November 10, 2023 – There have been three major federal court decisions in the past week affecting firearm laws across the nation. Two decisions are wins for the firearm industry and individual owners, while one may be considered a loss. The decisions affect firearm laws concerning bans on so-called “assault weapons” and “large capacity” magazines, as well as ATF regulations concerning stabilizing braces, and frames and receivers.
Illinois “Assault Weapon” and “Large Capacity” Magazine Bans
As we previously reported, the appeals of several cases arguing that the Protect Illinois Communities Act (“PICA”), and three municipal ordinances banning the sale and possession of “assault weapons” and “large capacity” magazines, violate the Second Amendment were consolidated before the U.S. Court of Appeals for the Seventh Circuit in Bevis, et al. v. Naperville, et al. Certain lower courts had issued preliminary injunctions enjoining enforcement of these laws, and others had denied motions for preliminary injunctions. On November 3, 2023, the Court of Appeals issued a 2-1 decision that vacated (reversed) the district court decisions that issued injunctions, and affirmed those that had denied injunctions. The majority held that semi-automatic AR-15 style rifles and the magazines that come standard with them are not “arms” protected by the Second Amendment because they are “indistinguishable” from full-automatic machineguns like the M16. On that basis, the majority concluded that the state and local governments “have a strong likelihood of success” in defending the laws on constitutional grounds. The Seventh Circuit’s ruling is significant because it marks the first time a federal appeals court has issued a decision upholding “assault weapon” and “large capacity” magazine bans since the Supreme Court’s Bruen opinion last June. Additionally, anti-gun advocates will likely try to extend the language used by the Court to further their causes. We are continuing to monitor these cases as the plaintiffs may seek review en banc by all of the active judges on the Seventh Circuit Court of Appeals.
ATF Pistol Stabilizing Brace Rule
On November 8, 2023, the U.S. District Court for the Northern District of Texas issued a preliminary injunction barring enforcement of the ATF’s pistol stabilizing brace rule nationwide. The plaintiffs in Britto, et al. v. ATF, three veterans who possessed firearms equipped with stabilizing braces, argued that the rule: (1) violates the Second Amendment; (2) violates separation of powers and nondelegation principles; (3) conflicts with the NFA’s definition of “rifle”; (4) is arbitrary and capricious under the Administrative Procedures Act (“APA”); and (5) is void for vagueness. The district court recognized the Fifth Circuit’s recent decision in Mock v. Garland holding that the ATF’s final stabilizing brace rule “was not a logical outgrowth of the Proposed Rule,” and it therefore “must be set aside as unlawful” because the manner in which it was enacted violated the APA. In granting plaintiffs’ motion for a preliminary injunction, the district court held that, based on the Garland decision, plaintiffs have demonstrated a substantial likelihood of success on the merits, a substantial threat of irreparable harm if the injunction is not granted, the threatened injury outweighs any harm that will result from the injunction, and an injunction is in the public interest. As a result, the district court granted the injunction and stayed the rule in its entirety. Although the court enjoined enforcement of the ATF’s stabilizing brace nationwide, it is certain to be appealed and there is a potential that the injunction may be stayed pending appeal. For that reason, we recommend that manufacturers and sellers not resume the sale of pistols with stabilizing braces at this time.
ATF Frame and Receiver Rule
In another victory for the firearms community, the Fifth Circuit Court of Appeals issued a decision on November 9, 2023 in VanDerStok v. Garland holding that portions of the ATF’s recent frame or receiver rule are unlawful. The Fifth Circuit struck down parts of the frame or receiver rule targeting privately made firearms or “ghost guns” without serial numbers and defining a “firearm” to include weapon parts kits. The Fifth Circuit held that the rule “flouts clear statutory text and exceeds the legislatively-imposed limits on agency authority” and concluded that it constitutes unlawful agency action, in direct contravention of the legislature’s will. The panel also concluded that the district court had improperly struck down the entirety of the frame or receiver rule, and remanded the case to the district court to fashion an appropriate remedy. As a side note regarding VanDerStok, this decision was issued six days after the Seventh Circuit’s opinion in Bevis. In a footnote, while not directly criticizing the Bevis holding, the Fifth Circuit noted that the “Supreme Court has held that, to be banned, a weapon must be ‘both dangerous and unusual,’ and thus, ‘the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of arms commonly used for lawful purposes.’ Of course, for many years now, millions of AR-15 rifles have been sold to civilians, who may lawfully possess them.” This footnote seemingly suggests that the Fifth Circuit will not follow the Seventh Circuit’s logic as to whether AR-15 style rifles are protected under the Second Amendment, which could set up another issue for the Supreme Court to tackle.
Renzulli Law Firm, LLP will continue to monitor these cases and other firearm-related litigation around the country. If you have any questions concerning firearms related litigation, please contact John F. Renzulli or Christopher Renzulli.