A group of AR-15s at range day for SHOT Show 2022
A group of AR-15s at range day for SHOT Show 2022 / Stephen Gutowski

Analysis: Lawsuits Remain Most Likely Path to End Pistol-Brace Ban [Member Exclusive]

The House of Representatives voted this week to repeal the pistol-brace ban. The resolution heads to the Senate, where it will get a vote and has a decent chance of passing. But court challenges are still gun-rights advocates’ best bet for blocking the ban.

On Wednesday, the House passed H.J. Resolution 44 by a mostly-party-line vote of 219 to 210. Anybody who knows the makeup of the Senate and can do math might assume that’s the end of the story since Democrats control what legislation comes to the floor in regular order. But the repeal has a better chance of making it to President Joe Biden’s desk than it might appear at first glance because Resolution 44 won’t be going through regular order. Instead, it’s a privileged motion under the Congressional Review Act (CRA).

That means it will get an up or down vote without the opportunity for poison pill amendments to be added by opponents. It will only need a majority to pass.

If every Republican supports the resolution (only Alaska’s Lisa Murkowski and Maine’s Susan Collins haven’t signed on as cosponsors), they only need to pull over two votes from the other side of the aisle. Senators Jon Tester (D., Mont.), Joe Manchin (D., W.Va.), Kirsten Sinema (D., Ariz.), and Angus King (I., Maine) are all potential yes votes. None of the swing votes responded to my requests for comment on where they stand, except for Tester’s office, which told me he is still reviewing the resolution.

Still, it’s entirely possible the resolution gets to 51. President Biden has already had to veto five other CRA resolutions that made it to his desk since Republicans retook control of the House in last year’s midterms. It wouldn’t be a crazy bet to place your money on this becoming the sixth since the brace ban is constitutionally questionable and affects millions of gun owners–something swing-state Democrats are likely sensitive to.

But the fact that Biden can veto the resolution is what will ultimately doom it. As with those five previous CRA resolutions, there is little reason to think the pistol-brace ban repeal could get the two-thirds vote required to override his veto in either house, let alone both.

That doesn’t mean the CRA resolution is without merit. Forcing President Biden to double down on the pistol-brace ban by vetoing a repeal effort that was able to garner moderate Democratic support is politically advantageous. But the practical effort to undo the ban will still fall to the numerous lawsuits that have been filed against it around the country.

The good news for gun-rights advocates is that fight is going pretty well so far.

As the grace period to register pistol-brace-equipped guns without cost or consequence ended earlier this month, four different federal courts issued injunctions that blocked the ATF from enforcing the ban against plaintiffs in the cases. Those courts also clarified that members of the gun-rights groups that were involved in the cases were also protected by the injunctions. That means the ATF can’t go after millions of gun owners for violating the ban as the cases unfold.

Additionally, the ATF has received registration applications for only a fraction of the braced guns estimated to be in circulation.

That’s unlikely to change as the number of people protected by the injunctions grows. The NRA and National Association for Gun Rights have both filed to intervene in the successful challenges with the request that their members be covered as well. And the groups already enjoying that protection have seen their ranks swell in the short time since the injunctions were issued.

A ruling on the merits of the ban is also likely coming soon. The Fifth Circuit Court of Appeals panel that set the string of injunctions in motion has set an expedited hearing schedule. Oral arguments start on June 29th. Given the panel has already found the ban likely unconstitutional as a prerequisite to issuing the injunction, they will probably strike it down in relatively short order.

So, while the congressional action against the pistol-brace ban is politically meaningful, the legal action is where gun-rights advocates will see their efforts turned into a practical effect.

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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Created by potrace 1.16, written by Peter Selinger 2001-2019

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