The ATF is facing an uphill battle after dropping its pistol brace ban.
The agency announced the final version of the ban on Friday. 120 days after it’s published, anyone who hasn’t registered or disposed of their pistol-braced gun could face felony charges. But there’s good reason to think that may never happen, and it came exactly one week before the ATF’s announcement.
On January sixth, the Fifth Circuit ruled against the ATF’s bump stock ban. Despite being passed under two different administrations, the story of the regulations are strikingly similar. As are the glaring legal problems with them.
First off, the ATF’s track record on each device is completely inconsistent. Despite initially saying neither fell under the purview of the National Firearms Act, the agency now claims they do and always did. This creates a tremendous credibility problem for the agency in the public eye and in the courts.
To hear the ATF tell it, firearms equipped with bump stocks were always illegal unregistered machineguns–even when the agency directly said otherwise. Similarly, it now says nearly all guns equipped with pistol braces have always been illegal unregistered short barrel rifles–even when they previously said otherwise.
Even if you ignore those previous determinations, the ATF offers no good explanation for why it allowed the licensed dealers it oversees to sell incredible numbers of guns it now claims were always illegal. This wasn’t done in secret. Nearly every licensed dealer in the country sold pistol-brace-equipped AR-15s, and even the ATF estimates there are at least three million in circulation.
It’s a ruinous position for the agency’s credibility that these guns were always illegal, and it never did anything about it until years later. But they’ve now made that same claim twice. However the credulity of that claim impacts public opinion of the ATF, it has already been rejected by the Fifth Circuit.
That court’s ruling didn’t rely on the recent Bruen standard or even cite the EPA ruling restraining executive agencies’ powers. Instead, it focused on the ATF’s attempt to reinterpret federal law in a way that broadened its own regulatory authority and how confusing the outcome would be for Americans trying to comply with it.
Given the nearly identical development of the bump stock ban and the pistol brace ban (as well as the “ghost gun” kit ban, for that matter), it’s tough to see how they don’t end up at the same destination. The Second Amendment Foundation already has a legal case against the pistol brace ban pending in the Fifth Circuit. Though not a guarantee, it’s entirely possible that a federal judge could block enforcement of the new prohibition before the 120-day grace period ends.
And that’s only possible because of the long fight over the bump stock ban. It took four years–well after the turn-in date for the stocks came and went–for one of the cases against the ban to win at the appellate level. The pistol brace ban could have been subject to the same timetable were it not for the precedent-setting win earlier this month.
Of course, that doesn’t mean the outcome of the legal fight is certain. Little ever is in the courts. The Fifth Circuit ruling against the bump stock ban creates a circuit split that will likely compel the Supreme Court to take up the case if the government decides to appeal, which it almost certainly will.
The High Court just set a high bar for gun laws and regulations to clear in June during the Bruen case. There’s good reason to think it would side with gun owners here too. But there have been dicta and concurrences that suggest at least some members of the majority may not be as gung ho about striking down gun regulations, even if it’s hard to see how they meet the test they’ve agreed to. And the Fifth Circuit’s ruling was focused much more on the limits of executive agency power than Second Amendment rights.
Still, the odds are long enough on the pistol brace ban surviving scrutiny that it’s genuinely surprising the Biden Administration didn’t pause more than a week to reconsider it after the bump stock ban was tossed.