Fifth Circuit Deals Devastating Blow to ATF’s Pistol Brace Rule

The MCX pistol with folding brace is super compact and easy to carry. IMG Jim Grant

NEW ORLEANS, Louisiana — The Fifth Circuit Court of Appeals has dealt another blow to the Biden Administration’s gun control plan by ruling against the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF) Final Rule (2021R-08F – Factoring Criteria for Firearms with Attached “Stabilizing Braces”) with one dissenting Obama-appointed judge.

In the case Mock v. Garland, the Firearms Policy Coalition (FPC) and Maxim Defense sued Attorney General Merrick Garland, the Department of Justice, and the ATF over the Biden-mandated rule that changed the definition of pistols equipped with stabilizing devices into short-barreled rifles (SBRs). Since the firearms were now considered to be SBRs by the ATF, they have subjected the guns to the National Firearms Act of 1934 (SBR) requirements.

The Plaintiffs initially lost their challenge to the rule in the District Court before winning an injunction in the Fifth Circuit Court of Appeals. On the District Court level, this victory was followed by other preliminary injunctions won by the Second Amendment Foundation (SAF) and Gun Owners of America (GOA).

The Circuit Court ruled that the ATF violated likely violated the Administrative Procedures Act (APA) when issuing the rule. The court highlighted that the rule resembled legislation more than an interpretation of the law. The Fifth Circuit Court cites that the Final Rule has the force of law.

“The ATF incorrectly maintains that the Final Rule is merely interpretive, not legislative, and thus not subject to the logical-outgrowth test,” writes Judge Jerry E. Smith. “The Final Rule affects individual rights, speaks with the force of law, and significantly implicates private interests. Thus, it is legislative in character. Then, because the Final Rule bears almost no resemblance in manner or kind to the Proposed Rule, the Final Rule fails the logical-outgrowth test and violates the APA.”

The Proposed Rule had a point-based system to determine if a device was a stabilizing brace or stock. Hundreds of thousands of Americans voiced their concerns over the rule during the open comment period. Many of the comments spoke directly to the point system. The ATF would unveil its new rule without the point system, or any other factoring criteria laid out in the Proposed Rule, thus invalidating criticisms while denying the public a chance to comment on the actual factoring criteria. Many believed that the ATF pulled a bait-and-switch on the gun-owning public.

The court found that the Plaintiffs were likely to succeed on the merits of the case but did not touch on the constitutionality of the Final Rule but only concentrated on the APA violations. The Fifth Circuit remanded the case back down to the District Court level and gave Judge Reed O’Conner 60 days to reexamine the other factors.

FPC celebrated the victory and is optimistic about the gun group’s chances of winning a permanent injunction once the merits are heard.

“Said in its simplest terms, the Fifth Circuit just indicated that the Plaintiffs–Firearms Policy Coalition, Maxim Defense, and FPC’s individual members–are likely to defeat ATF’s pistol brace rule when the merits of this case are finally heard,” said Cody J. Wisniewski, FPCAF’s General Counsel in a released statement. “This is a huge win for peaceable gun owners across the nation, a huge win for FPC’s members, and yet another massive defeat for ATF and this administration’s gun control agenda.”

The U.S Government is not likely to win in the Fifth Circuit if prior cases, such as the bump stock case (Cargill v. Garland), are any indication. The ATF’s only chance of victory is through the United States Supreme Court, but even that is looking less likely.

About John Crump

John is a NRA instructor and a constitutional activist. John has written about firearms, interviewed people of all walks of life, and on the Constitution. John lives in Northern Virginia with his wife and sons and can be followed on Twitter at @crumpyss, or at

John Crump