(In paragraph 2, please read “A 2-1 panel” instead of “In a unanimous decision.” Corrects vote. In paragraph 10, please read comment from dissenting Judge Higginson, instead of Higgonson “joined in the opinion”)
By Brendan Pierson
(Reuters) – A U.S. regulation restricting ownership of gun accessories known as pistol braces is likely illegal, a federal appeals court ruled Tuesday, a victory for a gun rights group challenging the rule.
A 2-1 panel of the New Orleans-based 5th U.S. Circuit Court of Appeals found that U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives finalized the rule in January without giving the public a meaningful chance to comment on it. That made it invalid under the federal Administrative Procedure Act, the panel found.
The court did not immediately block enforcement of the rule, instead sending the case back to U.S. District Judge Reed O’Connor in Fort Worth, Texas. O’Connor will have to decide whether to issue an order blocking enforcement while the case goes forward, and if so, whether that order will apply nationwide or only to the plaintiffs in the case.
Several federal judges have already issued preliminary orders blocking enforcement of the rule enacted by President Joe Biden’s administration and challenged by lawsuits from gun rights groups. But those orders apply only to members of the groups, and only in those judges’ jurisdictions.
The lawsuit was brought by the Firearms Policy Coalition. Cody Wisniewski, the group’s lawyer, called the ruling “a huge win for peaceable gun owners across the nation.”
ATF did not immediately respond to a request for comment.
Pistol braces were first marketed in 2012 as a way of attaching a pistol to the shooter’s forearm, stabilizing it and making it easier to use for disabled people. However, many users found that the braces could also be placed against the shoulder, like the stock on a rifle.
The disputed rule classifies some guns equipped with pistol braces as short-barrel rifles, based on several factors including their size and weight and the manufacturers’ marketing materials. Short barrel rifles are subject to special registration, longer waiting periods for purchase, and higher taxes because they are potentially more dangerous than handguns.
5th Circuit Judge Jerry Smith wrote Tuesday that ATF’s final rule was dramatically different from the proposed rule it offered for public comment in 2021. The judge said that amounted to “a rug-pull on the public.”
Circuit Judge Don Willett said in a concurring opinion that the rule likely violated not only the Administrative Procedure Act, but also the right to bear arms under the Second Amendment of the Constitution, an issue that the majority did not address.
Circuit Judge Stephen Higginson dissented, saying that the final rule did not require public comment because it merely interpreted law passed by Congress.
Smith and Willett were appointed by Republican former presidents Ronald Reagan and Donald Trump, respectively, while Higginson was appointed by Democratic former president Barack Obama.
(Reporting By Brendan Pierson in New York; Editing by David Gregorio)
