The following article was originally published in the Ohio Capital Journal and published on News5Cleveland.com under a content-sharing agreement.
Last week, federal courts gave gun rights activists two significant wins, both at the expense of the Bureau of Alcohol, Tobacco and Firearms. The U.S. Supreme Court tossed a rule banning bump stocks, and a district court in Texas decided a different rule reclassifying pistol braces had to go, too.
A bump stock uses the momentum of a gun’s recoil to help fire additional rounds, making it operate like an automatic weapon, which are illegal. A pistol brace helps stabilize the weapon, often against a shooter’s shoulder. The ATF determined braces turn a pistol into a short-barreled rifle, which are tightly regulated.
The ATF, long a boogeyman to those who support greater gun rights, has given impetus to state legislative efforts in response to perceived government overreach. In Ohio, the pistol brace rule helped drive support for the Second Amendment Preservation Act (SAPA), which attempts to build a kind of firewall between local police departments and federal agencies.
Local cops shouldn’t be helping federal agents enforce an “unlawful” and misguided rule, SAPA’s supporters argued. In a particularly colorful moment, Tammy Weaver argued, “a pistol brace no more makes a pistol a short-barreled rifle than attaching a pony to a Budweiser wagon makes it a Clydesdale.”
But after clearing committee, the legislation has languished waiting for a vote from the full Ohio House. Now, with federal courts making the proposal’s catalyst effectively moot, it’s unclear what’s next for the bill.
Court progress
A man named William Mock challenged the ATF’s pistol brace rule in Texas. After failing to get a preliminary injunction in the federal district court, the plaintiffs took the case to the 5th Circuit Court of appeals. There, a divided panel reversed the decision and sent it back to the district court.
Circuit Judge Jerry Smith wrote that the ATF rule was legislative rather than interpretive in nature. Because it carries the force of law, that reasoning continues, the ATF’s final rule has to represent a “logical outgrowth” of its initial proposal. Here, Smith writes, the rule fails.
The proposed rule used a worksheet with a complicated points system to determine whether a braced pistol constitutes a short-barrelled rifle. The final rule replaced that approach with a six-factor test.
“Nothing in the proposed rule put the public on notice that the worksheet would be replaced with a six-factor test based on almost entirely subjective criteria,” Smith wrote.
The appeals court sent the case back to the district level and directed it to reconsider a preliminary injunction in light of the appeals court’s findings.
The district court granted a preliminary injunction in October putting the ATF’s rule on hold — at least for the plaintiffs in the case. Last week, the same judge determined the rule was so flawed it had to be vacated.
“In this case, vacatur is appropriate given the court’s conclusion that defendants’ adoption of the Final Rule violated the (Administrative Procedure Act’s) procedural requirements,” Judge Reed O’Connor wrote. “An illegitimate agency action is void ab initio and therefore cannot be remanded as there is nothing for the agency to justify.”
Ohio intersections
In a press release, Firearms Policy Coalition, one of the plaintiffs in the pistol brace case indicated they “look forward to defending this victory on appeal and up to the Supreme Court, just as we have in other cases.”
The U.S. Supreme Court’s rejection of the ATF’s bump stock ban suggests any appeal efforts against the pistol brace decision will be an uphill fight. In his opinion, Justice Clarence Thomas takes a parsimonious view of the federal law’s definition of a “machine gun.”
“A semiautomatic rifle equipped with a bump stock is not a ‘machine gun’ because it cannot fire more than one shot ‘by a single function of the trigger,’” Thomas wrote for the majority, adding, “ATF therefore exceeded its statutory authority by issuing a rule that classifies bump stocks as machine guns.”
In addition, Thomas chided the agency for its rapid change of heart on the accessory following a mass shooting in Las Vegas. Executive director of the Buckeye Firearms Association Dean Rieck emphasized that about-face in a press release applauding the court decision.
“For years, this device had been considered legal,” he said, “Then the Justice Department, in an arbitrary move, changed its mind and exceeded its authority to reclassify the device and make it illegal.”
The 5th Circuit and Texas district court judges highlight a similar fact pattern in their pistol brace decisions. Both note the ATF condoned the accessories for years prior to its rule restricting them.
For its part the organization Ohio Gun Owners was quick to link the bump stock and pistol brace cases. In video posted online referencing the bump stock decision, the group’s leader Chris Dorr said, “here’s why this is good news, even if you don’t have one.”
“This ruling is almost a guaranteed death sentence for the ATF’s even more lawless rule change on the pistol brace ban,” he went on. “Which means these degenerate lefties are getting told by the court, if they want to pass gun control they’re going to have to do it through Congress.”
Notably, while the ATF’s pistol brace rule would make owning one more expensive and tedious, it did not actually ban them.
The Second Amendment Preservation Act
But while Dorr took a victory lap for the court decisions, those wins might not help his chief legislative priority, the Second Amendment Preservation Act.
In a text message Dorr insisted, “Ohio Gun Owners is not worried about the recent SCOTUS firearm opinions hampering our efforts to pass SAPA in Ohio because the pistol brace portion was a small portion of the underlying bill.”
As Dorr describes it, the broader effort of that legislation is to ensure Ohio officers are prohibited from “enforcing federal gun control of any kind.”
But the way it gets there is jarring even for many lawmakers who are receptive to expansive gun rights. The break between state and federal agencies contemplated in the bill is so complete many Ohio law enforcement groups oppose it. They contend they might lose access to investigative resources managed by the feds, and the bill’s $50,000 civil penalties make any violations financially risky.
The bill has been waiting for a vote since December, but House Speaker Jason Stephens has yet to bring it forward. In a written statement, he said lawmakers remain committed to protecting gun rights.
“As long as the Biden Administration continues its assault on the Second Amendment the House Republican Caucus will protect Ohio gun owners from government overreach,” Stephens wrote.
And despite the delay, Dorr insisted the outlook is good.
“The appetite to pass it yet this session is still alive and well in the Republican caucuses,” he said.
