As you may have seen in the news, there was a second favorable decision from the Fifth Circuit Court of Appeals in favor of the plaintiffs in the case of Mock v. Garland. The effect of the decision is limited, however: the Circuit Court did not issue an injunction but only decided that the plaintiffs had met the first of four elements necessary to obtain a preliminary injunction.
As some background, the plaintiffs in that case include William Mock and Christopher Lewis, two Texans who own braced firearms; Maxim Defense, a company that sells firearms equipped with pistol braces; and the Firearms Policy Coalition, a pro-gun rights legal advocacy group. The plaintiffs had attempted to obtain a preliminary injunction against the ATF's pistol brace rule going into effect. The case was heard before a federal district court in Forth Worth, Texas. To obtain a preliminary injunction, the district court judge noted that the plaintiffs needed to demonstrate: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable harm; (3) that the balance of hardships weighs in the movant's favor; and (4) that issuance of a preliminary injunction will not disserve the public interest. The district court's decision focused on the first element. Unfortunately, the district judge decided that the plaintiffs were unlikely to succeed on the merits of the case and, on March 30, 2023, denied the petition for an injunction. He did not address the other three elements.
The matter was appealed to the Firth Circuit Court of Appeals. On May 23, 2023, the Fifth Circuit Court of Appeals issued a temporary injunction on enforcement of the rule as to the plaintiffs to the suit pending appeal. Unfortunately, the stay only applied to the named plaintiffs and not all gun owners.
On June 29, 2023, a Fifth Circuit panel heard oral arguments in the case. Yesterday, the Fifth Circuit issued its decision finding that the plaintiffs had a substantial likelihood of succeeding on the merits. Specifically, the court found that the ATF finalized the rule in January without giving the public a meaningful chance to comment on it, making it invalid under the federal Administrative Procedure Act (APA). (As you may remember, the ATF had made last minute changes to the rule that eliminated a proposed "point system" with fairly straightforward worksheets to determine if a brace would be banned on a particular firearm in favor of what was essentially an outright ban of most any brace using vague criteria about what might be acceptable). The Reuters article also relates:
The court did not immediately block enforcement of the rule, instead sending the case back to U.S. District Judge Reed O'Connor in Fort Worth, Texas. O'Connor will have to decide whether to issue an order blocking enforcement while the case goes forward, and if so, whether that order will apply nationwide or only to the plaintiffs in the case.
Specifically, as this decision only deals with the first element in establishing a right to a preliminary injunction, the district court will now have to decide whether the other three elements have been met. This means that the district court could, again, refuse to issue an injunction.
The decision also did not address the more general issue of whether the proposed rule violated the Second Amendment, but "Circuit Judge Don Willett said in a concurring opinion that the rule likely violated not only the Administrative Procedure Act, but also the right to bear arms under the Second Amendment of the Constitution...." Specifically, he wrote (footnote omitted):
In my view, protected Second Amendment “conduct” likely includes making common, safety-improving modifications to otherwise lawfully bearable arms. Remember: ATF agrees that the weapons here are lawfully bearable pistols absent a rearward attachment. Congress might someday try to add heavy pistols to the NFA and the GCA, but it hasn't yet. These pistols are therefore lawful. Adding a rearward attachment—whether as a brace or a stock—makes the pistol more stable and the user more accurate. I believe these distinctions likely have constitutional significance under Bruen.
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