https://www.newsmax.com/newsfront/fifth-circuit-pistol-brace-rule-atf/2023/08/02/id/1129450/A panel of three judges of the Court of Appeals for the Fifth Circuit issued a decision Tuesday to reverse a lower court order that rejected a preliminary injunction against the pistol brace rule issued by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), and remanded the case back to the lower court for reconsideration.
The panel, which consisted of Ronald Reagan appointee Jerry E. Smith, Donald Trump appointee Don Willet, and Barack Obama appointee Stephen A. Higginson, did not rule on the constitutionality of the rule but focused on the plaintiff's claim that the rule violated the Administrative Procedure Act (APA).
The panel ruled 2 to 1 against the district court order, noting that the district court treated the rule as "interpretive" in nature, but the circuit court treated it as "legislative" in nature. APA guidelines do not apply to rules that are interpretive, but do apply to rules that are legislative.
"We move on to plaintiffs' claim that the Final Rule violates the APA's procedural and substantive requirements. On that front, plaintiffs 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," the panel stated.
The circuit court also homed in on the differences between the ATF's Proposed Rule and its Final Rule. It said that the difference between the two "violates the APA" and pointed out that "the Proposed and Final Rule must be alike in kind so that commentators could have reasonably anticipated the Final Rule."
However, the panel stated that "the Notice of Proposed Rulemaking (NPRM) and the Final Rule bear little resemblance to one another," and that "it is nigh impossible for a regular citizen to determine what constitutes a braced pistol, and outside of the sixty contemporaneous adjudications that the ATF released, whether a specified braced pistol requires NFA registration."
