We did.
The Eighth Circuit has tossed the ATF’s pistol brace rule. The Court didn’t bother addressing the Administrative Procedures Act violations, because they found that another element of the challenge to the rule sufficed all by itself. The decision is thirty-three pages, but this one little excerpt pretty much summarizes it.
Thus, the Coalition is likely to succeed on the merits of its argument that this step is arbitrary and capricious; the ATF “has articulated no standard whatsoever for determining” when a stabilizing brace’s rear surface area would allow the shouldering of a weapon.
Huh; “arbitrary and capricious.” Where have I heard that before? Oh, yeah; in The Zelman Partisans’ original comment of the Notice of Proposed Rule-Making, more than three years ago.
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?
We could have saved a lot of time and money if the ATF jackbooters had simply taken note of that at the time. But the ATF livesd for — and on — “arbitrary and capricious.” As backed up with Chevron deference, which the courts have also taken away from them.
