regardless of where they are located.

Notice the part that I bolded above.  This means that, anyone who can document the fact that they were a member of FPC at the time to the commencement of the suit are protected.  Those who joined afterwards are not.

Those who are customers of Maxim Defense are similarly protected as to the items they purchased from Maxim Defense.  Whether the injunction can be read to include other  arm-brace equipped items those persons might possess was not a question answered by the court.  Out of an abundance of caution, and lacking further clarification from the court, I would advise my clients to assume those items are not protected.

So back to the question at hand.  What does that mean for those who are still not protected in this case?  As I said in my earlier article, while this is a potentially promising step, it is only one of many victories that will have to occur if the rule is to have a chance of being overturned.  In the meantime, you still need to comply in some fashion before the May 31st deadline.

Download (PDF, 82KB)

Posted in 2021R-08F, 2A, Administrative Law, Arm Brace, ATF, ATF Ruling, BATFE, Court Rulings, Federal Court, Fifth Circuit, NFA Trusts, Regulatory Rulemaking | Comments Off on Fifth Circuit Court of Appeals clarifies the scope of their preliminary injunction against arm brace rule

Some examiners are now allowing corrections on eForm submissions

Posted on May 23, 2023 by John Pierce

One of the FFLs I deal with frequently has not yet adopted the eForms system because of the fact that paper applications offer the chance of a correction letter, whereas an error on a submitted eForm would result in a denial and a requirement for a complete resubmission.

However, that may be changing, at least where some examiners are concerned.

Several members of the NFA group on Reddit have shared images of emails from examiners allowing documents (such as the Form 23) to be corrected via the eForms system rather than disapproving the entire application and forcing it to be resubmitted.

I do not know yet if this is limited to specific examiners or reflects a policy change for the entire agency.  Regardless, those who have submitted eForm applications should watch their emails closely since the emails that have been shared so far seem to limit the opportunity for correction to a 48-hour period.

 

Posted in eForms, NFA Trusts | Comments Off on Some examiners are now allowing corrections on eForm submissions

Fifth Circuit Court of Appeals grants LIMITED preliminary injunction against arm brace rule

Posted on May 23, 2023 by John Pierce

Earlier today, in a per curiam decision, the United States Court of Appeals for the Fifth Circuit granted a limited preliminary injunction in the case of Mock v. Garland.  If you recall, this is the same case where a preliminary injunction was denied at the District Court level, prompting this appeal.

This is one of many cases across the country challenging the ATF Arm Brace Rule (2021R-08F) which went into effect on January 31, 2023.  This preliminary injunction is timely given that the amnesty period provided for in the final rule is set to expire on May 31, 2023.

In the brief order, shown below, the court orders that oral arguments in the case be expedited to the next available date and grants the preliminary injunction, but only as to the plaintiffs in the case, and only pending the outcome of the appeal.

So what does that mean for those who are not plaintiffs in this case?  While a potentially promising step, it is only one of many victories that will have to occur if the rule is to have a chance of being overturned.  In the meantime, you still need to comply in some fashion before the May 31st deadline.

Download (PDF, 62KB)

Posted in 2021R-08F, 2A, Administrative Law, Arm Brace, ATF, ATF Ruling, BATFE, Court Rulings, Federal Court, Fifth Circuit, NFA Trusts, Regulatory Rulemaking | Comments Off on Fifth Circuit Court of Appeals grants LIMITED preliminary injunction against arm brace rule

DC federal court rules that standard capacity magazines are not protected by the Second Amendment

Posted on April 29, 2023 by John Pierce

On April 20, 2023, the United States District Court for the District of Columbia issued a disappointing ruling in the case of Hanson v District of Columbia.

Hanson concerned DC’s limit on magazine capacity and was a case that many in the legal community, myself included, considered to be a likely pro-gun win given the strong Second Amendment protections recently laid out by the Supreme Court in the case of New York State Rifle & Pistol Assn, Inc. v. Bruen.

The court engaged in what I consider to be convoluted semantic gymnastics to avoid invalidating DC’s ban on standard capacity magazines.  While acknowledging that standard capacity magazines are in ‘common use’ (Heller II noted that “fully 18 percent of all firearms owned by civilians in 1994 were equipped with magazines holding more than ten rounds, and approximately 4.7 million more such magazines were imported into the United States between 1995 and 2000.”), the court in Hanson astonishingly ruled that they are not particularly suitable for civilian self-defense and therefore not protected by the Second Amendment.

Specifically, the court stated that:

In conclusion, the Court finds that the Second Amendment does not cover LCMs because they are not typically possessed for self-defense. LCMs fall outside of the Second Amendment’s scope because they are most useful in military service and because they are not in fact commonly used for self-defense.

In my opinion, this ruling (see below for the full opinion) directly contradicts the holdings from Heller, Heller II, and Bruen. Those of us who felt that Bruen would ensure that the Second Amendment would cease being treated as a second-class right should take note that the struggle for meaningful recognition is far from over.

Download (PDF, 335KB)

Posted in 2A, 4th Circuit, Court Rulings, DC Law, Federal Court, Magazine Capacity, Opinion | Comments Off on DC federal court rules that standard capacity magazines are not protected by the Second Amendment

Federal judge in Texas has denied a request for preliminary injunction against the arm brace rule

Posted on March 31, 2023 by John Pierce

ATF Regulation 2021R-08F which effectively redefines arm-braces as butt-stocks for purposes of evaluating whether a firearm falls under the purview of the National Firearms Act (NFA), went into effect on January 31, 2023, and the amnesty period for compliance ends on May 31, 2023.

Many gun owners have not yet taken steps to comply with this regulation in the hope that one of the many legal challenges filed after the regulation was promulgated would result in a preliminary injunction.

One judge, in Texas, has denied such a request in the case of Mock v. Garland.  See below for the full text of the opinion:

Download (PDF, 290KB)

Several key takeaways from the ruling by Judge:

1. The court feels the term ‘rifle’ is ambiguous, and the ATF has the authority to clarify ambiguous terms in the statutes it is charged with administering (NFA, GCA, etc.).

“Given that other courts have recognized ATF’s authority to interpret the statutes it has been charged with administering when there is an ambiguity, it is not substantially likely that the Final Rule exceeds the agency’s scope of authority on this basis as the statute includes ambiguous terms in its definition of rifle.”

2. The act of defining, or redefining, an ambiguous term in a statute that the ATF is charged with administering is not an act of ‘creating law’ but merely an extension of the agency’s power granted by the original statute and the Administrative Procedures Act.

“Plaintiffs argue that the Final Rule runs afoul of the Constitution’s procedural protections because it ‘is an unreasonable construction of statutory terms and a clear example of the Agencies unlawfully creating law’ and, if an agency has authority to issue legislative rules, ‘that authority requires a clear delegation from Congress.’ Based on the Court’s assessment above that the Final Rule interprets—but does not rewrite—the underlying statutes, the Court finds these arguments unavailing.”

Unfortunately, this ruling is consistent with what I, and many others in the legal community, expected when these legal challenges were mounted given the deference the courts grant to administrative agencies engaged in interpretive rulemaking.

While there are many legal challenges remaining, I would encourage my clients who have not yet acted to contact me to discuss the options available to them.

Posted in 2021R-08F, Administrative Law, Arm Brace, ATF, Court Rulings, Federal Law, SBR, SBS, Second Amendment, Short Barreled Rifles, Short Barreled Shotguns, Stabilizing Brace | Comments Off on Federal judge in Texas has denied a request for preliminary injunction against the arm brace rule