As a U.S. Navy veteran, I may (tongue in cheek) have an issue with crediting Marines with anything positive except being good at doing pushups and making the chow line long. However, when it comes to the Second Amendment there are three decorated Marines: Darren A. Britto, Gabriel A. Tauscher, and Shawn M. Kroll listed as the plaintiffs in Britto v. ATF, filed in the federal District Court for the Northern District of Texas that I’d like to send a salute to.
November 8, 2023, U.S. District Judge Matthew Kacsmaryk ruled that the ATF’s Pistol Brace ban was an attempt by unelected bureaucrats to legislate by regulation in violation of the Administrative Policy Act (APA). Furthermore, Judge Kacsmaryk went on to state that the ruling placed in the National Registry for comments, and the Final Rule, did not significantly match. In other words, the judge said the ATF complied by issuing a comment and response period, but later significantly changed the language of the ruling — sort of a bait and switch.
While that was enough, the judge was not finished. Judge Kacsmaryk also took issue with the ATF Pistol Brace Ban on Common Use grounds. The ATF agrees that there are 5 million or more pistol braces in use, which is enough to prove the braces meet the “common use” clause. Previously, the ATF lost a case based on an estimated 100,000 stun guns because the court ruled that the 100k units met the definition of ‘common use.’ Estimates for pistol braces currently in the hands of gun owners range up to 40 million units.
This is not the first loss the ATF has suffered regarding pistol braces. The Second Amendment Foundation, NRA-ILA, and others have all scored victories that have delayed implementation or caused the ATF to regroup and resubmit the proposed ban. There was even a previous injunction based on a lawsuit filed by the Firearms Policy Coalition that covered all its members — at the time the injunction was issue and all future members.
Judge Kacsmaryk’s ruling in Britto v. ATF is different. It covers all gun owners with a pistol brace — all 5 to 40+ million. That’s right, millions of gun owners who legally purchased a pistol brace, approved by the ATF (which previously ruled and clarified its ruling to state that the addition of a pistol brace did not make the gun a short-barreled rifle (SBR)), no longer need to be concerned that of being overnight declared felons and subject to fines or the loss of their Second Amendment protections.
Judge Kacsmaryk wrote, “Additionally, ATF admits the 10-year cost of the Rule is over one billion dollars… And because of the Rule, certain manufacturers that obtain most of their sales from stabilizing braces risk having to close their doors for good.”
The judge claimed, “The Court is certainly sympathetic to ATF’s concerns over public safety in the wake of tragic mass shootings.” The court also noted, “Public safety concerns must be addressed in ways that are lawful.”
“This Rule is not,” Kacsmaryk concluded.
Highs and Lows
Most often, when reporting on these events, there is a high and a low. Yeah! The 2A won in court! Boo! An immediate injunction prevented gun owners from the relief the courts granted. As of the time this article was published, no injunction has been granted. However, I would not get my hopes up that one is not in the wings.
An evil ATF or political henchmen?
Over the last year or so, I’ve talked with senior members within the ATF. I can tell you that the ATF did not want this ruling. Political pressure was the source. While the ATF may want to just lick its wounds and let this die a quiet death, I’m pretty certain the anti-gun contingent of the current Biden Administration will force the ATF to try for another bite at the apple.
Should that happen, the case will go before the 5th Circuit Court of Appeals, which has a recent track record of pro Second Amendment rulings against the ATF. In my best guestimation (I’m not a legal scholar, but I slept in a Motel 6 once), the ATF will likely lose again. That leaves one path for enforcement, the Supreme Court of the United States (SCOTUS). With SCOTUS, I believe the chances of enforcement are even lower given its more recent decisions handed down in Bruen, Carson, Erickson, and Mock.
Will CTD currently sell braces or brace-equipped firearms?
I’d love to say yes, but the answer is “No.” Before y’all start with the cacophony of accusations about being anti 2A in any way, please read the following…
While we would love to start rolling them out the door, a potential injunction from an appeal is looming (as I already mentioned). It does not serve the Second Amendment or our customers (in my humble opinion), by potentially subjecting them to scrutiny from law enforcement for a purchase made during a ‘window of legal opportunity’ called Freedom Week.
Illinois gun owners are facing such a dilemma from a recent ruling. Illinois residents who purchased so-called ‘assault weapons’ during Freedom Week will not be able to register the guns and are considered illegal in the state. Confiscation would be the next step.
Overall, I believe Second Amendment advocates have a lot to be excited about. The Pistol Brace Ban case has tremendous possibilities, including overturning all so-called assault weapons and large-capacity magazine bans.