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.
The added in part will be marked in case you’ve already read this. But it was so applicable it just feel compelled to include it.
I’m having trust issues. I am beginning to think the government both state and federal doesn’t love U.S. or have our very best interests at heart. Since it’s Saturday night, I think some movies might be in order! Most of the clips are 2-3 minutes. The longer ones are the one about the DMED with Attorney Tom Renz testifying, it’s a hyperlink and about 7 minutes long. He so rocks. The final one by Dr. Lawrie is 4 minutes.
For example, we’ve been pounded that the experimental gene therapy injections were safe and effective and if you didn’t take them you are putting the entire planet at risk. And one MN Senator is still chirping “Safe and Effective”
But apparently the death dart (developed and deployed by the DOD) is just the warm up. Demoncrats are standing at the ready. Probably waiting for the WHO pandemic treaty to be signed in a couple of months.
It’s almost like Fauxci has some other plan in place, right? I’ve tried to start this at 3:40 in so you won’t be subjected to any more Fauxci than necessary. But I found this part interesting. Also interesting that we taxpayers pay for Pravda Broadcasting System.
Edit/Add in:
If you had always wondered about how the country came to be locked down, the Brownstone institute just came out with an article on the time line and who was involved in convincing President Trump to shut U.S. down, because initially, he wasn’t going to do that. Typical bad actors like #PenceOfCrap, Fauxci and Birx, but it’s interesting. How They Convinced Trump to Lock Down
But this, this is the real reason I’m updating this column. I was happily listening to an Irish History podcast after I finished this article and had it up. Computer shut down for the night, supper finally awaiting me. This podcast was on the life of Dennis Doherty, a man who originally enlisted in the British army (he shoulda known better) to escape starvation in Ireland as many young lads did. He spent the next 45 years or so trying to escape prison. If you want to listen to the about 30 minute podcast I’m going to give the link. This podcast was done on May 12, 2013. Yes, it matters. Long before the rise of the cult Covidian. One of the prisons he wound up in was in Port Arthur in Tasmania. It’s what was known as a “model prison” with the goal of reforming the prisoners by breaking them down. Dennis had a penchant for trying to escape prison you see, what with a desire for freedom and all. But the treatment the prisoners received in the “model prison” was what dropped my jaw. This would have been somewhere between 1858-1863. No that’s not a typo, I mean well over a hundred years ago. The prisoners were kept in strict isolation. If they were allowed out of their cells they were to maintain 4.5 meters of space from everyone and they had to have their faces covered with a cloth mask at all times. Prisoners were only referred to by their prison number, not their name. The result? Many of the prisoners went insane. Isn’t that fascinating. This isn’t knew knowledge, they knew the results of these policies. This podcast is 10 years old. Not new knowledge. I hope ya’ll don’t mind this add in.
And what were some of the consequences of the seizure of citizen’s rights during the plandemic? Well, obvious one is freedom of speech. Doctors that tried to speak out and let people know there was cheap, readily available treatment that could have saved lives were muzzled and silenced.
If only Dr. Fauxci had watched Little House on the Prairie. I mean it was common enough knowledge to be in a TV show in what? The 80s?
See freedom of speech, even if it doesn’t concern health is a privilege for some, not for all.
A man may be going to jail because he made Hillary Clintoon memes. One must not make fun of Demoncrat royalty, doncha know.
Who else doesn’t have freedom of the press or the right to speak out? Today News Africa reporter Simon Ateba who was shut down when he asked a news question in the White House press briefing. How dare he. Cringe Jean-Pierre shut him down but quick.
If you are a conservative group like the Stanford Law School’s chapter of the Federalist Society and you invite a federal judge to speak, the spoiled children who don’t allow opinions other than their own will shout him down. Then the snowflakes can take over the room, wait for their diversity, equity and inclusion (who really don’t include much of anyone) dean to come in an harangue an invited guest. These are law school students. Defiant Stanford DEI dean doubles down, BRAGS about harassment of federal judge. So help me, if I ever need a lawyer again I’m asking them where they went to school. If it’s Stanford? Forget it.
What kind of “free speech” do the leftist loons that run our schools of higher education allow?
So what’s the result of a poor quality legal education?
So what is a Brady motion? If only Xiden’s box checking candidate had gone to school with Vinny, right? Seems Xiden’s most diverse ever nominees and cabinet have an under represented demographic. The Competent. His SCOTUS nominee is so stupid she doesn’t even know what a woman is, and she is one. Of course the left are trying to get rid of women now, just like they’ve been trying to get rid of masculine men for ages now. But I digress.
Now knowing what a Brady motion is, “they have to tell you”. I think we can begin to see that there must be many Stanford graduates already in the legal system.
And this “Judge” says he’s never dealt with a Brady motion. Wow. As all those poor political prisoners are being held and denied their rights.
So as long as we’re on the Justice/Injustice system, the two tiered justice system we are dealing with, how’s about that? Seems like there are two sets of rules.
Guns are okay, for some people. Because some animals are more equal than others, right? National Pravda Radio, we’re financing them.
And the ATF isn’t even elected. Some are calling them on the actions they’ve taken on the stabilizer braces.
I think I’ve plenty of reasons to have trust issues. The last video I will leave you with is a reading by Dr. Tess Lawrie. Mistakes Were NOT Made: An Anthem for Justice (by Margaret Anna Alice; Read by Dr. Tess Lawrie) at 4 minutes long, it’s worth every one of them. Dr. Lawrie is one of the heroes of the Covid wars.
The editorial board of the Dallas Morning News published an opinion piece on why those nasty pistol braces need to be banned. Their… reasoning stops short of informed rationality. For instance:
There’s no difference between the business end of a rifle and a handgun of the same caliber.
Perhaps they’d consider changing that to “cartridge” instead of “caliber.” Otherwise — and ignoring the effect of barrel length on ballistics — they’re saying that a little .22LR revolver is the same as a AR-pattern rifle chambered for 5.56 NATO. They’re both .22 caliber, after all.
But this one…
But shorter barrels make guns less accurate and easier to conceal. They also make them easier to maneuver in crowded places, which may be why shooters in at least two mass murders — at a grocery store in Boulder in 2021, and a busy street in Dayton in 2019 — used handgun braces.
This first part is a gross over-simplification. Assuming either pistol or rifle has enough barrel length for the bullet to spin stabilize, and not so much length as to sap energy through friction, inherent accuracy isn’t that different. If one is using iron sights, the difference in sight radius can make longer barrel eaiser to fire accurately; but that’s an issue with the shooter, not the firearm.
The second part, regarding concealability and maneuverability is hilarious.
Take a pistol, say an AR-pattern pistol with a ten inch barrel. Now add a stabilizing brace to it — making it longer — and now it’s more concealable?
Since the board is concerned with accuracy, you might even think they’s approve of a braced pistol, said brace making it easier for the shooter to fire accurately.
But do you know what is even more concealable, and “maneuverable in crowded spaces,” than a short-barrel rifle or a braced pistol? Basically any conventional unbraced handgun in the world. Could that be why those are used in the vast majority of shootings, mass or otherwise?
Carl is an unpaid TZP volunteer. If you found this post useful, please consider dropping something in his tip jar. He could really use the money, what with ISP bills, site hosting and SSL certificate, new 2021 model hip, and general life expenses. Gab Pay link
(More Tip Jar Options)
Yes, once again — as they did with the bump-fire stock NPRM and the “ghost gun/frame/receiver NPRM — the ATF published docket ATF 2021R-08, took comments, then deleted that docket, and opened newdocket ATF-2021-0002without the old comments. This appears to violate the Administrative Procedures Act. It also appears — due the regularity with which they do this — to be a deliberate attempt to discourage public comment on legally dubious proposed rules. The ATF publishes, the hardcore Second Amendment advocates rush to comment and publicize the NPRM so more people will comment…
And when they try, the publicized link is dead. Some will be sufficiently dedicated to search out the new docket. Others may assume the docket wasn’t real and never comment. Those who had commented may never check back (something TZP has learned to do), and discover their comments are gone; possibly never to be transferred over to the new docket.
But for now new docket ATF-2021-0002 is there. Please comment; be sure to click the “Opt to receive email confirmation” box so you get verification of your Comment Tracking Number. Bookmark the docket so you can can go back to check it (and your comment’s) status.
Comments are due by September 8, 2021.
The Zelman Partisans submitted this comment.
Comment Tracking Number: kpq-zrva-s2yf
The Zelman Partisans oppose this proposed rule.
This proposed rule is an incoherently expressed description of an arbitrary, capricious, and incoherent process of classifying firearms.
As no standards were given, a subjective examiner’s guesstimate of “rear surface area” could pass a brace, or put it right on the edge of alleged short-barreled rifle by itself. Will one examiner estimate the “rear surface area” of a cuff-type brace by the physical area of the rear EDGE of the cuff, while another goes by the area of the space ENCLOSED by the cuff?
“Length of pull” presupposes that all braced pistols are SBRs until proven otherwise. The restriction on brace length would make it a one-size-fits some piece of junk. A brace properly fitted for a large male would be unworkable for a smaller female. Defensive firearms are commonly purchased with shared use by family members in mind.
Also, it appears that the ATF is unaware of braced pistols that are not AR-type. The attachment evaluation assumes an AR-type buffer tube. The weight and overall length exclude the entire class of drop-in pistols braces, such as for Glocks. The rule is silent on those. Is the braced Glock automatically an SBR because it fail the 4999 Section tests? Or would the chassis resembling a carbine NEVER be a rifle?
And why would flip-up iron sights (which one might well want for storage and transport) make a pistol into a rifle?
Because the 4999 “test” requires that any specific pistol-brace combination be evaluated in whole, rather than evaluating the BRACE itself, none of the millions of owners of braced pistols currently in existence can know whether their equipment has the a ATF’s dubious blessing, or requires NFA registration. This proposed rule thus puts those millions in danger of unwitting felonhood. The only legal option is those MILLIONS to flood the The Firearms and Ammunition Technology Division with MILLIONS of firearms for evaluation, depriving them of their property for years as the FATD struggles with the backlog.
We think the ATF will need to go on a hiring spree, for examiners. And when MILLIONS of newly-annointed “short-barreled rifles” are created by fiat, the tax stamp backlog will be amazing.
Additionally, one should recall that braces were first designed for handicapped people. This proposed rule would appear to put the ATF in conflict with the Americans with Disabilities Act of 1990. Expect to be sued.
We think the Department of Justice will need to hire more lawyers.
This collection of follies could have been avoided by adopting a sane definition of stabilizing brace: “A device designed to aid a user in holding a large pistol with one hand, which extends no further than the user’s forearm when gripping the firearm normally, and which conforms to the user’s forearm.”
The Zelman Partisans also note that once again the ATF has violated the Administrative Procedures Act by opening docket 2021R-08, taking comments on that docket, DELETING it, and opening new docket ATF-2021-0002 without the old docket comments. The ATF does this on such a regular basis that we believe it is a deliberate attempt to discourage public comment on legally dubious proposed rules.
Jews. Guns. No compromise. No surrender.
Password Reset
Please enter your e-mail address. You will receive a new password via e-mail.
