06/03/2023
As a follow up to my earlier posts about the pistol brace rule that went into effect on June 1st, it's worth noting that additional injunctions were granted by federal appeals courts in Texas just prior to the rule taking effect. Like the earlier injunction in the Mock v. Garland case, these injunctions applied only to the named plaintiffs, not the general public.
The interesting aspect of the injunctions is that for plaintiffs such as Gun Owners of American, 2nd Amendment Foundation, and Fi****ms Policy Coalition (all excellent 2A advocacy groups to support, by the way), the injunction extends to their members. This means members of these groups would all be protected under the injunctive relief granted by the appeals court and those members would NOT be subject to the provisions of the pistol brace rule (in other words, they don't have to comply with the unlawful rule). However, it appears that courts will likely apply a limitation on that injunction and ONLY cover members of these groups that were already members as of May 31, 2023. Joining now will not likely secure protection for you against the rule.
Now, that is certainly good news and extends protection to continue lawfully using a stabilizing brace on your pistol if you were a member within the time required. However, the bigger takeaway from these recent decisions is that the appeals court, in order to determine that it was proper to grant the injunctions, was required by law to first make a finding that the plaintiffs were likely to ultimately prevail in their cases against the Attorney General and the ATF. The legal standard for a court to grant an injunction has long been that the court must find, among other things, that the plaintiff seeking the injunction is reasonably likely to prevail on the merits of the ultimate case.
Reasonably likely to prevail on merits of the ulimate case simply means that based on its initial review of the arguments presented by the parties in their written court filings, the reviewing court agrees that the argumen against the new law or other action of the defendants in the case (in this case, the ATF's new rule) is likely to win. In other words, the law or action is not legally allowable and will ulimately be struck down once a full hearing on the issues has been conducted. If it appears that will be the case, then the reviewing court is more likely to grant the injunction sought by the plaintiff.
In the case of ATF's new rule, the appeals courts have reviewed the written arguments of the plaintiffs and the government and have concluded in separate cases now that the plaintiffs are likely to prevail on their arguments that the new ATF rule is unlawful. That is a very encouraging development for those who oppose the new rule and is a strong signal that we may ultimately see ATF get checked hard on this action and see the rule struck down. If it does get struck down, that will likely allow anyone who lawfully used a stabilizing brace on one of their fi****ms before June 1, 2023, to once again install and use a brace after the ruling. Until then, though, if you are not among the limited class of people covered by the injunctive relief, you must comply with the rule or run the risk of prosecution by an overzealous ATF and Department of Justice (no matter how much of a blatant overreach the rule really is at present).
As always, feel free to reach out with questions about this, or other gun laws or self-defense laws.
