George W. Bush-Appointed Judge Denies Preliminary Injunction Against ATF Pistol Brace Rule

On September 12, 2023, North Dakota District Judge Daniel L. Hovland, a George W. Bush appointee, denied the Firearms Regulatory Accountability Coalition’s (FRAC’s) motion for a preliminary injunction against the ATF’s pistol stabilizer brace rule.

FRAC was joined by 25 states in bringing the suit, contending that the ATF’s Final Rule on stabilizer braces “and the ATF’s interim guidance violate the Administrative Procedure Act (“APA”).”

The ATF’s Final Rule was proposed January 31, 2023 and went into effect June 1, 2023. Breitbart News reported that the proposed rule was accompanied by a statement from the ATF which said:

This rule is effective the date it is published in the Federal Register.  Any weapons with “stabilizing braces” or similar attachments that constitute rifles under the NFA must be registered no later than 120 days after date of publication in the Federal Register; or the short barrel removed and a 16-inch or longer rifle barrel attached to the firearm; or permanently remove and dispose of, or alter, the “stabilizing brace” such that it cannot be reattached; or the firearm is turned in to your local ATF office. Or the firearm is destroyed.

In his decision, Judge Hoyland noted, “The Plaintiffs attack the Final Rule on several grounds: (1) that the Final Rule exceeds the ATF’s statutory authority, (2) that the factors adopted by the Final Rule are otherwise unlawful, and (3) that the adjudications are unlawful and confirm the Final Rule is arbitrary.”

He rejected these plaintiffs’ contentions one at a time, using each rejection to stress his contention that the plaintiffs’ case cannot succeed.

Regarding the claim that the ATF exceeded its statutory authority, Hoyland wrote, “As courts have consistently recognized, the ATF has the authority to interpret the [National Firearms Act] and [the Gun Control Act] where there is ambiguity, meaning that it is not likely the Plaintiffs will succeed on this claim.”

As for the claim that the ATF rule is unlawful, Hoyland noted that similar claims were being made in other cases in other courts, particularly the United States Court of Appeals for the Fifth Circuit. He pointed out that a Fifth Circuit panel voted 2 to 1 in favor of the plaintiffs in that case, but made clear he agreed with the dissenting judge rather than the majority.

In addressing the claim that the ATF’s rule is arbitrary, Hoyland wrote, “The Plaintiffs and other litigants have argued that the definition of a rifle should be limited to devices that are designed to be exclusively fired from the shoulder, but many courts have rejected this interpretation of the statute. …This Court finds the ATF has acted within the ‘zone of reasonableness’… Accordingly, the Plaintiffs have not met their burden of demonstrating that the regulation is arbitrary and capricious.”

Hoyland also denied the motion for a preliminary injunction against the ATF rule for numerous reasons, one of which was his opinion that the final rule is “interpretive,” and therefore “not subject to the same requirements as legislative rules.”

“The irony here is that ATF’s interpretation of federal gun control laws comes under a legal doctrine called Chevron deference, based on a 1984 Supreme Court case,” explained Breitbart News senior legal contributor Ken Klukowski. “However, the Supreme Court this year will hear the Loper Bright case, where the justices are considering overruling Chevron.”

“If that happens, then the ATF will not be able to get away with this going forward, and this trial court decision on the pistol brace rule can and should be reversed on appeal,” Klukowski added, also disclosing that he coauthored a brief in Loper Bright that focused on how ATF has taken advantage of Chevron deference to push gun controls without Congress.”

The case is FRAC v. Garland, No. 1:23-cv-24 in the U.S. District Court for the District of North Dakota.

AWR Hawkins is an award-winning Second Amendment columnist for Breitbart News and the writer/curator of Down Range with AWR Hawkins, a weekly newsletter focused on all things Second Amendment, also for Breitbart News. He is the political analyst for Armed American Radio and a Turning Point USA Ambassador. He was a Visiting Fellow at the Russell Kirk Center for Cultural Renewal in 2010, a speaker at the 2023 Western Conservative Summit, and he holds a Ph.D. in Military History, with a focus on the Vietnam War (brown water navy), U.S. Navy since Inception, the Civil War, and Early Modern Europe. Follow him on Instagram: @awr_hawkins. You can sign up to get Down Range at breitbart.com/downrange. Reach him directly at awrhawkins@breitbart.com.