United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED ____________ August 1, 2023 No. 23-10319 Lyle W. Cayce ____________ Clerk

William T. Mock; Christopher Lewis; Firearms Policy Coalition, Incorporated, a nonprofit corporation; Maxim Defense Industries, L.L.C.,

Plaintiffs—Appellants,

versus

Merrick Garland, U.S. Attorney General, in his official capacity as Attorney General of the United States; United States Department of Justice; Bureau of Alcohol, Tobacco, Firearms, and Explosives; Steven Dettelbach, in his official capacity as the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives,

Defendants—Appellees. ______________________________

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:23-CV-95 ______________________________

Before Smith, Higginson, and Willett, Circuit Judges. Jerry E. Smith, Circuit Judge: The National Firearms Act of 1934 (“NFA”) and the Gun Control Act of 1968 (“GCA”) are two of the primary means of federal arms regula- tion and licensure. To that end, the statutes impose heightened, and at times, Case: 23-10319 Document: 00516842296 Page: 2 Date Filed: 08/01/2023

No. 23-10319

onerous requirements on manufacturing, selling, and transferring certain firearms, including short-barreled rifles (“SBRs”). Pistols and handguns are not subject to those extra requirements. In 2012, a federal firearms licensee (“FFL”) submitted a “stabilizing brace” for review to the Bureau of Alcohol, Tobacco, Firearms and Explo- sives (“ATF”) and asked whether that stabilizing brace, when attached to a pistol, transformed the pistol into a rifle and thus an SBR. The stabilizing brace was intended to attach to the forearm and, according to the licensee, to permit disabled and weaker persons to fire pistols more easily. Although the brace also could be used to shoulder the weapon, the ATF initially indicated that the brace did not transform the pistol into a rifle. Now, a decade later, the use of stabilizing braces and braced pistols has dramatically increased. So, in 2021, the ATF issued a Proposed Rule 1 indicating that the agency would use a point system to classify a firearm with a stabilizing brace as either a braced pistol or a rifle. After a comment period, during which the agency received hundreds of thousands of negative comments, the ATF pub- lished the Final Rule. 2 The Final Rule scrapped the points-based approach of the Proposed Rule and, instead, instituted a six-factor balancing test considering every- thing from the weight of the firearm with the stabilizing brace attached to the prevalence of Youtubers’ demonstrating the likely use of the weapon. The Final Rule went into effect on January 31, 2023, but the ATF allowed a grace period of four months, which ended on May 31, 2023, giving

_____________________ 1 Factoring Criteria for Firearms with Attached “Stabilizing Braces,” 86 Fed. Reg. 30826 (June 10, 2021) (“Proposed Rule”). 2 Factoring Criteria fo