Pistol Brace Lawsuit Forges On As Wyoming And 24 Other States Sue Over Federal Rule

A federal appeals court joined a lower court Tuesday in declining to pause an ATF rule against pistol braces while reviewing Wyoming and 24 other states' lawsuit against a federal rule classifying braced pistols as illegal short-barreled rifles.

Clair McFarland

January 02, 20244 min read

Pistol Braces 1 2 24
(Cowboy State Daily Staff)

Correction: An earlier version of this story said pistol braces remain illegal. However, a Fifth Circuit Court is keeping the braces legal for now nationwide, with its own injunction.

A federal appeals court ruled Tuesday it will not pause the federal government’s rule classifying pistols with braces on them as short-barreled rifles as Wyoming sues the ATF over the rule.

Wyoming, 24 other states, a gun-rights group, two gun companies and an individual sued the ATF and U.S. Attorney Merrick Garland in February 2023, arguing against an ATF rule change that categorizes braced pistols as short-barreled rifles.

The rule outlaws braced pistols or requires their owners to register them. It will, reportedly, compel millions of Americans to register their pistols under the National Firearms Act or face a felony punishable by up to 10 years in prison.

A federal judge in North Dakota declined in September to block the ATF’s rule, saying the agency acted within the “zone of reasonableness” in outlawing any firearm designed or intended to be fired from the shoulder.

Wyoming and its co-plaintiffs challenged the judge’s order with an appeal to the Eighth Circuit Court of Appeals. They asked the higher court to block the ATF’s rule during their appeal.

“The rule will cover 99% of braced pistols, eliminate 750,000 firearms, cost private parties $5 billion and shutter four-of-five brace manufacturers,” reads the states’ Oct. 10 motion asking the Eighth Circuit to pause enforcement of the rule. “That includes commercial appellants in this case who waited seven months for the district court to rule on their motion for preliminary relief, while watching their sales evaporate, laying off employees and attempting to stave off financial ruin.”

Jeff Creamer, chief executive officer of SB Tactical, submitted an affidavit alongside this argument, saying the company’s sales crashed after the ATF issued its rule Jan. 31, 2023.

The company’s brace sales have plummeted by 97%, it is enduring a net monthly loss of $157,374 and has laid off at least a quarter of its workforce, the affidavit says.

Residents of the 25 states in the appeal have also “had to choose between complying with the unlawful rule or risking federal criminal prosecution,” says the filing.

However, a Fifth Circuit Court is keeping the braces legal for now with its own injunction.

One Sentence

The Eight Circuit responded Tuesday with a one-sentence order denying the appellants’ request: “The motion for injunction pending appeal is denied.”

It came in response not only to the appellants’ 23-page request, but also to the federal government’s 22-page filing opposing that request.

The federal government’s filing calls any damages the rule has caused to companies or individuals “minimal,” and says the danger of having a pistol one can fire from one’s shoulder outweighs those damages.

The government contends that the ATF’s rule is lawful and interpretive. The rule is rooted in the gangster-era National Firearms Act of 1934, which outlawed short-barreled rifles or required the rifles’ owners to register them.

“Though these manufacturers claim the attachments are designed to assist with one-handed firing and thus the firearms are not rifles, many braces are virtually indistinguishable from shoulder stocks and are designed to facilitate shoulder firing,” says the federal government’s Oct. 20 filing.

“The Rule is lawful, and the public interest in clarifying statutory requirements for weapons that Congress deemed particularly dangerous outweighs any minimal harms plaintiffs assert,” the filing adds.

This Team

The other states suing with Wyoming are West Virginia, North Dakota, Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, Oklahoma, South Carolina, South Dakota, Tennessee, Utah and Virginia.

The other plaintiffs are Richard Cicero, B&T USA LLC, SB Tactical, and the Firearms Regulatory Accountability Coalition.

Clair McFarland can be reached at clair@cowboystatedaily.com.

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Clair McFarland

Crime and Courts Reporter