Joined by Second Amendment advocates at a Huntington gun store and range, West Virginia Attorney General Patrick Morrissey announced on Thursday afternoon that his office, along with the AGs in two dozen other states, are challenging the ATF’s new rule on pistol stabilizing braces with a new federal lawsuit.
Declaring that “this administration is hellbent on going after Second Amendment rights,” Morrissey called out the ATF for reversing course on years of previous guidance declaring that attaching the braces to pistols does not turn them into short-barreled rifles; arms that are restricted under the National Firearms Act of 1934. Under the new rule, pistols with braces that the ATF deems to be intended to aid in a pistol being fired from the shoulder must be registered under the NFA by May 31st, or else the owner must permanently remove and dispose of the brace.
Morrissey says the law is intentionally vague, but the intent is clear enough; to “hurt hardworking Americans [by] making it more expensive and more difficult to own weapons that are safe to utilize.” From the accompanying press release to Morrissey’s news conference:
“Let’s call this what it is: an effort to undermine Americans’ Second Amendment rights,” Attorney General Morrisey said. “This is an egregious final rule turning millions of common firearms accessories into ‘short barreled rifles.’ This is a completely nonsensical regulation.”
“This is part of the continued attack by the Biden administration against lawful gun owners.”
The rule, called Factoring Criteria for Firearms with Attached Stabilizing Braces, indicated that when manufacturers, dealers and individuals pair stabilizing braces with 99% of pistols, they must comply with the laws that regulate those rifles, including the National Firearms Act (NFA).
That means those who use a stabilizing brace would have to apply for a permit with the ATF within four months, pay a tax and face restrictions on future transfer of the brace.
Stabilizing braces were designed to help people with disabilities use pistols. Since then, many others, including older persons, people with limited mobility and those with smaller stature have come to use the braces. For more than a decade, these braces have been sold as firearms attachments not subject to regulation.
The rule, however, affects most all pistol and handgun owners—many lawful gun owners use stabilizers to prevent some recoil when using firearms and to help with accuracy.
“We should not be making it harder for senior citizens and people with disabilities—and many disabled veterans—to defend themselves,” Attorney General Morrisey said. “I will continue stand up for the Second Amendment rights of all West Virginians.”
“This is also another case of a federal agency not staying in its lane and doing the job the constitution clearly delegates to Congress—writing laws,” the Attorney General added. “The Separation of Powers clearly bars federal agencies from making new laws without Congressional directive.”
According to Morrissey’s office, West Virginia is joined in the federal complaint by 24 other Attorneys General from the states of Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Missouri, Mississippi, Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, Virginia, and Wyoming.
While Morrissey made the announcement in Cabell County, West Virginia, he said the lawsuit itself is being filed in U.S. District Court in North Dakota by former U.S. Attorney and current North Dakota AG Drew Wrigley. NRA-ILA’s Art Thomm, who also spoke at the announcement of the lawsuit along with representatives from Gun Owners of America and the West Virginia Citizens Defense League, noted that the coalition of AGs are adding their voices to a chorus of opposition to the new rule including a number of other groups who’ve already filed suit. In fact, Morrissey’s press release gives the impression that the ongoing lawsuit will be consolidated with the AG’s new complaint.
“This is also another case of a federal agency not staying in its lane and doing the job the constitution clearly delegates to Congress—writing laws,” the Attorney General added. “The Separation of Powers clearly bars federal agencies from making new laws without Congressional directive.”
The lawsuit is asking the United States District Court for the District of North Dakota Western Division to declare unlawful and set aside the rule, among other things.
“In sum, ATF’s factors are little more than window dressing for the agency to reach whatever outcome it wants, regardless of the facts,” according to the lawsuit.
Attorney General Morrisey was joined in the lawsuit by more than 20 state attorneys general. The other plaintiffs are Firearms Regulatory Accountability Coalition Inc. (an advocacy group), SB Tactical (a brace manufacturer), B&T USA (a firearms importer and manufacturer) and Richard Cicero, a retired police firearms instructor and a wounded warrior who uses stabilizing braces.
FRAC filed its own lawsuit in North Dakota last month and the Second Amendment Foundation, a Washington company, and two private citizens have another lawsuit underway in U.S. District Court in northern Texas. In a third lawsuit, called Watterson v. BATFE, U.S. District Judge Amos Mazzant said on Thursday that he will decide whether to grant injunctive relief against the new rule by March 24th.
You might have noticed that Texas Attorney General Ken Paxton is not included in the list of AGs released by Morrissey’s office. That’s because Paxton is filing his own lawsuit against the new rule, in conjunction with Gun Owners of America and an individual plaintiff.
NEW: Texas v. ATF (S.D. TX): Texas and @GunOwners file lawsuit challenging the ATF’s pistol brace rule. https://t.co/rN12hUE6Xc pic.twitter.com/zn8cyJPZTF
— Rob Romano (@2Aupdates) February 9, 2023
Besides the efforts to undo the new rule in court, several Republicans in Congress have introduced measures to nullify the rule using the Congressional Review Act. That still requires a majority vote in order to be approved, however, and with the Senate firmly in Democratic control ligitation is probably the quickest way to stop the rule from being enforced before it can ensnare millions of legal gun owners.
Today’s announcements are great news for gun owners, and it demonstrates a commitment to defending the Second Amendment on the part of these AGs, who didn’t have to pick this particular fight with the Biden administration. I’m particularly pleased to see Virginia Attorney General Jason Miyares join this coalition, since I had to putt up with anti-gunner Mark Herring filing brief after brief in support of gun control legislation when he was AG in the state I call home. If your AG is listed above, you might reach out to their office and say thanks for getting involved in this fight, as well as encourage them to be just as proactive going forward. This won’t be the last threat to our Second Amendment rights posed by the Biden administration, particular with gun control bills going nowhere in a divided Congress. The ATF will continue to be used to advance Bidens’ anti-2A agenda, and these AGs’ responsibility in defending the Second Amendment doesn’t end here.
You can check out the video of Morrissey’s announcement here, but be aware that the live stream was pretty buggy for most of the press conference so it’s difficult to follow what the speakers are saying.