ATF Brace Ban Under Scrutiny

Stabilizing braces have been the subject of private letters on particular taxpayer issues and were deemed wholly legal—until now. In January 2023, Attorney General Merrick Garland signed the ATF rule 2021R-08F titled “Factoring Criteria for Firearms with Attached ‘Stabilizing Brace.’”

Although the rule had been on the table for the last two years, the announcement of the regulation of pistol braces was a shock to the gun owners who owned an estimated forty million of them. The new rule would not ban braces in their entirety but would require many firearms so equipped to be registered as NFA items. The legality of the move, as well as the unreasonable 120-day period for amnesty, destined the rule to litigation. 

Lawsuits Against the Brace Ban

In early February, it was announced that the Firearm Policy Coalition filed suit against the Justice Department. Their Mock v. Garland suit maintains that the rule violates the Second Amendment as well as the Administrative Procedures Act. The latter governs which and when federal agencies can issue rules under the enforcement powers assigned to the President by Congress. The APA was recently used to block student loan forgiveness over a lack of public comment before the implementation of the rule. A subsequent suit, Watterson vs. ATF, argues that the Department of Justice did not have the legislative fiat to make the rule at all.

On Feb. 10, SB Tactical—the firm that created the first pistol stabilizing brace—along with B&T USA, Rick Cicero, and twenty-six state attorney generals joined a Firearm Regulatory Accountability Coalition lawsuit against the ATF.  (Cargill vs. ATF). Jeff Creamer, CEO of SB Tactical excoriated a rule that “under the guise of public safety, the ATF has placed millions of law-abiding firearm owners in legal jeopardy. It’s a gross overreach of the Bureau’s authority and, if allowed to stand, will result in the largest gun registration scheme in US History.” Travis White, president of the Firearm Regulatory Accountability Coalition, was more pointed and “confident that the Courts will continue to hold the ATF accountable for their pattern of regulatory overreach and ever-shifting positions.”

Manufacturers of pistol braces and pistols are not the only aggrieved parties. Gun owners like Richard Cicero can demonstrate the harm of infringement beyond the registration penalty. Cicero is a retired police firearm instructor and veteran who suffered traumatic brain injuries and the loss of an arm and a leg in Afghanistan. His infirmity prevents him from using legal handguns in a safe and conventional manner without the aid of a stabilizing brace. He has also trained the physically challenged on how to fire pistols with the help of a brace.

The suit claims that the new rule was an about-face by the ATF, who had the “longstanding position that these items were not subject to NFA controls or heightened Gun Control Act, or ‘GCA’ regulations. The reversal will require millions of Americans to choose between the loss of their lawful (and lawfully acquired) firearms, the loss of their privacy, and the risk of criminal penalties.” The Final Regulatory Impact Analysis and Final Regulatory Flexibility Analysis conducted by the ATF concludes that their “clarification” of pistol brace regulation would result in the loss of over 750,000 firearms and cost taxpayers between two and five billion dollars.

West Virginia Attorney General Patrick Morrisey justified pistol braces as an aid for accuracy and recoil management and called the ATF’s action the latest salvo in the Biden administration’s war against lawful gun owners. Backers of the rule claim that pistol braces allow criminals to turn pistols into short-barreled rifles. Despite the fears, pistol braces are rarely encountered on the crime scene. But pistol braces do aid in controlling a handgun, particularly among those most vulnerable to crime. Morrisey claimed that the ATF brace ban affects “most all pistol and handgun owners” and “we should not be making it harder for senior citizens and people with disabilities—and many disabled veterans—to defend themselves.” (WV News)