August 2, 2023

BELLEVUE, WA – The Second Amendment Foundation is delighted with the 2-1 ruling by a Fifth U.S. Circuit Court of Appeals panel that the Biden administration’s “final rule” on pistol braces is “likely illegal” because the government violated the Administrative Procedure Act (APA) by adopting the rule without meaningful opportunity for public comment.

The Bureau of Alcohol, Tobacco, Firearms and Explosives—under Joe Biden’s hand-picked director Steve Dettelbach—violated the APA. Writing for the majority, Fifth Circuit Judge Jerry Smith observed, “(P)laintiffs establish a substantial likelihood of success on the merits. The ATF incorrectly maintains that the Final Rule is merely interpretive, not legislative, and thus not subject to the logical-outgrowth test. The Final Rule affects individual rights, speaks with the force of law, and significantly implicates private interests. Thus, it is legislative in character. Then, because the Final Rule bears almost no resemblance in manner or kind to the Proposed Rule, the Final Rule fails the logical-outgrowth test and violates the APA.”

“This is a significant win for gun rights,” noted SAF founder and Executive Vice President Alan M. Gottlieb, “because the arguments in this case are essentially the same as we are making in our own challenge of the pistol brace rule.”

SAF’s case is known as SAF, et al. v. ATF, et al. and is joined by Rainier Arms, LLC and two private citizens, Samuel Walley and William Green. They are represented by attorney Chad Flores at Flores Law in Houston, Texas. SAF has already won a preliminary injunction in that case.

“This ruling,” said SAF Executive Director Adam Kraut, “is a serious setback for the Biden administration’s gun control agenda. As the court noted, the Final Rule was not the logical outgrowth of the original proposed rule, and therefore must be set aside. Thanks to this ruling, we can jump start our own case with very good prospects for success.”