There’s a little more good news regarding the ATF’s unlawful and unconstitutional pistol brace rule. Another federal judge has issued an injunction against enforcement of the rule in Britto v. ATF, No. 2:23-cv-19, in the Northern District of Texas.

The good news:

Under the APA, courts must “hold unlawful and set aside agency action, findings, and conclusions found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” or “in excess of statutory jurisdictions, authority, or limitations, or short of statutory right.”

Arbitrary and capricious? Most definitely, as The Zelman Partisans told the ATF during NPRM commenting period.

This proposed rule is a coherently expressed description of an arbitrary, capricious, and incoherent process of classifying firearms.

They should have listened.

But back to the injunction. Kacsmaryk cites the Fifth Circuit’s ruling in Mock v. Garland, which found the rule to violate the Administrative Procedures Act, resulting in an injunction against enforcement of the rule, but only for the plaintiffs in that case

Given the Fifth Circuit’s holding, this Court recognizes that the Rule “was not a logical outgrowth of the Proposed Rule” and “must be set aside as unlawful.

That was the good news. The Rule is unlawful because the ATF violated the Administrative Procedures Act (which is something of a habit for them). Better news: the injunction is nationwide and not limited to the plaintiffs in this case.

The bad news…

That holding alone establishes that Plaintiffs “have demonstrated, a fortiori, an actual success on the merits of their APA challenge to the … Rule.”

It goes without saying that constitutional questions should be avoided if there are independent ‘ground[s] upon which the case may be disposed of.”

No, it should not go without saying. Why does statutory law — the APA, in this case — take precedence over the Constitution and Second Amendment, the question of which the plaintiffs definitely raised?

Laziness, and fear of dealing with constitutionality until absolutely forced to do so. Which conveniently leaves the ATF free to try yet another unconstitutional rule, until some judge finally decides to take note of said Constitution.

And as Judge Tipton noted in a similar case, “it would be improper for this Court to now evaluate constitutional issues” given that “the Fifth Circuit has already decided that the Final Rule violates the APA.”

Grow some balls, Kacsmaryk. Give us a constitutionality precedent, one way or the other.