President Biden’s efforts to enact new gun restrictions are failing, and it’s only likely to get worse for him from here.
On Thursday, federal district judge Reed O’Connor exempted Defense Distributed and its customers from the ATF’s new rule banning the sale of most unserialized gun kits and unfinished gun parts. Given the company’s position as a leader in the space, the ruling makes enforcement of the ban against anyone far more difficult. And it darkens the shadow already cast over the legal prospects of Biden’s other unilateral gun restriction: the pistol-brace ban.
Judge O’Connor found the ATF exceeded its statutory authority under the Administrative Procedure Act (APA) when it decided to reinterpret what constitutes a “firearm” after several decades in an effort to shut down the sale of unfinished parts and homemade gun kits. While it doesn’t directly mention it, the ruling is rooted in the same logic the Fifth Circuit Court of Appeals used to strike down the ATF’s bump stock ban in January. And it is difficult to see how the agency’s pistol brace rule won’t meet the same fate.
Judge O’Connor wrote in VanDerStok v. Garland that “[t]he Government’s likely ultra vires enforcement efforts upset decades of ATF regulatory precedent against a public that has relied on that historic posture” and “the liberty interests of law-abiding citizens wishing to engage in historically lawful conduct (dealing in now-regulated parts)—which Defense Distributed shares—outweighs the Government’s competing interest in preventing prohibited persons from unlawfully possessing firearms.”
Interestingly, none of this is due to the Supreme Court’s landmark ruling in New York State Rifle and Pistol Association v. Bruen. In fact, these cases don’t even deal with the Second Amendment. Nor do they deal with the Supreme Court’s decision on how regulators have to operate in West Virginia v EPA.
At least not directly. The Court turning a more skeptical eye to significant regulatory revisions that happen without explicit congressional direction as well as gun restrictions, may be playing a subtle role. But that influence hasn’t translated into the written text of the opinions in these cases.
Instead, these rulings have hinged on the limited reach of the ATF and the inconsistent way it has pursued regulation in each area. The agency’s repeated insistence that a product or practice was legal for years only to turn around and decide it no longer is, at the direction of a president and without a new legislative mandate, has proved fatal for its efforts to enforce its new rules.
“As an initial matter, it purports to allow ATF—rather than Congress—to set forth the scope of criminal prohibitions,” Judge Jennifer Walker Elrod wrote for the majority in Cargill v. Garland. “Indeed, the Government would outlaw bump stocks by administrative fiat even though the very same agency routinely interpreted the ban on machineguns as not applying to the type of bump stocks at issue here. Nor can we say that the statutory definition unambiguously supports the Government’s interpretation.”
The story of the pistol brace ban, which affects far more Americans than the bump stock ban or “ghost gun” ban, is much the same. The ATF initially ruled pistol-braced guns fell outside the registration and tax stamp requirements of the National Firearms Act, then issued a series of increasingly confusing guidances seeking to limit their use before ultimately deciding they are subject to the law. On top of that, the final rule they issued is as confusing as anything else they’ve said on the topic with experts and industry members alike struggling to understand whether any pistol-braced guns are still exempt despite the ATF’s claims some may be.
The case involves all the same factors that have seen the bump stock and “ghost gun” bans fall in court. The confusing nature of the ATF’s myriad of positions on pistol braces matches that of its stance on bump stocks, likely running afoul of the rule of lenity.
“The definition of ‘machinegun’ as set forth in the National Firearms Act and Gun Control Act does not apply to bump stocks,” Elrod wrote in Cargill. “And if there were any doubt as to this conclusion, we conclude that the statutory definition is ambiguous, at the very least. The rule of lenity therefore compels us to construe the statute in Cargill’s favor.”
The financial effects of the pistol brace ban are also equivalent to the “ghost gun” ban for companies in each sector, making a preliminary injunction more likely.
“Defense Distributed has shown that it is likely to suffer irreparable harm—through unrecoverable lost revenues and, potentially, eventual total dissolution of its business—if the Court does not provide injunctive relief while litigation is ongoing,” O’Connor wrote in VanDerStok.
There are about a half a dozen pistol brace cases out there with varying claims, including ones filed outside the Fifth Circuit that deal with Second Amendment concerns. Any of them could succeed. But, at this point, the cases in the Fifth Circuit (like Mock v. Garland that’s in front of Judge O’Connor) that deal directly with the APA claims seem to have the best chance.