Edward Hershon, Esq.

Recent federal court decisions have significantly impacted the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)'s rule that reclassifies pistols equipped with stabilizing braces as short-barreled rifles (SBRs), subjecting them to stricter regulations under the National Firearms Act (NFA).​

Eighth Circuit Ruling (August 2024):
In Firearms Regulatory Accountability Coalition, Inc. v. Garland, the Eighth Circuit Court of Appeals determined that the ATF's rule was "arbitrary and capricious." The court criticized the ATF's multi-factor test—which considered design, marketing, and community use—for lacking clear standards, making it difficult for individuals to ascertain compliance. The decision reversed a lower court's denial of a preliminary injunction and remanded the case for further proceedings. ​

Fifth Circuit Ruling (August 2023):
In Mock v. Garland, the Fifth Circuit Court of Appeals found that the ATF's final rule likely violated the Administrative Procedure Act (APA) by not providing the public with a meaningful opportunity to comment. The court noted that the rule introduced a new six-factor test, differing from the initially proposed criteria, without adequate notice. The case was remanded to the district court, which subsequently issued a preliminary injunction against the rule. ​

Second Amendment Considerations:
While the primary legal challenges have focused on administrative law, some courts have addressed Second Amendment implications. For instance, Judge Don Willett of the Fifth Circuit suggested that the rule might infringe upon the right to make common, safety-improving modifications to firearms. However, this perspective has not been uniformly adopted across all jurisdictions. ​

These rulings have led to a patchwork of enforcement, with certain injunctions applying to specific plaintiffs or groups, such as members of the Firearms Policy Coalition. The ATF has appealed some decisions, and the legal landscape continues to evolve.​

Despite the vacating of the Final Rule, the ATF continues to enforce the underlying statutes of the NFA. In United States v. Taranto, Taylor Taranto was charged with illegal possession of an unregistered SBR after authorities found a CZ Scorpion EVO 3 S1 pistol equipped with an SB Tactical stabilizing brace in his possession. The ATF's Firearms & Ammunition Technology Division conducted a technical examination of the firearm, using criteria from the now-vacated rule—such as weight, surface area for shouldering, length of pull, and sight configuration—to determine it was an SBR .​

Taranto's defense argued that the ATF's reliance on the vacated rule's criteria was inappropriate. In response, the government contended that while the Final Rule was vacated, the ATF retains the authority to enforce the NFA's provisions and can make case-by-case determinations about whether a braced firearm qualifies as an SBR. They asserted that the criteria from the vacated rule reflect the agency's best understanding of the statute and can inform their evaluations. ​

Implications for the Pistol Brace Rule

The Taranto case underscores the ATF's position that, even without the Final Rule, it can enforce the NFA's provisions regarding SBRs by assessing braced firearms individually. This approach has raised concerns among firearm owners and legal experts about the clarity and consistency of such determinations.​

Legal analysts suggest that the ATF's continued use of the vacated rule's criteria, even informally, could lead to further legal challenges. They argue that this practice may blur the lines between enforcing the statute and reintroducing the vacated rule's provisions without proper rulemaking procedures.​

Conclusion

While the ATF's Final Rule on pistol braces has been vacated, the Taranto case illustrates that the agency continues to scrutinize braced firearms under the NFA's existing framework. This situation highlights the ongoing legal complexities surrounding firearm classifications and the importance for firearm owners to stay informed about current regulations and enforcement practices.

For the most current information, it's advisable to consult legal counsel or official court documents. Hershon Legal is available to assist its clients with counsel on this subject.