A Milwaukee-based public interest law firm has won a key victory in a Second Amendment battle.
The Wisconsin Institute for Law & Liberty (WILL) on Wednesday secured a preliminary injunction in federal court on behalf of three veterans challenging the Bureau of Alcohol, Tobacco, Firearms and Explosives rule regulating up to 40 million pistols equipped with stabilizing braces.
ATF’s new restrictions represented a “clear attack on the Second Amendment and a significant overreach by federal bureaucrats,” WILL said in a press release. The law firm was the first organization to file a lawsuit against the federal rule.
In issuing the preliminary injunction, U.S. District Court Judge for the Northern District of Texas-Amarillo Division Matthew J. Kacsmaryk noted he is following the U.S. Fifth Circuit Court of Appeals lead. The appeals court has enjoined the rule while it deliberates on a related lawsuit.
“This court’s decision serves as an important reminder that the fight freedom never stops,” plaintiff Darren A. Britto of Amarillo said in a press release. “I am proud of what we have done to protect the Second Amendment and the rights of law-abiding citizens across America.”
In the lawsuit, the plaintiffs allege the sweeping gun control rule, which recategorizes up to 40 million pistols with stabilizing braces as “short-barreled rifles,” not only violates the Second Amendment, it runs afoul of the Separation of Powers. Federal agencies are barred from making new laws without clear congressional authorization, and the lawsuit alleges ATF’s rule is the executive branch usurping the legislative branch’s power.
A stabilizing brace, invented to help disabled veterans fire their pistols safely, is an accessory that can be installed on a pistol. It attaches to the user’s forearm to stabilize the pistol against the user’s arm, resulting in more accurate shooting and greater comfort for the user.
ATF’s new rule requires millions of Americans to register these firearms on a federal registry and pay a tax, according to the lawsuit. Anyone in possession of a pistol re-classified by ATF as a “short-barreled rifle” is immediately in violation of the National Firearms Act (NFA) and faces a $10,000 penalty or up to 10 years in prison.
“Americans who do not wish to be placed on a federal gun registry must either destroy their stabilizing brace or turn in their weapon. Non-compliance with this federal-registration requirement will threaten millions of Americans with fines and imprisonment,” WILL stated in a press release earlier this year upon taking the Biden administration to court.
In January, the Department of Justice announced it was submitting to the Federal Register the “Stabilizing Braces” Final Rule, “which makes clear that when manufacturers, dealers, and individuals use stabilizing braces to convert pistols into rifles with a barrel of less than 16 inches, commonly referred to as a short-barreled rifles, they must comply with the laws that regulate those rifles, including the National Firearms Act.”
Attorney General Merrick Garland said the rule is designed to keep communities safe from gun violence, and more government regulations tied to the nearly century-old National Firearms Act of 1933 and the Gun Control Act of 1968 will do just that.
The lawsuit alleges the rule is unconstitutional.
Plaintiffs Darren A. Britto, of Amarillo, Texas; Gabriel A. Tauscher, of Oconomowoc, Wisconsin; and Shawn M. Kroll, of Hartland, Wisconsin, are each decorated war veterans.
Tauscher served in the U.S. Marines and was deployed in the Global War on Terrorism. In 2020, he was ambushed and shot 15 times in Minneapolis, according to the lawsuit. He spent 85 days in the hospital, enduring multiple surgeries and requiring 20 pints of blood. Tauscher owns a pistol with a barrel less than 16 inches and a stabilizing brace, which he uses for personal protection and recreation, the lawsuit states.
Britto, a decorated Marine combat veteran who served with distinction in Somalia, Afghanistan, and Iraq, also owns a pistol with a stabilizing brace. The Biden administration rule makes a “short-barreled rifle” subject to all of the restrictions.
“Mr. Britto uses this firearm for personal defense, competitive sport shooting, recreation with his family, and as part of employment as a firearms instructor certified by the NRA and the State of Texas,” the lawsuit states.
Kroll, a decorated Marine combat veteran who served in the War in Afghanistan from 2009 to 2010, uses a stabilizing brace “because it makes the firearm more accurate and therefore safer.”
As the lawsuit notes, ATF, more than a decade ago, made clear that the mere installation and use of a stabilizing brace does not bring a firearm under the purview of the National Firearms Act.
The agency has reaffirmed that position multiple times over the years.
Under its new rule, ATF creates “other factors” that lump pistols with stabilizing braces into the same categories of guns designed or intended to be fired from the shoulder and regulated as such. ATF’s language puts the rule at odds with the law’s statutory definition of a rifle, the lawsuit claims.
ATF says gun owners impacted by the rule have “options.” They can:
- Remove the barrel and attach a 16-inch or longer barrel, which ATF says will remove the firearm “from the scope of the National Firearms Act.”
- Register the firearm as an NFA firearm by submitting the ATF Form 1, thereby being listed in the National Firearms Registration and Transfer Record database. The statutes require the payment of a $200 tax as well, but ATF has said it will forgo collecting those taxes as part of their “discretion.”
- Permanently remove and dispose of or “alter” the stabilizing brace so that it may not be re-installed.
- Surrender the firearm to a local ATF office.
- Destroy the firearm.
“The Rule forces Plaintiffs to either comply with ATF’s demands within 120 days or risk criminal penalties, including up to 10 years in prison, all for owning a device that ATF has repeatedly and affirmatively approved going back more than a decade,” the lawsuit states.
Kacsmaryk noted in his order that there are at least seven substantially similar cases pending in federal court — including three in his district. The Fort Worth Division recently denied a preliminary injunction in a case involving comparable plaintiffs, injuries, and relief requested.
On review of the Fort Worth Division’s denial, an emergency motions panel for the the Fifth Circuit Court of Appeals enjoined the ATF rule pending the expedited appellate review. The Fifth Circuit’s preliminary injunction, however, only covers the plaintiffs in the Fort Worth court case.
“[B]ecause appellate review of the Rule is now expedited, this Court FINDS that the same relief ordered by the Fifth Circuit should be granted to Plaintiffs …” the judge’s order states.
The lawsuit is part of WILL’s Preserving Democracy Project. The project enforces the structural limitations on government power, hold bureaucrats to the rule of law, and fight back against rogue government officials at the local, state and federal level—who act beyond the authority given to them.
The lawsuit is one of nine filed by WILL against the Biden administration and WILL’s fourth win to date, according to the law firm.
“Since President Biden took office, WILL attorneys have been on the front lines challenging his willingness to ignore the law, implementing policies he can’t get through Congress. We will continue to stand up for our democracy,” said Rick Esenberg, president and general counsel for the Wisconsin Institute for Law & Liberty.
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M.D. Kittle is the National Political Editor for The Star News Network.
Photo “ATF Agents” by Diplomatic Security Service.
