Public safety, gun rights, executive overreach all factors in three suits -- including W.Va.'s -- challenging new ATF pistol brace rule

Feb. 14—MORGANTOWN — The multistate lawsuit led by West Virginia against the Biden administration's new gun rule is not the only one in the works.

The Wisconsin Institute for Law & Liberty has filed suit in Texas on behalf of two combat veterans. The Firearms Policy Coalition, a gun rights group, is also suing in Texas.

The rule, finalized on Jan. 13 and announced by the Department of Justice, is aimed at regulating stabilizing braces—also called pistol braces—that DOJ's Bureau for Alcohol, Tobacco, Firearms and Explosives says turn pistols into short-barreled rifles.

While all three suits are different, they all argue the same three main points: The rule violates the Second Amendment ; the rule mischaracterizes the purpose for the braces ; and the Biden administration is bypassing Congress to make law through agency rules.

Rob Miller, a Putnam County disabled veteran who uses pistol braces to help hold and steady his guns, explained their origin during a press conference held by state Attorney General Patrick Morrisey last week.

He said that they were designed by a veteran who was shooting at a range with a disabled colleague. The range master stopped him for safety reasons, because the disabled veteran couldn't control his gun well enough. The brace is intended to help shooters with disabilities shoot more comfortably and accurately.

Biden proposed the rule on the heels of a 2021 mass shooting in Boulder, Colo., that left 10 dead, in which the shooter used a stabilizing brace on his gun. And in 2019, another person used a brace in a Dayton, Ohio, shooting that killed nine.

The rule took effect on Jan. 31 and requires any weapons with stabilizing braces or similar attachments that constitute rifles under the National Firearms Act to be registered no later than May 31 ; or the short barrel removed and a 16-inch or longer rifle barrel attached to the firearm ; or permanently remove and dispose of, or alter, the stabilizing brace such that it cannot be reattached ; or the firearm is turned in to a local ATF office ; or the firearm is destroyed.

Firearms registered by the May 31 deadline are exempt from the $200 tax.

ATF says the rule does not affect stabilizing braces that are objectively designed and intended as a stabilizing brace for use by individuals with disabilities, and not for shouldering the weapon as a rifle. Such stabilizing braces are designed to conform to the arm and not as a buttstock.

U.S. Attorney General Attorney General Merrick Garland said about the rule, "Keeping our communities safe from gun violence is among the department's highest priorities. Almost a century ago, Congress determined that short-barreled rifles must be subject to heightened requirements. Today's rule makes clear that firearm manufacturers, dealers, and individuals cannot evade these important public safety protections simply by adding accessories to pistols that transform them into short-barreled rifles."

ATF Director Steven Dettelbach said, "This rule enhances public safety and prevents people from circumventing the laws Congress passed almost a century ago. In the days of Al Capone, Congress said back then that short-barreled rifles and sawed-off shotguns [which are more easily concealable than rifles ] should be subjected to greater legal requirements than most other guns. The reason for that is that short-barreled rifles have the greater capability of long guns, yet are easier to conceal, like a pistol."

He continued, "But certain so-called stabilizing braces are designed to just attach to pistols, essentially converting them into short-barreled rifles to be fired from the shoulder. Therefore, they must be treated in the same way under the statute."

Morrisey is leading a 25-state coalition in a lawsuit against Garland, the Bureau of Alcohol, Tobacco, Firearms and Explosives and its director. The case is in the North Dakota U.S. District Court, Western Division. The suit seeks to enjoin the ATF rule.

Morrisey said at the press conference, "This is going to take a lot of work. This administration is hell bent on going after your Second Amendment rights. We have to stop them."

The rule, he said will make it more expensive and more difficult to own weapons that are safe to use, he said. "This represents a sea change and we're not going to let it happen."

Art Thomm, with the National Rifle Association, also appeared with Morrisey and called the new rule an "egregious regulatory attack on law-abiding gun owners."

ATF approved the braces in 2012. But, the suit says, "Frustrated with congressional inaction, the president of the United States ordered ATF to abandon a decade of practice under an established statutory framework and to treat pistols modified with stabilizing braces as subject to the National Firearms Act."

The suit says that while the rule provides factoring criteria to clarify how ATF will determine whether any particular weapons configuration is subject to heightened regulation, it in effect vests ATF with unbounded discretion. "And ATF has made clear exactly how it intends to exercise that discretion, estimating that, under the rule, 99 % of pistols equipped with stabilizing braces will now be deemed subject to National Firearms Act controls."

According to ATF, the suit says, the clarification will result in the destruction or forfeiture of over 750, 000 firearms and will cost the private sector somewhere between $2 billion and $5 billion.

The rule, the suit says, regulates pistols and other firearms based on accessories designed as orthotics that make them less concealable, more accurate, and less dangerous, thereby undermining public safety.

Morrisey said that while stabilizing braces were designed to help people with disabilities use pistols, many others, including older persons, people with limited mobility and those with smaller stature have come to use the braces. And many lawful gun owners use stabilizers to prevent some recoil and to help with accuracy.

Neighbors Kentucky and Virginia are among the 25 states in the coalition. Several gun owner groups and one individual are also plaintiffs: Firearms Regulatory Accountability Coalition Inc., an advocacy group ; SB Tactical, a brace manufacturer ; B &T USA, a firearms importer and manufacturer ; and Richard Cicero, a retired police firearms instructor who was wounded and uses stabilizing braces.

In the Firearms Policy Coalition suit, Cody J. Wisniewski, FPC's senior attorney for constitutional litigation, said, "Federal agencies do not have the power to write new laws, and yet the ATF continues to attempt to expand its authority using the federal rulemaking process. This rule is, in effect, a federal law that will transform millions of peaceable people into felons overnight simply for owning a firearm that has been lawful to own for decades. We won't stand idly by while the ATF tramples the rights of millions of peaceable individuals."

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