Minutes ago, the Fifth Circuit Court of Appeals issued a preliminary injunction (download the PDF HERE) against the DOJ’s and ATF’s unconstitutional attack on firearms equipped with a pistol stabilizing brace. The lawsuit, brought by the Firearms Policy Coalition and other plaintiffs, paid off with this temporary injunction just days before ATF’s mandatory registration “grace period” that was set to expire on the 31st.
Don’t celebrate too soon, though. Unfortunately this temporary injunction applies only to the named plaintiffs . . . “…Preliminary Injunction Pending Appeal is GRANTED as to the Plaintiffs in this case.”
It stays in effect — again, only for the named plaintiffs — until an appeal in the case is ruled on. Stay tuned, because it’s at least a first real step and a first win, even if quite limited, in the right direction since the new ATF ruling was announced.
Press release from FPC follows . . .
Today, Firearms Policy Coalition (FPC) released a statement on the Fifth Circuit’s Order granting an Injunction Pending Appeal in Mock v. Garland, FPC and FPC Action Foundation’s federal lawsuit challenging the Bureau of Alcohol, Tobacco, Firearms and Explosives’ (ATF’s) recent rule reclassifying braced pistols as National Firearms Act (NFA)-regulated short-barreled rifles. The injunction, along with other case documents, can be viewed at FPCLaw.org.
FPC challenged ATF’s administrative rule that seeks to reclassify “braced pistols” as “short-barreled rifles.” In so doing, the rule would transform millions of peaceable people into felons overnight simply for owning a firearm that has been lawful to own for a decade, unless they either destroy their constitutionally protected property or comply with the NFA’s onerous and unconstitutional requirements.
FPC has argued that the rule is a violation of both the U.S. Constitution and the Administrative Procedure Act because it infringes upon the fundamental and natural rights of the People. Plaintiffs sought declaratory and injunctive relief to secure their constitutionally protected right to keep and bear arms.
Per the the Fifth Circuit’s Order, “IT IS ORDERED that the appeal is EXPEDITED to the next available Oral Argument Calendar. IT IS FURTHER ORDERED that Appellants’ Opposed Motion For a Preliminary Injunction Pending Appeal is GRANTED as to the Plaintiffs in this case.”
FPC intends to seek clarification as to who is covered under the scope of the injunction.
“We are very excited and encouraged by the Fifth Circuit’s decision this morning,” said Cody J. Wisniewski, Senior Attorney for Constitutional Litigation at FPC Action Foundation. “We intend to ask the Court for additional information about who is covered under the injunction, but cannot stress enough just how important this decision is. The fight is far from over, but this is a huge victory in the battle against the ATF’s unconstitutional and unlawful brace rule!”
In the words of Sheriff Bart, “Hold the happiness”. This is not a nation wide holding as far as I can tell. I’m also not a lawyer, etc…..
Definitely not nationwide, applies only to enforcement of the law against the named plaintiffs.
Recognize that this appeal is a longshot procedurally . . . Judge O’Connor simply held that while the plaintiffs may prevail on summary judgment, *at this time* they had not made a sufficient finding to justify the extraordinary remedy of a preliminary injunction. That’s ALWAYS a heavy lift to get overturned on appeal.
So while this order from the Fifth Circuit is unexpected good news, it’s far too early to start celebrating.
It’s a real cliff hanger…the courtroom drama is borderline orgasmic…Not.
In the meantime I’ll keep my donation money however I’ll do my part and Define Gun Control according to its Confirmed History of Rot…It’s the least I can do to counter Gun Control zealots et al whose daily routine is to dissect and rewrite the Second Amendment to suit their fancy.
What do you think LKB? Should Gun Owners get off their butts and Define Gun Control by its History of Rot in response to Gun Control zealots who run around every day Defining the Second Amendment all in a team effort to destroy it? After all sauce for the goose is sauce for the gander or are you too content with same old cat and mouse games?
Debbie, if you want to spend your time barking at the moon and preaching to the converted, knock yourself out. When your approach (which is, exactly, what?) actually achieves something tangible, do let us know.
Litigation — especially test case litigation against state actors — is a slow and expensive process. But as Bruen and its progeny are demonstrating on a daily basis, well-crafted test cases by folks like FPC *are* generating results.
Are these test cases working as fast as I’d like? Of course not (c’mon Judge Benitez, hurry up and rule!). But in terms actually delivering results, they are much more effective than “Defining Gun Control by its History of Rot” is going to.
Pray tell *exactly* what Debbie’s “Defining Gun Control by its History of Rot” approach is going to yield, and how you foresee it will do so? (You’re hardly the first person to point out the racist history of gun control. Even Adam Winkler acknowledges it, and that’s hardly changed his mind on the Second Amendment.) Is Shannon Watts going to listen and then decide to go into another line of business? Is it going to convince Bloomberg to stop funding these missions? Is it going to lead to a single gun control law being declared unconstitutional and not enforced?
I’ll put my efforts into assisting groups like FPC in litigating test cases, in lobbying state legislatures in red states to continue rolling back 2A restrictions, and yes, in trying to keep the TTAG readership informed and educated as to what is happening (and why) in Second Amendment cases, so that they can make their own educated choices about what they choose to do.
“(c’mon Judge Benitez, hurry up and rule!).”
What is up with Judge Benitez on that California AWB case, anyways?
Is waiting this long some kind of strategy?
Geoff:
Your guess is as good as mine; nobody seems to have any idea. Matter has been fully briefed since mid-March, and I expected an opinion by May 1.
@Geoff,
Weird. I just checked to see the status, and the Miller v. Bonta page is reverted back to the former title Miller v. Becerra (our former A.G. who was at the helm when this was originally filed in court) on the Michel Associates site, and it’s now password protected.
Very odd.
LKB…I asked you a direct question and you went omni directional…far beyond the moon.
Furthermore the only people who respond to me in the manner you did are people who are zipped lipped and do not have the intestinal fortitude to Define Gun Control.
Have you ever bothered to ask Gun Owners or a shannon watts type to Define Gun Control? I do not receive excuses or responses from Gun Control zealots because once they fact check the History of Gun Control they are Lost For Words…as should you be.
A History Confirmed agenda rooted in racism and genocide like Gun Control doesn’t sell anymore than you waving a noose around at a Rap Concert.
Your silence embolden the shannon watts of the world and because of your silence the shannon watts types control the public’s misguided view and definition of Gun Control.
Below is a Man Defending your Rights like a Man should…I hope it helps you because when it comes to you stepping up and Defining Gun Control according to its History you don’t know what the f a Man is.
https://youtu.be/WlItbl9SOAg
Debbie:
“Have you ever bothered to ask Gun Owners or a shannon watts type to Define Gun Control? I do not receive excuses or responses from Gun Control zealots because once they fact check the History of Gun Control they are Lost For Words…as should you be.”
I’ve been doing that since the 1970’s. The true believers do not CARE about anything that contradicts their worldview (see e.g., Adam Winkler).
You belief that simply arguing the racist roots of gun control is magically going to win the day is naive at best. It’s certainly a good argument to include in an overall strategy, but it’s not some sort of talisman that somehow results in victory.
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there were three cases pending for braces to stop the ATF unconstitutional act from going into effect. this was just one of them.
So far this is only good news for the states covered by the 5th circuit. Hopefully more follow suit.
Doesn’t even do that. See above.
do what? I never specified anything…..
It’s not “good news for the states covered by the 5th Circuit.” It’s good news for the named plaintiffs, but at this point that’s all.
I.e., I live in the Fifth Circuit. If I had a weapon subject to the reg, I’d still be subject to enforcement of it, because I’m not one of the named plaintiffs who are covered by the injunction.
@LKB it is good news for the 5th circuit in general in my view because if there was no merit the current injunction wouldn’t have been issued in the first place its not good news in the immediate short term but probably good news in the long run. I never specified anything till now you took it that way.
LKB…RR: “I’ve been doing that since the 1970’s. The true believers do not CARE about anything that contradicts their worldview (see e.g., Adam Winkler).”
“You belief that simply arguing the racist roots of gun control is magically going to win the day is naive at best. It’s certainly a good argument to include in an overall strategy, but it’s not some sort of talisman that somehow results in victory.”
You can speak for yourself just do not speak for me…There is nothing, nada magical about Defining Gun Control for the public or have I ever implied that. If it were magical I would first turn you into a toad:)
I do not know what you’ve done since the 70s but whatever it was it was not enough which is easy to conclude when you have done nothing thus far but Bark at Defining Gun Control. I would expect adam winkler to bark at one like me Defining Gun Control but your replies to me surely would make adam proud.
Best I can do for you was the suppled link and I am glad you recognize strategy. Watching crowds of misguided people marching around begging for Gun Control should be taken very seriously. People just do not march for Gun Control because they are a herd of adam winkers. They march because most Gun Owners have failed miserbly to step up and Define Gun Control which won’t happen when most Gun Owners could not Define Gun Control by its History if their lives depended on it…Ask Them.
Again, “defining gun control” as you posit is nothing but an argument — it’s a good argument, albeit one that’s been made for years.
But arguments alone do not generate results, particularly when dealing with opponents who simply do not care about the history, constitutionality, or infeasibility of gun control: they just know they want it, and that ends the inquiry in their adolescent minds. Having dealt with these people for decades, your belief that merely telling them the truth about gun control is somehow going to change their minds is indeed naive.
To get actual results, you have to combine arguments and ideas with pragmatic actions, such as litigation, lobbying, and electoral politics. Yet while you constantly denigrate the work being done in test cases by groups by the FPC, despite repeated invitations you’re never able to articulate what concrete actions or strategy you envision will come out of your “defining gun control” hobbyhorse.
Litigation *is* generating results. See Bruen. Lobbying *is* generating results. See Texas and Florida, inter alia. “Defining gun control” . . . well, perhaps you can explain what results it will generate and how it will do so?
Narrow tailored rulings, what we need to fight against as well. I know, precedent precedent, precedent. This is nothing more than stretching it out, in the hopes of staving off what legally should be inevitable. Slows progress for no valid reason, the legal systems way of dragging their heels and sandbagging the process.
OK, then what are you proposing? Please be specific.
Courts can only deal with the particular parties and live dispute in front of them — they cannot just issue broad decrees that go beyond the case presented (except as that decision sets precedent for future cases). Like it or not, that’s how the legal system works.
Litigation is indeed a maddingly slow process. But that’s just how it is.
We’ve been trying to reach you about your extended warranty.
So this injunction, if it only applies to the area of the Fifth Circuit, kinda flies in the face of equal protection doesn’t it ?
I don’t think you can make a strong ‘equal protection’ argument while it’s still in process.
If the final ruling made braces unrestricted in 5th Circuit states but not elsewhere, yeah, then there would be a pretty clear equal protection issue.
Again, this is a limited injunction that applies only to the names plaintiffs.
Like the bump stock case, if / when there is a final, final ruling by the courts that finds the reg unconstitutional, then the reg will likely be nullified. They can’t “partially nullify” it for only certain parts of the country — that’s not how federal regs work.
Thus, if SCOTUS doesn’t grant cert on the bump stock case (or grants cert and affirms), then on paper district judge Erza should issue an order invalidating the reg en toto.
Peripheral question for our legal eagles: What’s the deal with the Circuit Courts?
I always figured they’d made an effort to balance them out like electoral districts. This holds true where populous NY, TX, IL, PA, or FL share Circuits with one or two smaller states; or where a larger number of sparse plains or mountain states are grouped together.
Then there’s CA, which alone has more people than several whole Circuits put together, but is grouped with the largest number of other states (including some fairly populous ones). Did they just carve this in stone in ~1850 and pretend it’s not stupid today, or what?
It’s all about politics.
5th Circuit used to cover TX, LA, MS, AL, GA, and FLA, and rivaled the 9th in population. When it got so big that it was becoming unwieldy, Congress split it into the Fifth (TX, LA, MS) and the newly created Eleventh (MS, AL, GA, FLA).
There have been all sorts of moves to cut up or reallocate parts of the 9th into two or more circuits over the years. Dem’s have blocked them, out of fear that the leftist monopoly that the 9th Circuit has would be diluted (or for the portion that didn’t include California, eliminated).
Thank you very much!
This will continue until the Supreme Court simply and unequivically rules that the government cannot ban possession of a firearm at any time, at any place, for any reason whatsoever except for specifically easily understood reasons such as incarceration.
Until that happens, we’ll continue to play these mindless wackamole games in court.
No “Reasonableness” standard. No “Time place manner” standard. Only Government may not infringe on a citizen’s right to own, carry, display, etc etc etc a gun.
Ideally they would put teeth in the law so that if some government tries to “infringe” that that person pay a heavy criminal and civil burden, but I’m sure that is a bridge WAY too far.
Then we need to get better at whackamole to press the need for a supreme court ruling. Sucks but need to fight it out till then.
Or shysters learn to read Bruen (of the CONSTITUTION).
basically I think: circuit Court decisions, usually apply in the circuit Court jurisdiction unless the decision is specifically applied to the plaintiff(s).
Who cares? Freedom starts between the ears. Start acting like it.
Justice and the US Constitution are dead in this country. They’ve been replaced by entirely subjective, whorish “lawfare”. It’s a pay-to-play, 3rd world jungle, now. I mean, do any of you SERIOUSLY think that the ATF would prosecute Hunter Biden, if they found a smoking AR Pistol in his hand, and a 100 dead school kids in front of him? It’s all who you know, who you are, and the $$$ you can bring to the table. This judge, ALL THE JUDGES, and the USSC Justices knows what the 2A says, incontrovertibly, and what the original writings of the founding fathers who signed the US Constitution, and first amendments SAY the 2A meant. They just don’t respect it, other than perhaps a legal exercise in futility (e.g. “How many angels can dance on the head of a pin” … kind of irrelevant stuff).
“ex post facto” – I suppose the JBT at ATF would say it’s a regulation not a law (a distinction without a difference).
While breaking up/terminating the FBI and “Justice” add ATF.
ATF originated as tax collectors on booze and tobacco. Firearms and later explosives got tossed in. Until BATFE was lumped in under Homeland, they were under treasury. Either put the Bureau back to tax collecting status, or disband the mess and give FBI their forensic duties and the Marshal’s service their law enforcement duties. FBI needs to be returned to their role as investigative authority only with again, the Marshal’s Service enforcing arrest warrants etc.
Yeah but, collecting taxes from bootleggers often had a distinct law enforcement component, even a hundred years ago. They had to be to be allowed to carry arms and to use them (which was sometimes necessary when people running stills and corn likker did not wish to be apprehended).
Federal Court enters injunction against Biden’s Pistol Brace Rule.
https://www.youtube.com/watch?v=P1EIjrqvjCo
@LKB
“It’s good news for the named plaintiffs, but at this point that’s all”.
Seems that FPC is representing its membership, along with other named appellants, which would include all the members of FPC as appellants, everywhere.
What glorious entertainment it would be to essentially put every state on notice that the injunction applies to each FPC member, and that regulation/suspension of regulation requires identifying each member in each state, and that authorities must either adopt universal injunction, or notify all FFLs and state agencies of those individuals granted injunctive relief.
I suspect Cody will be making that argument to the Fifth Circuit, but I fear it’s a bridge too far. Look for an order clarifying that the injunction applies only to actions against the named, non-association plaintiffs.
Again, getting an injunction pending the appeal of the denial of a preliminary injunction is an *insanely* heavy lift procedurally, and I am more than a bit surprised (pleasantly) that the court did so. But remember the old saw about pigs getting fat . . . .
Aaaaand . . . FPC has indeed made the associational standing argument:
https://assets.nationbuilder.com/firearmspolicycoalition/pages/6710/attachments/original/1684873902/Mock_v_Garland_Motion_for_Clarification.pdf?1684873902
“Aaaaand . . . FPC has indeed made the associational standing argument:”
Was FPC deficient in stating their original motion for injunction, as to who the list of impaired entities?
“Was FPC deficient in stating their original motion for injunction, as to who the list of impaired entities?”
I don’t think so. I just think the panel didn’t think through all the permutations of how it worded its order. E.g., as FPC points out in the linked motion for clarification, while the injunction applies to the named plaintiffs, does it also apply to people living under the same roof as said plaintiffs who ATF could claim have “constructive possession” of an unpapered NFA weapon?
Appeals courts were not bashful about making Trump EOs/EAs nation-wide injunctions, yet shy away from issuing a similar nation-wide injunction regarding a “first class”, enumerated right.
Where there was a district court injunction, perhaps.
But where you are seeking an injunction pending the appeal **of a denial of a preliminary injunction,** that’s a very, very different kettle of fish.
From a purely procedural standpoint, appealing any denial of a preliminary injunction is an exceptionally heavy lift. Getting the appeals court to issue an injunction while it considers that heavy lift is almost unheard of. Getting the court to extend it beyond the named parties is, as I have said before, probably a bridge too far.
@LKB
“I just think the panel didn’t think through all the permutations of how it worded its order.”
But, was that failure to be clear driven by the FPC being unclear about the entities filing the motion for injunction?
@LKB
“Where there was a district court injunction, perhaps.”
Ok. I “see” the difference.
Thanx.
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