Summary
➡ The ATF’s reinterpretation of the NFA has resulted in the criminal liability of braced firearm owners, with an 8% registration compliance highlighting widespread lack of knowledge about this change. The validity of this reinterpretation has been significantly challenged, eventually concluding in a court ruling, stating that brace pistols, rightfully owned for self-defense, cannot be deemed unregistered SBRs. The court also rules that the ATF’s assertion of such pistols becoming dangerous when braces are attached is unsupported by their own administrative record.
➡ The court decision affirms that the possession and use of brace pistols are protected under the Second Amendment. It emphasizes that modifications to increase pistols’ accuracy and safety for self-defense are an extension of an individual’s right to possess and carry weaponry, and therefore, legislation against such modifications is unconstitutional. This decision covers all members of the Firearms Policy Coalition and any downstream customers of defense industries, alongside specific plaintiffs Mock and Lewis.
Transcript
And Judge Reed O’Connor decimates the ATF, and we learn how many people or what percentage of people complied with the rule as well. Before I get into it, I want to thank the sponsor of the video, and that’s Lear Capital. As many of you know, I am very particular at who sponsors this show. And I want you to know that I choose Lear Capital because they are aligned with American values and their priority is to help educate and inform people, you and I, on what’s happening in not only just politics, but the economy as well, and how to protect and preserve the wealth you already have.
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I’m going to tell you that the injunction was reinstituted, and part of it we’re going to love, most of it we’re going to love, part of it we’re not. But what Judge Reed O’Connor puts in this order, what he wrote, is huge. It has great implications on things like the NFA, it has great implications on things like SBRs, and it could have great implications on assault weapon bans in states going forward.
I have a lot to show you because there’s a lot of great information here. Without further ado, let’s get into it. We should know this case by now, but it’s Mock v. Garland, and this is a Firearms Policy Coalition case. It’s in the Northern District of Texas in Fort Worth. And it’s in front of Judge RIT O’Connor. It says before the court are Firearms Policy Coalition, Inc. William T.
Mock, christopher Lewis and Maxim defense Industries. Plaintiff’s motion for preliminary injunction filed February 21 of 2023 and August 18 of 2023. The Attorney General of the United States, the United States Department of justice, the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives and the Bureau of Alcohol, Tobacco, Firearms and Explosives response in opposition to the plaintiff’s motion filed on March 10 of 23 and September 1 of 23 and plaintiffs replies filed March 17 of 23 and September eigth of 23 Having considered the party’s briefing and applicable law, the Court grants plaintiffs motion for preliminary injunction against the government defendants.
Now comes some of the meat and potatoes of this ruling. Yeah, I could do a short video saying, hey, Judge Rito Connor said, yes, we have a preliminary injunction, but you need to know what he said, because it is like Second Amendment sensuality on paper. That’s a new one. Here we go. Since 2012, the ATF has seen a proliferation of stabilizing brace devices, which were originally designed to assist people with disabilities or limited strength or mobility to safely and single handedly fire heavy pistols.
With time, the devices began to include characteristics resembling shoulder stalks, and the ATF soon learned that manufacturers were widely marketing these braces to consumers as a means of creating functional short barreled rifles that avoid the National Firearms Act requirements. In response to this trend, the ATF published a notice of proposed rulemaking in June of 2021, which proposed amendments to 27 CFR 478 Eleven and 479 Eleven, and identified criteria by which the ATF would determine whether a weapon was a rifle for purposes of the NFA and GCA.
After receiving more than 230,000 public comments on the Notice of Proposed rulemaking, the ATF published the final rule on January 31, 2023, factoring Criteria for Firearms with attached Stabilizing Braces. Consequently, the final rule modified the ATF’s earlier regulations addressing how the agency would determine whether a weapon is a rifle for purposes under the NFA and GCA. Specifically, the final rule indicates that ATF interprets the phrase designed or redesigned, made or remade and intended to be fired from the shoulder to include, and this is important, a weapon that is equipped with an accessory component or other rearward attachment.
Example, a stabilizing brace that provides surface area that allows the weapon to be fired from the shoulder, provided other factors indicate that the weapon is designed, made, and intended to be fired from the shoulder. Other factors relevant to ATF’s determination are one, whether the weapon has a weight or length consistent with the weight or length of similarly designed rifles. Very vague. Number two, whether the weapon has a length of pull measured from the center of the trigger to the center of the shoulder stock or other rearward accessory component or attachment, including an adjustable or telescoping attachment with the ability to lock into various positions along the buffer, tube, receiver extension or other attachment method that is consistent with similarly designed rifles.
Again, very, very vague. Number three, whether the weapon is equipped with sights or a scope with eye relief that require the weapon be fired from the shoulder in order to be used as designed. That’s very subjective. Four, whether the surface area that allows the weapon to be fired from the shoulder is created by the buffer, tube, receiver extension, or any other accessory, component, or other rearward attachment that is necessary for the cycle of operations.
Five, the manufacturer’s direct and indirect marketing and promotional materials indicating the intended use of the weapon. That’s the First Amendment. And six, information demonstrating the likely use of the weapon in the general community. 1984 type stuff. While the notice of proposed rulemaking had proposed the Table Worksheet 49 99, the judge threw an extra nine in there, allotting points for specific criteria. The final rule did not implement the weighted point system.
The final rule took effect immediately for newly made or transferred firearms, while individuals already in possession of subject firearms were given a 120 day registration period ending May 31 of 2023 to come into compliance with the final rule before the ATF began enforcing it. For those in previous lawful possession of subject firearms that declined to register them by May 31 shall not comply. The ATF demanded that before the registration window closed, they must have otherwise removed the barrels from the firearms and attached a 16 inch or longer barrel in their place, permanently altered or disposed of their stabilizing brace so that they could never be reattached to their firearms, divested themselves of the firearms by turning them into the ATF or permanently destroyed their firearms.
Wait till you see how many people actually did this stuff. But even despite laying out these alternative directives for firearm owners, the ATF shortly thereafter explained that it is still entirely plausible for none of these measures to suffice for compliance. To illustrate, the final rule specifies that a firearm owner can still be criminally charged under the NFA for constructively possessing an unregistered short barrel rifle if their pistol could be combined with any number of objects that the ATF believes are demonstrative of a firearm’s design for shoulder fire.
The set of subjective criteria the ATF lists for potential constructive possession of an NFA rifle comprises open ended, broadly articulated standards that are left largely undefined or underdeterminate. The ATF has a decades long history of pressing regulatory enforcement actions based on its own constructive possession theories. In other NFA contexts where the mere ease of creation of a subject firearm has been sufficient to support criminal liability for firearm owners under the NFA, the ATF barred compliance registration anytime after May 31, whereupon anyone still in possession of a braced firearm that did not submit to registration was then deemed overnight to have become a felon in possession of an unregistered NFA rifle.
So too, it has since no longer been the case that any of the alternative compliance measures enumerated by, ATF example, barrel replacement, brace disposal or modification, firearm divesture or destruction will suffice for avoiding criminal prosecution under the NFA through the final rules reinterpretation of it. Following the closing of its registration window, the ATF reported that its registration compliance rate is a mere 8%. According to the higher end of its estimates, only 8% of the millions and millions of braced firearms were registered under this window.
Liability under the federal firearm laws and regulations adopted pursuant thereto carries serious penalties. For example, a violation of the Gun Control Act subjects a person to fines and a five year maximum prison term. A violation of the NFA subjects a person to fines and a statutory maximum sentence of ten years imprisonment. On top of that, NFA liability exposes one to seizure and forfeiture of their firearms, an assessment of tax liabilities, hefty fines extending into the hundreds of thousands of dollars, and a total ban on ownership of any and all firearms for life.
This judge is starting to lay into them, and trust me, it gets better. Stay with me. Here’s a quick procedural timeline for those who are new to this case. There are millions of people who did not know this was even happening. A quick refresher, and then the ass kicking commences. The procedural History the plaintiffs filed this lawsuit on the day the final rule was announced. Three weeks later, on February 21, of 23 plaintiffs moved the court for a preliminary injunction against the government defendant’s enforcement of the final rule.
Plaintiffs challenged the validity of the final rule on several grounds. One, that it infringes on the individual Firearms Policy coalition members Second Amendment rights. Two, that it violates the First Amendment by chilling speech. Three, that it runs afoul. Of the fifth amendment’s due process guarantee four, that it violates structural power vesting provisions of the constitution five, that it violates the administrative procedure act as it was issued in excess of ATF statutory authority and six, that it violates the APA’s procedural requirements because it was not a logical outgrowth of the proposed rule.
On March 30, 2003, the court denied the plaintiff’s motion for preliminary injunction on grounds that the plaintiffs had failed to demonstrate a substantial likelihood of success on the merits of any of their claims. On August 123, the United States Court of Appeals for the Fifth Circuit reversed the court’s order denying a preliminary injunction and decided in favor of the plaintiff’s logical outgrowth APA claim, holding that one, it is relatively straightforward that the final rule was not a logical outgrowth of the proposed rule and the monumental error was prejudicial.
And that two, the final rule, therefore, must be set aside as unlawful. The Fifth Circuit remanded the case back to the court with instructions to assess the remaining preliminary injunction factors and rule on plaintiff’s motion. In light of the circuit panel’s decision, and within 60 days thereof, the Fifth Circuit placed no limitation on the matters that the court may address on remand and no indication of what decisions it should reach following the party’s completion of supplemental briefing.
An additional briefing from the Palmeto State Armory, the Firearms Regulatory Accountability Coalition, Inc. That’s Frac and NST Global LLC, which is doing business as SB tactical as Amiki cure. The plaintiff’s motion is now ripe for the court’s review on remand. The court finds that Mock, Lewis and other individual FPC members are threatened with irreparable injuries in the absence of an injunction. The threats to the individual FPC members are twofold one, sustaining permanent and non recoverable costs from their compliance with an unlawfully issued regulation and two, suffering impairment of their fundamental right to keep and bear lawful arms in self defense.
The court finds that such threats of irreparable harm posed by enforcement of the final rule are credible, imminent and intertwined with one another. As the record currently stands, Mock and Lewis each lawfully possess at least one pistol with a stabilizing brace attached to it, which was acquired through lawful means prior to the ATF’s promulgation of the final rule. Mock and Lewis have maintained and used and continue to maintain and use each of their braced pistols for the primary purpose of general self defense and self defense in the home.
Plaintiffs each maintain a stabilizing brace attached to their pistols as an effective tool for improving their capacity to defend their lives, their families lives and their homes through safer and more efficient means. The attached braces foster greater stability, control and precision in the firing of plaintiffs pistols so as to enable them to more easily and comfortably accomplish the narrow end goals of self defense. That is, to deter or neutralize life threatening perpetrators, preserve innocent life and, as best as possible prevent or mitigate the degree of bodily injury suffered by others in so enabling a more proficient and exacting performance of self defense.
The attributes provided by the stabilizing brace to the plaintiff’s lawfully owned defense weapons significantly lessen the cause for lethal or irreversible misfire friendly fire or other collateral damage, as well as the probability of being outmatched by or falling victim to dangerous assailants. It is purely for these reasons that Mock and Lewis also plan to purchase additional brace pistols at this immediate point in time to aid their self defense and home defense capabilities.
The ATF’s own regulatory analysis concludes that the final rule has effectively reclassified 99% of all pistols with stabilizing braces to NFA rifles. Through seminal final rule adjudications, the ATF has already reclassified a whole host of specific weapon platforms and commercially available braced firearms to NFA rifles. Upon review of this record, in conjunction with plaintiff’s declarations, there is no doubt that the final rule will subject both FPC members to criminal liability for currently possessing each of their braced pistols.
The moment the Fifth Circuit’s injunction dissolves, mock and Lewis will become felons because their braced pistols have become unregistered SBRs under the final rules, reinterpretation of the NFA. Little wordy, I know, but I wanted to set that up. The court is saying that these braces make people more accurate. It makes the gun safer. It minimizes risks to others. This is not a bad thing. And then they talk about the Second Amendment, and they kick the ATF’s ass.
Under Heller, Katano, and Bruin. Check it out. Weapons in Common Use the Second Amendment prohibits government from infringing upon an individual’s right to keep and bear arms for self defense, and that’s the New York State Rifle and Pistol Association versus Bruin. It’s also cited in McDonald the City of Chicago, which applied the Second Amendment to the states. This protects an individual’s possession and use of weapons that are in common use at the present time, citing Heller.
Conversely, protection is not extended to possession or use of dangerous and unusual weapons. A weapon is in common use rather than dangerous and unusual if it is commonly possessed by law abiding citizens for lawful purposes today, and that’s Keitano the relevant inquiry under this standard is the current total number of a particular weapon that is in lawful possession, ownership, and circulation throughout the United States. As a per se matter, semiautomatic pistols are commonly used for lawful self defense purposes across the United States today.
The court finds that the braced pistols, subject to enforcement of the final rule, are in common use today. For starters, it is undisputed that pistols such as those in the FPC members’possession are on their own and without stabilizing braces already deemed to be among the weapons most commonly used today for lawful self defense. ATF agrees that the weapons here are lawfully bearable pistols absent a rearward attachment. These pistols are therefore lawful.
A stabilizing brace does not somehow alter the status and effectively strip these pistols of their Second Amendment protection. The government defendant’s assertion to the contrary, that pistols do become dangerous and unusual as soon as stabilizing braces are attached to them does not survive its own administrative record. The ATF’s regulatory analysis concludes that there are between three and 7 million, with a 50 percentile estimate of 5 million braced pistols under the ownership of law abiding individuals for lawful purposes throughout the United States.
In the final rule publication as well, ATF did not dispute noteworthy public comments, pointing out that millions of braces are in use and that braced pistols are commonly used by millions of law abiding Americans for various reasons. On the other hand, ATF even concluded that since 2012, the variety of available stabilizing braces or similar brace devices and pistols equipped with braces has grown significantly. The Supreme Court guidance and sister circuit precedent postulate that this record is dispositive of the matter.
Accordingly, the court finds that brace pistols regulated under the final rule are commonly used by law abiding citizens for lawful purposes. The FPC members’possession and use of brace pistols is therefore within the ambit of Second Amendment protection. Yeah, buddy. The judge just said that all of the brace pistols are in common use, and the ATF even said it in the final rule. But wait, there’s more. Let’s go to presumptively protected conduct.
When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct from the regulation at issue. Thanks to Bruin, we know that and know it well. Under this inquiry, the court assesses whether the plain text of the Second Amendment protects MOX and Lewis’s proposed course of conduct with respect to their brace pistols. An assessment of the Second Amendment’s plain text must rely on history to guide and inform its meaning.
Notwithstanding adverse enforcement action under the final rule or the threat thereof, each FPC member’s proposed course of conduct is to maintain the possession and use of a pistol with an attached stabilizing brace for purposes of effective self defense, both inside and outside the home. The Supreme Court has already established that the text and history of the Second Amendment’s operative clause, the right of the people to keep and bear arms protects an individual’s right to possess, carry, and operate a commonly used handgun in the home and in public for the lawful purpose of immediate self defense.
As such, the Second Amendment presumptively guarantees plaintiffs Mock and Lewis the right to keep and bear braced and unbraced pistol arms at home and in public for general self defense. The Second Amendment also presumptively protects the FPC member’s proposed course of conduct, insofar that it involves making common safety, improving modifications to otherwise lawfully bearable arms for the purpose of enhancing the performance of self defense guys, the ATF’s getting destroyed, and it keeps going.
The conduct of acquiring, attaching, and maintaining rearward attachments, such as a stabilizing brace, serves to make the pistol more stable and thus the user more accurate. As explained earlier, accuracy in turn, promotes safety in the real life exercise of armed self defense. The successful performance of armed self defense entails not only deterring or neutralizing life threatening perpetrators, but also preserving innocent life and preventing bodily injury to others as much as possible.
Users directly advance these fundamental ends of self defense when they modify lawfully bearable pistols with a rearward attachment, whether as a brace or a stalk. Did you just pick that up? Let me say it again users directly advance these fundamental ends of self defense when they modify lawfully bearable pistols with a rearward attachment, whether as a brace or a stock. The NFA is in trouble. The increased control and precision to pistol fire materially lowers the probability of potentially lethal misfire and collateral damage, as well as being outmatched by or falling victim to dangerous assailants.
Such safety improving modifications are especially critical for permitting disabled and weaker persons to fire pistols more easily and more safely and comfortably to accomplish a more proficient and exacting self defense. The history interwoven with the right of the people to keep in bare arms indicates that the Second Amendment’s text has long incorporated the right of personal gunsmithing I. E. The right of private individuals to modify or acquire modifications to lawfully bearable firearms so as to increase their accuracy and safety for a more effective exercise of self defense.
For example, in order to sustain themselves against a large and wellsupplied British military throughout the Revolutionary War, the Americans relied on gunsmiths, individuals with know how from working on their own arms, and Americans who were willing to learn the art of arms manufacturing. Analogous to the role that stabilizing braces play for contemporary pistol owners, founding era gunsmiths involve modifying lawfully bearable pistols with extended grips and rearward stalks to facilitate greater stability, control and accuracy in single handed self defense fire.
The court is persuaded upon this record that the Second Amendment’s text in history presumptively guarantees plaintiffs mock N. Lewis the right to modify lawfully bearable pistol arms with reward stabilizing braces for the purposes of improving the performance attributes necessary to successful armed self defense. Consequently, the court finds that the proposed conduct of the FPC members I. E. Possessing and using a stabilizing braced pistol for enhanced self defense capabilities in the home and in public is presumptively protected by the Second Amendment from the interference of disagreeing restrictions in the final rule.
Y’all Judge O’Connor is beating them and beating them and beating them. I told you there was a part we weren’t going to like. Here’s this part and then we’re going to get back to the part when we smile again. The court declines plaintiff’s invitation to extend the scope of the injunctive relief nationwide injunctive relief, reflecting that previously afforded by the Fifth Circuit to plaintiffs is sufficiently limited to not provide relief beyond the parties of the case, while also affording sufficient relief to meet each plaintiff’s present needs.
Here’s the solid by the judge conclusion, the court holds that each plaintiff has demonstrated entitlement to preliminary injunctive relief against the government defendant’s enforcement of the final rule, and that the United States Court of appeals for the Fifth Circuit determined to be invalid under the Administrative Procedure Act. For the foregoing reasons, the court grants the motion for a preliminary injunction. Accordingly, the court orders that the government defendants, the Attorney General of the United States, the United States Department of justice, the Director of the ATF, and the ATF, and each of their respective officers, agents, servants, and employees are hereby.
One enjoined from implementing and or enforcing against the Firearms Policy Coalition and all of its members the provisions in 27 CFR 478 Eleven and 479 Eleven that the United States Court of Appeals for the Fifth Circuit has determined are unlawful. So all FPC members are covered by this continuing injunction. Two enjoined from implementing and or enforcing against Maxim Defense Industries, LLC and any downstream customers of maxim defense Industries, including all direct consumer purchasers and all intermediary, distributors, dealers, retailers, and OEM purchasers of maximum defense products and any of their respective customers the provisions of the same rule.
Three enjoined from implementing and or enforcing against William T. Mock and any of his family members the provisions of that rule, and four enjoined from implementing or enforcing against Christopher Lewis and his family members anything in that rule. The injunctive relief shall not extend to any individual prohibited from possessing firearms under 18 USC. 922 G that’s being challenged in court. Anyway, the injunctive relief shall take effect immediately and remain in effect pending the conclusion and final disposition of all claims and causes of action before the court in these review proceedings, the court waives the security requirement as well.
So ordered. On this second day of October, 2023. Judge Reed O’Connor, Fifth Circuit. Thank you, Judge. The ATF just got destroyed in court. Absolutely destroyed. And we should lower the flags to half mass for them because they got killed in this one. Guys and gals, if you’re a member of Fires Policy Coalition, you’re covered. Now, I know everybody’s saying, what if I’m an SAF member? What if I’m an FPC member? I assume today they will be following up in the Fifth to get their injunctions continued as well.
And they’re going to cite this ruling that I just showed you some parts. This ruling is 38 pages, and I got up at read it all morning long, and I’m bringing it to you. So this is breaking news. Judge RIT O’Connor has filleted the ATF. Congratulations to FPC and to Mock and Lewis, as well as Maxim defense and to all FPC members like myself. I appreciate y’all share this like this YouTube’s gonna stop this cold, just like they’ve been doing to my channel for two weeks.
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