Case: 23-10319 Document: 00516842296 Page: 1 Date Filed: 08/01/2023
`
`United States Court of Appeals
`for the Fifth Circuit
`____________
`
`No. 23-10319
`____________
`
`William T. Mock; Christopher Lewis; Firearms Policy
`Coalition, Incorporated, a nonprofit corporation;
`Maxim Defense Industries, L.L.C.,
`
`
`United States Court of Appeals
`Fifth Circuit
`
`FILED
`August 1, 2023
`
`Lyle W. Cayce
`Clerk
`
`Plaintiffs—Appellants,
`
`
`
`versus
`
`
`Merrick Garland, U.S. Attorney General,
`in his official capacity as Attorney General of the United States;
`United States Department of Justice;
`Bureau of Alcohol, Tobacco, Firearms, and Explosives;
`Steven Dettelbach, in his official capacity
` as the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives,
`
`
`Defendants—Appellees.
`______________________________
`
`
`
`Appeal from the United States District Court
`for the Northern District of Texas
`USDC No. 4:23-CV-95
`______________________________
`
`
`Before Smith, Higginson, and Willett, Circuit Judges.
`Jerry E. Smith, Circuit Judge:
`
`The National Firearms Act of 1934 (“NFA”) and the Gun Control
`Act of 1968 (“GCA”) are two of the primary means of federal arms regula-
`tion and licensure. To that end, the statutes impose heightened, and at times,
`
`

`

`Case: 23-10319 Document: 00516842296 Page: 2 Date Filed: 08/01/2023
`
`No. 23-10319
`
`onerous requirements on manufacturing, selling, and transferring certain
`firearms, including short-barreled rifles (“SBRs”). Pistols and handguns are
`not subject to those extra requirements.
`
`In 2012, a federal firearms licensee (“FFL”) submitted a “stabilizing
`brace” for review to the Bureau of Alcohol, Tobacco, Firearms and Explo-
`sives (“ATF”) and asked whether that stabilizing brace, when attached to a
`pistol, transformed the pistol into a rifle and thus an SBR. The stabilizing
`brace was intended to attach to the forearm and, according to the licensee, to
`permit disabled and weaker persons to fire pistols more easily. Although the
`brace also could be used to shoulder the weapon, the ATF initially indicated
`that the brace did not transform the pistol into a rifle. Now, a decade later,
`the use of stabilizing braces and braced pistols has dramatically increased.
`
`So, in 2021, the ATF issued a Proposed Rule1 indicating that the
`agency would use a point system to classify a firearm with a stabilizing brace
`as either a braced pistol or a rifle. After a comment period, during which the
`agency received hundreds of thousands of negative comments, the ATF pub-
`lished the Final Rule.2
`
`The Final Rule scrapped the points-based approach of the Proposed
`Rule and, instead, instituted a six-factor balancing test considering every-
`thing from the weight of the firearm with the stabilizing brace attached to the
`prevalence of Youtubers’ demonstrating the likely use of the weapon.
`
`The Final Rule went into effect on January 31, 2023, but the ATF
`allowed a grace period of four months, which ended on May 31, 2023, giving
`
`_____________________
`
`1 Factoring Criteria for Firearms with Attached “Stabilizing Braces,” 86 Fed. Reg.
`30826 (June 10, 2021) (“Proposed Rule”).
`2 Factoring Criteria for Firearms with Attached “Stabilizing Braces,” 88 Fed. Reg.
`6478 (Jan. 31, 2023) (“Final Rule”).
`
`2
`
`

`

`Case: 23-10319 Document: 00516842296 Page: 3 Date Filed: 08/01/2023
`
`No. 23-10319
`
`owners of weapons now considered SBRs multiple options for compliance,
`including registration under the NFA, before criminal penalties would take
`effect.
`
`These plaintiffs sued for injunctive relief, alleging various statutory
`deficiencies with the process and substance of the Final Rule. They also
`brought constitutional challenges. The district court denied injunctive relief,
`and after it did not rule expeditiously on a motion for an injunction pending
`appeal, this court enjoined enforcement of the Final Rule against the named
`plaintiffs. Plaintiffs now request that we extend that interim relief.
`
`We reverse the denial of an injunction because plaintiffs will likely
`succeed on the merits of their Administrative Procedure Act (“APA”) chal-
`lenge. We remand with instruction to adjudicate the remainder of the
`preliminary-injunction factors and determine the scope of any relief.
`
`I.
`A.
`As stated, this suit is a challenge to the Final Rule, which announces
`when a device marketed as a stabilizing brace turns a pistol or handgun into a
`rifle. In most cases, such a weapon would subsequently be characterized as a
`short-barreled rifle. But examining the Final Rule, as well as the challenge to
`it, requires reviewing the text and history of the NFA and the GCA.3
`
`The NFA applies to “firearms.” 26 U.S.C. § 5861. “Firearms” is a
`term of art—one that is both highly under- and over-inclusive (as compared
`to the word’s ordinary meaning today). For instance, the NFA’s definition
`
`_____________________
`
`3 The Attorney General is authorized to administer and enforce the GCA and the
`NFA. 26 U.S.C. §§ 7801(a)(2)(A), 7805(a); 18 U.S.C. § 926(a). That authority was subse-
`quently delegated to the ATF, which promulgates the challenged rule per those Acts.
`28 C.F.R. § 0.130.
`
`3
`
`

`

`Case: 23-10319 Document: 00516842296 Page: 4 Date Filed: 08/01/2023
`
`No. 23-10319
`
`of “firearm” does not include pistols—but it does include both “silencer[s]”
`and “poison gas.” See id. § 5845(a), (e), (f). That is because the NFA was
`designed to target “gangster-type weapons” that are “especially dangerous
`and unusual.”4 Final Rule at 6482.
`
`Because of this, NFA “firearms” are extensively regulated. And
`SBRs are regulated because an NFA “firearm” includes
`
`[A] a rifle having a barrel or barrels of less than 16 inches in
`length; . . . a weapon made from a rifle if such weapon as mod-
`ified has an overall length of less than 26 inches or a barrel or
`barrels of less than 16 inches in length; . . . any other weapon,
`as defined in subsection (e); . . . .
`. . .
`(e) . . . The term “any other weapon” . . . shall not include a
`pistol or a revolver having a rifled bore . . . .
`
`26 U.S.C. § 5845(a), (e). Although the NFA does not define a “pistol,” it
`does define a “rifle”:
`
`The term “rifle” means a weapon designed or redesigned, made
`or remade, and intended to be fired from the shoulder and designed
`or redesigned and made or remade to use the energy of the ex-
`plosive in a fixed cartridge to fire only a single projectile
`through a rifled bore for each single pull of the trigger, and shall
`include any such weapon which may be readily restored to fire
`a fixed cartridge.
`
`Id. § 5845(c) (emphasis added). Putting all of that together, a weapon is a
`“rifle”—that is, either an ordinary rifle (which is not an NFA “firearm”) or
`a short-barreled rifle (which is)—only if it is “designed,” “made,” and “in-
`tended to be fired from the shoulder.” A weapon that fails any one of those
`
`_____________________
`
`4 To that end, the NFA’s definition of “firearm” also includes machineguns and
`short-barreled shotguns.
`
`4
`
`

`

`Case: 23-10319 Document: 00516842296 Page: 5 Date Filed: 08/01/2023
`
`No. 23-10319
`
`criteria is neither an ordinary rifle nor a short-barreled rifle. Ergo, a weapon
`not meeting the criteria is not a “firearm” under the NFA. A rifle is different
`from an SBR because of the length of the barrel. And the text also states that
`a “pistol” is not an NFA firearm. Nevertheless, the NFA does not define
`“pistol” or explain how to distinguish a pistol from an SBR.
`
`Enter the GCA, which supplements and is much broader than the
`
`NFA. The GCA’s definition of “firearm” includes “any weapon . . . de-
`signed . . . to expel a projectile by the action of an explosive.” 18 U.S.C.
`§ 921(a)(3). In other words, the GCA’s definition includes all “firearms”—
`in both the NFA’s specialized use of that word and the ordinary-meaning use.
`The GCA also prohibits certain persons from possessing firearms, see, e.g.,
`id. § 922(g)(1), and, as relevant here, establishes requirements for FFLs who
`wish to sell an SBR, id. § 922(a)(4), (b)(4).
`
`The definition of “rifle” is essentially identical under the NFA and
`the GCA. See 18 U.S.C. § 921(a)(7); 26 U.S.C. § 5845(c). Similarly, the def-
`initions of an SBR roughly track in both statutes, although the GCA, unlike
`the NFA, expressly defines the term. Compare 18 U.S.C. § 921(a)(8), with
`26 U.S.C. § 5845(a)(3)–(4).
`
`The GCA further defines a “handgun” as “a firearm which has a
`short stock and is designed to be held and fired by the use of a single hand”
`and “any combination of parts from which a firearm described [before] can
`be assembled.” 18 U.S.C. § 921(a)(30). Per regulations providing for ATF’s
`implementation of the NFA, the term “handgun” includes pistols and revol-
`vers. 27 C.F.R. §§ 478.11, 479.11.5
`
`_____________________
`
`5 A pistol is a “weapon originally designed, made, and intended to fire a projectile
`(bullet) from one or more barrels when held in one hand, and having: [1] a chamber(s) as
`an integral part(s) of, or permanently aligned with, the bore(s); and [2] a short stock
`designed to be gripped by one hand and at an angle to and extending below the line of the
`
`5
`
`

`

`Case: 23-10319 Document: 00516842296 Page: 6 Date Filed: 08/01/2023
`
`No. 23-10319
`
`So the main difference between rifles and handguns is the shoulder
`stock. A handgun, intended to be fired with one hand, is statutorily required
`to have a short stock and functionally does not need a longer one for recoil
`management or aim.6 Yet that statutory emphasis on a stock leads to some
`odd results: An AR-style rifle with a barrel shorter than 16 inches is subject
`to the restrictions of the NFA, while an identical AR-style pistol with similar
`dimensions but missing a shoulder stock is not.7
`
`That distinction is important. NFA-regulated firearms require regis-
`tration in the National Firearms Registration and Transfer Record, see
`26 U.S.C. § 5841(a), and are subject to stringent restrictions and require-
`ments. NFA-regulated firearms may not be possessed, made, or transferred
`without the authorization of the Attorney General. Id. §§ 5812, 5822. The
`ATF’s authorization is also required before crossing state lines with an NFA
`weapon. 18 U.S.C. § 922(a)(4); 27 C.F.R. § 478.28.8
`
`_____________________
`
`bore(s).” 27 C.F.R. § 478.11. A revolver is a “projectile weapon, of the pistol type, having
`a breechloading chambered cylinder so arranged that the cocking of the hammer or move-
`ment of the trigger rotates it and brings the next cartridge in line with the barrel for firing.”
`Id. The relevant firearms are primarily pistols, not revolvers, so we use the terms
`“handgun” and “pistol” more or less interchangeably.
`6 Generally speaking, most pistols are actually fired with two hands, with the dom-
`inant hand gripping the pistol itself and the supporting hand gripping on top of the dom-
`inant hand.
`7 “AR” stands for “ArmaLite Rifle” (named after the original developer), and
`AR-15 rifles are rifles based on the design of the original AR-15 military rifle. AR-pistols
`are pistol-length versions of the rifle without a stock. See Types of Firearms, U.S. Con-
`cealed Carry Ass’n,
`https://www.usconcealedcarry.com/resources/terminology/types-of-firearms/ (last
`visited July 7, 2023).
`8 Although state-by-state bans on specific NFA weapons vary greatly, numerous
`states ban, or functionally ban, all SBRs, even if the NFA’s requirements are followed. See,
`e.g., What NFA Firearms Are Permitted by Each State?, Nat’l Gun Trusts (Aug. 8,
`2018), https://www.nationalguntrusts.com/blogs/nfa-gun-trust-atf-information-
`
`6
`
`

`

`Case: 23-10319 Document: 00516842296 Page: 7 Date Filed: 08/01/2023
`
`No. 23-10319
`
`Importers, manufacturers, and dealers of SBRs must register with the
`ATF, must pay a special occupation tax annually, and must register any SBR
`they manufacture. See 26 U.S.C. §§ 5801–02; 5841(c). Finally, when pur-
`chased by individuals, most NFA-regulated firearms, including SBRs, are
`subject to a $200 transfer tax stamp. Id. § 5811; 27 C.F.R. § 479.11. Although
`that financial burden is not particularly onerous today,9 in 1934, when the
`NFA was enacted, the tax was explicitly intended to tax these weapons out
`of existence.10 In today’s dollars, $200 in 1934 is approximately $4,500.11
`
`_____________________
`
`database-blog/nfa-items-permitted-by-state.
`9 A more burdensome issue today may be the time it takes to register a firearm
`under the NFA. In comments on the Proposed Rule, commentators asserted that regis-
`tration often takes many months to a year. Final Rule at 6558. The ATF’s response was
`less than reassuring, merely noting that “NFA processing times continue to decline as
`efficiencies and technology improve.” Id. at 6559. Named plaintiff Christopher Lewis
`specifically mentioned the long delays in his declaration:
` I have specific plans to purchase at least one additional braced pistol
`within the next three to four months, so long as such purchase would not
`subject me to any civil or criminal fines or penalties and could be purchased
`without submitting to the heightened requirements of the NFA, including
`but not limited to . . . the delays imposed by the ATF and other federal
`agencies in administering the NFA.
`10 As the ATF itself avers, the purpose of the NFA was to “curtail, if not prohibit,
`transactions in NFA firearms . . . . The $200 making and transfer taxes on most NFA
`firearms were considered quite severe and adequate to carry out Congress’ purpose to
`discourage or eliminate transactions in these firearms.” National Firearms Act, ATF
`(Apr. 7, 2020), https://www.atf.gov/rules-and-regulations/national-firearms-act.
`11 CPI
`Inflation Calculator, U.S. Bureau of Lab. Stats.,
`https://www.bls.gov/data/inflation_calculator.htm. The tax was set at the approximate
`market price of a machine gun in 1934. See National Firearms Act: Hearing on H.R. 9066
`Before the H. Comm. on Ways & Means, 73d Cong. 12 (1934) (statement of Homer S.
`Cummings, Att’y Gen. of the United States).
`Inflation adjustment also does not capture the severity of the tax. The tax was on
`a per-weapon basis, and in 1940, the average citizen earned only $1,368 a year. See Diane
`Petro, Brother, Can You Spare a Dime? The 1940 Census: Employment and Income, Pro-
`logue Mag., Spring 2012,
`
`7
`
`

`

`Case: 23-10319 Document: 00516842296 Page: 8 Date Filed: 08/01/2023
`
`No. 23-10319
`
`This especially restrictive regime resulted from panic over gangster-
`related violence and thus was instituted to regulate “weapons likely to be
`used for criminal purposes.” United States v. Thompson/Ctr. Arms Co.,
`504 U.S. 505, 517 (1992) (plurality opinion). Attorney General Homer Cum-
`mings testified,
`
` A sawed-off shotgun is one of the most dangerous and
`deadly weapons. A machine gun, of course, ought never to be
`in the hands of any private individual. There is not the slightest
`excuse for it, not the least in the world, and we must, if we are
`going to be successful in this effort to suppress crime in
`America, take these machine guns out of the hands of the crim-
`inal class.
`
`National Firearms Act: Hearings on H.R. 9066 Before the H. Comm. on Ways &
`Means, 73d Cong. 6 (1934). Although not the focus of the Attorney General’s
`comment, sawed-off shotguns were particularly valued for their ability to be
`easily concealed and to unleash devastating damage at short range.12
`
`No one was under any misconception that gangsters would obey the
`strictures of the NFA. Indeed, Attorney General Cummings expounded, “I
`do not expect criminals to comply with this law; I do not expect the under-
`world to be going around giving their fingerprints and getting permits to carry
`these weapons, but I want to be in a position . . . to convict [them] because
`
`_____________________
`
`https://www.archives.gov/publications/prologue/2012/spring/1940.html.
`12 As the ATF asserts, the NFA was a “direct response to gang violence” and
`accordingly “imposed criminal, regulatory and tax requirements on weapons favored by
`gangsters: machine guns, silencers and sawed-off shotguns.” National Firearms Act, 1934,
`ATF (Sept. 28, 2016), https://www.atf.gov/our-history/timeline/national-firearms-act-
`1934; see also Brian L. Frye, The Peculiar Story of United States v. Miller, 3 N.Y.U. J.L. &
`Liberty 48, 67 (2008) (quoting a New York Times article from 1939 noting that the
`“favorite arm” of “bank robbers, gangsters and other criminals” was the sawed-off
`shotgun.).
`
`8
`
`

`

`Case: 23-10319 Document: 00516842296 Page: 9 Date Filed: 08/01/2023
`
`No. 23-10319
`
`[they have] not complied.”13
`
`Given that focus on “public safety,” Congress may have believed that
`“a[ny] long gun with a shortened barrel is both dangerous, because its con-
`cealability fosters its use in illicit activity, and unusual, because of its height-
`ened capability to cause damage.” United States v. Cox, 906 F.3d 1170, 1185
`(10th Cir. 2018) (cleaned up). Accordingly, the initial draft of the NFA
`would have regulated a “pistol, revolver, shotgun having a barrel less than
`sixteen inches in length, or any other firearm capable of being concealed on
`the person, a muffler or silencer therefor, or a machine gun.”14
`
`But that was not the version that Congress passed. Instead, the final
`text of the NFA specifically exempts “a pistol or a revolver having a rifled
`bore” from its coverage. 26 U.S.C. § 5845(e). And when Congress enacted
`the GCA 30 years later to expand federal firearms regulation, the statute
`defined handguns but did not include any additional restrictions on them.
`
`And again, those statutory restrictions have teeth: Failure to comply
`with the requirements of the NFA and GCA carries severe consequences.
`Violating the GCA exposes one to criminal penalties, including fines and a
`maximum of five years’ imprisonment. 18 U.S.C. § 924(a)(1). Violating the
`NFA carries the potential for ten years’ imprisonment, 26 U.S.C. § 5871,
`seizure and forfeiture of the firearm, id. § 5872, an assessment of tax liabili-
`ties, 27 C.F.R. § 479.191, and a fine up to $250,000 for an individual and
`$500,000 for an organization. 18 U.S.C. § 3571(b)–(c). As failure to comply
`can also be a felony, a violation may also lead to a lifetime ban on ownership
`of firearms. See 18 U.S.C. § 922(g)(1).
`
`_____________________
`
`13 National Firearms Act: Hearings on H.R. 9066 Before the H. Comm. on Ways &
`Means, 73d Cong. 22 (1934).
`14 Id. at 1.
`
`9
`
`

`

`Case: 23-10319 Document: 00516842296 Page: 10 Date Filed: 08/01/2023
`
`No. 23-10319
`
`B.
`Consequently, there are immense incentives not to own an SBR but
`instead to have a non-NFA-regulated pistol. Enter the stabilizing brace.
`Otherwise known as a pistol brace, it is a device attached to the rearward part
`of a handgun. Though braces work in different ways, the general concept is
`that they attach to or support the forearm in some way, either by straps or
`another mechanism, and easily allow safe and comfortable pistol-firing with
`one hand.
`
`In 2012, the first stabilizing brace was submitted to the ATF for
`review. The applicant asked whether the attachment of that device would
`change the pistol’s classification under firearm laws.15 The applicant stated
`that the brace was designed so that disabled persons could fire heavy pistols
`more safely and comfortably.16 The ATF examined the sample and con-
`cluded that the submitted brace did “not convert that weapon to be fired
`from the shoulder and would not alter the classification of a pistol or other
`firearm.” Final Rule at 6479.
`
`Post-submission, these styles of braces increased in popularity, and
`the ATF avers that over the past decade, many of them were being used to
`fire heavy pistols from the shoulder without using the features of the brace.
`See id. Still, ATF regulations defining braces and the legality of their uses
`_____________________
`
`15 The ATF’s Firearms and Ammunition Technology Division (“FATD”) deter-
`mines whether a firearm is regulated under either the GCA or the NFA. Because the
`FATD is part of ATF, we, for simplicity, attribute FATD decisions and letters to the ATF.
`See How Do I Send in a Firearm or Ammunition to FATD for Classification?, ATF (May 26,
`2020),
`https://www.atf.gov/firearms/qa/how-do-i-send-firearm-or-ammunition-fatd-
`classification.
`16 See, e.g., About Us, SB Tactical,
`https://www.sb-tactical.com/about/company/ ; see also Letter for John Spencer, Chief,
`Firearms Technology Branch, ATF, from Alex Bosco, NST Global (Nov. 8, 2012); Final
`Rule at 6560.
`
`10
`
`

`

`Case: 23-10319 Document: 00516842296 Page: 11 Date Filed: 08/01/2023
`
`No. 23-10319
`
`have not been a model of clarity.
`
`In March 2014, for example, the ATF posited that although it clas-
`sifies weapons “based on their physical design characteristics . . . [and]
`usage/functionality . . . does influence the intended design, it is not the sole
`criterion for determining the [weapon’s classification].” Letter from ATF
`#2014-301737 (Mar. 5, 2014). The ATF explicitly claimed that it does not
`“classify weapons based on how an individual uses a weapon.” Id. As a
`result, an individual’s improperly firing a braced pistol from the shoulder did
`not reclassify the pistol as a short-barreled rifle. Id.
`
`Then in October of that year, the ATF backtracked and asserted that
`subjective use, instead of design criteria, may change a weapon’s classifi-
`cation. Letter from ATF #2014-302492 (Oct. 28, 2014). Still, by December
`of that year, the ATF approved devices such as the Shockwave Blade Pistol
`stabilizer for use, so long as the device was “used as originally designed and
`NOT used a shoulder stock.” Letter from ATF #2014-302672 (Dec. 15,
`2014).
`
`In 2015, in response to requests for clarification, the ATF issued an
`Open Letter noting that “[a]ny person who intends to use a handgun stabiliz-
`ing brace as a shoulder stock on a pistol (having a rifled barrel under 16 inches
`in length or a smooth bore firearm with a barrel under 18 inches in length)
`must first file an ATF Form 1 and pay the applicable tax because the resulting
`firearm will be subject to all provisions of the NFA.”17
`
`In 2017, the ATF noted that “incidental, sporadic, or situational ‘use’
`of an arm-brace (in its original approved configuration)” did not constitute a
`“redesign” under the NFA and so did not transform the weapon. Letter
`
`_____________________
`
`17 Max M. Kingery, ATF, Open Letter on the Redesign of “Stabilizing Braces”
`(Jan. 16, 2015).
`
`11
`
`

`

`Case: 23-10319 Document: 00516842296 Page: 12 Date Filed: 08/01/2023
`
`No. 23-10319
`
`from ATF #9000:GM, 5000 (Mar. 27, 2017). “Therefore, an NFA firearm
`has not necessarily been made when the device is not re-configured for use as
`a shoulder stock—even if the attached firearm happens to be fired from the
`shoulder.” Id. As of 2019, the ATF asserted in criminal prosecutions that
`“ATF letters do correctly state that they consider a firearm with a pistol
`brace to not be a rifle under the NFA for purposes of the NFA.”18
`
`On the other hand, the ATF asserts that manufacturers were making
`pistol braces so consumers could functionally obtain SBRs without the
`required authorization.19 Nonetheless, the ATF maintained that stabilizing
`braces were not stocks and that pistols equipped with braces were not short-
`barreled rifles. Exceptions to that general position appeared only when objec-
`tive design features indicated that a weapon was “intended to be fired from
`the shoulder.” 26 U.S.C. § 5845(c).20 Regardless of their individual merit,
`those determinations proceeded on somewhat of an ad hoc basis, and the
`unifying logic was not always discernable.
`
`Over this period, the number of pistol braces in America increased
`rapidly, as ATF’s letter rulings approving the braces helped create a thriving
`
`_____________________
`
`18 Sentencing Hr’g Tr. at 38, United States v. Kamali, No. 3:18-cr-00288 (D. Conn.
`Sept. 30, 2019), ECF 110.
`19 For example, the ATF points to manufacturer SB Tactical’s alleging that its
`braces were “ATF compliant” even though the ATF had evaluated only two of the twenty
`stabilizing braces SB Tactical was selling. See Final Rule at 6492.
`20 The ATF rejected a pistol brace with rearward ridges on the brace, as the ridges
`“serve[d] no functional purpose in the design of a pistol brace” and instead served only to
`support shoulder fire. See Final Rule at 6488. Similarly, the ATF rejected a weapon design
`that featured both a pistol brace and a forward grip because the forward grip would be useful
`only for two-handed firing, and therefore its presence indicated that the brace’s only pur-
`pose was to support shoulder fire. Id. at 6485. The agency also rejected a “two-strap”
`style brace design whose straps “were not long enough to wrap around the shooter’s arm,”
`as without the straps, the brace’s only purpose was to support shoulder fire. Id. at 6493.
`
`12
`
`

`

`Case: 23-10319 Document: 00516842296 Page: 13 Date Filed: 08/01/2023
`
`No. 23-10319
`
`market. Thus, “[b]y late 2020,” the ATF had “concluded” that “previous
`. . . classification determinations had led to confusion and there was a need to
`provide clarity to the firearm industry and public on how [the agency] evalu-
`ates firearms equipped with a ‘stabilizing brace.’” Final Rule at 6494. As of
`2023, the ATF estimates there are about 3 million pistol braces in circulation
`(with 7 million at the high end).21
`
`Pistol braces also have been used in multiple violent crimes. The ATF
`specifically points to mass shootings in Boulder, Colorado, and Dayton,
`Ohio, where mass shooters killed a combined 19 persons while purportedly
`using a pistol brace as a shoulder stock. Id. at 6508. In the Final Rule, the
`ATF theorizes that SBRs are “dangerous and unusual due to both their
`concealability and their heightened ability to cause damage.” Id. at 6499. In
`support, the ATF notes that since 2015, approximately 63 firearms with sta-
`bilizing braces have been identified in criminal investigations, and there are
`about 105 firearms cases or investigations involving braced weapons. Id.22
`
`In response to this regulatory confusion and purported safety threat,
`the ATF published the Proposed Rule through a Notice of Proposed Rule-
`making (“NPRM”) on June 10, 2021. The NPRM proposed to amend the
`Bureau’s regulations “to clarify when a rifle is ‘intended to be fired from the
`
`_____________________
`
`21 ATF, RIN 1140-AA55, Factoring Criteria for Firearms with
`Attached “Stabilizing Braces”: Final Regulatory Impact Analysis
`and
`Final Regulatory
`Flexibility Analysis
`18
`(2023),
`https://www.atf.gov/rules-and-regulations/docs/undefined/atf2021r-
`08stabilizingbracefrriapdf/download [hereinafter Final Regulatory Impact
`Analysis].
`22 The ATF suggests that statistic likely undercounts the total number. Still, com-
`pare that number to the annual average of 17,730 people in the United States who are killed
`by guns in homicides (for which Everytown includes shootings by the police). Everystat:
`How does gun violence impact the communities you care about?, Everytown for Gun
`Safety, https://everystat.org/ (last visited July 7, 2023).
`
`13
`
`

`

`Case: 23-10319 Document: 00516842296 Page: 14 Date Filed: 08/01/2023
`
`No. 23-10319
`
`shoulder’” when “equipped with a purported ‘stabilizing brace’” so that the
`ATF could “determine whether these weapons would be considered a . . .
`‘short-barreled rifle’ under the [GCA] or a . . . ‘firearm’ subject to regulation
`under the [NFA].” Proposed Rule at 30826.
`
`The NPRM focused on a weapon’s “objective design features.” Id.
`at 30828. “Similar to . . . Form 4590, used to determine if a firearm is ‘sport-
`ing’ for purposes of importation,” the ATF proposed to use a new “Work-
`sheet 4999 to determine if a firearm is designed and intended to be fired from
`the shoulder.” Id. at 30830 (internal quotations added).
`
`That Worksheet assigned points to various design criteria to indicate
`whether a brace device, in conjunction with the firearm, was intended to be
`shouldered when fired. Id. at 30830–31. If the Worksheet yielded a “total
`point value . . . equal to or greater than 4—in either Section II or III—then
`the firearm, with the attached ‘stabilizing brace,’” would be considered a
`“rifle.” Id. at 30829. And it would very likely be considered a short-barreled
`rifle, too, thereby triggering the NFA and the GCA. The ATF then accepted
`comments until September 8, 2021. Id. at 30826.
`
`Needless to say, the Proposed Rule was controversial. Comments
`were overwhelmingly negative, with 217,000 of the 237,000 comments made
`in opposition (~92%). See Final Rule at 6497. Approximately 44% of those
`comments were form letters. Id. In contrast, of the 8% of comments in
`support of the NPRM, only 10% were unique, with the rest being form letters.
`Id.
`
`Although the Worksheet attempted to let the populace know, with
`objective criteria, whether their respective weapons with a brace would be
`classified as rifles, the implementation left much to be desired in practice.
`Just as a short example of the many issues with the Worksheet, determining
`whether an accessory only “[i]ncorporates shoulder stock design feature(s)”
`
`14
`
`

`

`Case: 23-10319 Document: 00516842296 Page: 15 Date Filed: 08/01/2023
`
`No. 23-10319
`
`or instead was “[b]ased on a known shoulder stock design” has some
`inherent level of subjectivity. See Proposed Rule at 30830–31. Additionally,
`some design characteristics were doubly penalized, such as whether the sta-
`bilizing support had a “fin-type” design without an arm strap or whether the
`stabilizing brace was adjustable. See Final Rule at 6530. On the other hand,
`the Proposed Rule did provide specific examples of how an individual could
`grade his firearm: It graded three firearms with attached stabilizing braces
`per Worksheet 4999. And one, an AR-type firearm with an SB-Mini acces-
`sory, passed muster as an approved braced handgun, not a rifle. Proposed
`Rule at 30834–37. The Proposed Rule also had an estimated cost over ten
`years, at a 3% discount rate, of $114.7 million. Id. at 30845.
`
`Nonetheless, as the ATF recounts in the Final Rule, the Proposed
`Rule was complex and confusing. So about eighteen months later, the ATF
`published the Final Rule. In it, the Worksheet approach was abandoned en-
`tirely. It instead interpreted the NFA’s and GCA’s definitions of “rifle”
`with a two-step process. First, the Final Rule amended the definition of rifle
`under 27 C.F.R. §§ 478.11 and 479.11 to state that the term “desired or re-
`designed, made or remade, and intended to be fired from the shoulder”
`includes
`
`a weapon that is equipped with an accessory, component, or
`other rearward attachment (e.g., a “stabilizing brace”) that pro-
`vides surface area that allows the weapon to be fired from the shoul-
`der, provided other factors . . . indicate that the weapon is de-
`signed, made, and intended to be fired from the shoulder.
`
`Final Rule at 6480 (emphasis added). Second, the other factors are
`
`(1) Whether the weapon has a weight or length consistent with
`the weight or length of similarly designed rifles;
`(2) Whether the weapon has a length of pull, measured from
`the center of the trigger to the center of the shoulder stock or
`
`15
`
`

`

`Case: 23-10319 Document: 00516842296 Page: 16 Date Filed: 08/01/2023
`
`No. 23-10319
`
`other rearward accessory, component or attachment (including
`an adjustable or telescoping attachment with the ability to lock
`into various positions along a buffer tube, receiver extension,
`or other attachment method), that is consistent with similarly
`designed rifles;
`(3) Whether the weapon is equipped with sights or a scope with
`eye relief that require the weapon to be fired from the shoulder
`in order to be used as designed;
`(4) Whether the surface area that allows the weapon to be fired
`from the shoulder is created by a buffer tube, receiver exten-
`sion, or any other accessory, component, or other rearward at-
`tachment that is necessary for the cycle of operations;
`(5) The manufacturer’s direct and indirect marketing and pro-
`motional materials indicating the intended use of the weapon;
`and
`(6) Information demons