Firearms Regulatory Accountability Coalition, Inc. v. Garland

112 F.4th 507

FIREARMS REGULATORY ACCOUNTABILITY COALITION, INC.; State of West Virginia; State of North Dakota; State of Alabama; State of Alaska; State of Arkansas; State of Florida; State of Georgia; State of Idaho; State of Indiana; State of Iowa; State of Kansas; State of Kentucky; State of Louisiana; State of Mississippi; State of Missouri; State of Montana; State of Nebraska; State of New Hampshire; State of Oklahoma; State of South Carolina; State of South Dakota; State of Tennessee; State of Utah; State of Virginia; State of Wyoming; NST Global, LLC, doing business as SB Tactical; B&T USA, LLC; Richard Cicero, Plaintiffs-Appellants v. Merrick B. GARLAND, in his Official Capacity, as Attorney General of the United States; The Bureau of Alcohol, Tobacco, Firearms and Explosives; Steven Dettelbach, in his Official Capacity, as Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, Defendants-Appellees Members of Congress, Amicus on Behalf of Appellants.

No. 23-3230

United States Court of Appeals, Eighth Circuit

Submitted: March 14, 2024

Filed: August 9, 2024

Appeal from United States District Court for the District of North Dakota

Counsel who presented argument on behalf of the appellants and appeared on the brief were Stephen J. Obermeier, of Washington, DC. and Michael Ray Williams, of Charleston, WV. The following attorney(s) appeared on the appellant brief; Thomas M. Johnson, Jr., of Washington, DC., Jeremy Joseph Broggi, of Washington, DC., Michael D. Faucette, of Washington, DC., Boyd Garriott, of Washington, DC., Benjamin J. Sand, of Bismark, ND., Lindsay See, Solicitor General, of Charleston, WV., Philip Axt, of Bismark ND., Edmund G. LaCour, Jr., Solicitor General, of Montgomery, AL., Charles E. Brasington, of Anchorage, AK., Nicholas J. Bronni, Solicitor General, of Little Rock, AR., Dylan L. Jacobs, Deputy Solicitor General, of Little Rock, AR., Natalie P. Christmas, of Tallahassee, Florida, Stephen Petrany, Solicitor General, of Atlanta, GA., Betsy M. Denardi, of Indianapolis, IN., Theodore J. Wold, Solicitor General, of Boise, ID., Joshua N. Turner, Deputy Solicitor General, of Boise, ID., Eric H. Wessan, Solicitor General, Of Des Moines, IA., Jesse A. Burris, of Topeka, KS., Elizabeth B. Murrill, Solicitor General, of Baton Rouge, LA., J. Scott St. John, Deputy Solicitor General, of Baton Rouge, LA., Tracy Short, Baton Rouge, LA., Morgan Brungard of Baton Rouge, LA., Aaron J. Stilletto, of Frankfort, KY., Justin L. Matheny, Deputy Solicitor General, of Jackson, MS., Joshua M. Divine, Solicitor General, of Jefferson City, MO., Jeff P. Johnson, Deputy Solicitor General, of Jefferson City, MO., Eric J. Hamilton, Solicitor General, of Lincoln, NE., Christian B. Corrigan, Solicitor General, of Helena, MT., Peter Martin Torstensen, Jr., of Helena, MT., Brandon F. Chase, of Concord, NH., Garry M. Gaskins, II, Solicitor General, of Oklahoma City, OK., Zach West, of Oklahoma City, OK., Audrey A. Weaver, of Oklahoma City, OK., Charles D. McGuigan, Chief Deputy Attorney General, of Pierre, SD., J. Emory Smith, Jr., of Columbia, SC., Andree S. Blumstein, of Nashville, TN., Whitney D. Hermandorfer, of Nashville, TN., Melissa Holyoak, Solicitor General, of Salt Lake City, UT., Ryan Schelhaas, Chief Deputy Attorney General, of Cheyenne, WY., Andrew N. Ferguson, Solicitor General, of Richmond, VA., Kevin M. Gallagher, of Richmond, VA. and M. Jordan Minot, of Richmond, VA.

Counsel who presented argument on behalf of the appellee and appeared on the brief was Sean Janda, of Washington, DC. The following attorney(s) appeared on the appellee brief; Benjamin Lewis, of Washington, DC., Brian M. Boynton, of Washington, DC., and Abby C. Wright, of Washington, DC.

The following attorney(s) appeared on the amicus brief in support of appellants; Cameron T. Norris, of Arlington, VA., Bryan K. Weir, of Arlington, VA., Tiffany H. Bates, of Arlington, VA.

Before GRUENDER, SHEPHERD, and GRASZ, Circuit Judges.

GRASZ, Circuit Judge.

The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) promulgated a final agency rule¹ interpreting the National Firearms Act of 1934 (NFA) and the Gun Control Act of 1968 (GCA). The Final Rule reclassifies pistols equipped with stabilizing braces (braced weapons) as NFA-regulated "short-barreled rifles," which subjects those braced weapons to NFA/GCA regulation. The plaintiffs—a stabilizing-brace manufacturer, a firearm manufacturer, a gun association, an individual owner of braced weapons, and twenty-five states (collectively, the Coalition)—sued to enjoin the Final Rule, arguing it exceeds the ATF's statutory authority under the NFA and GCA and is arbitrary and capricious. The district court denied the Coalition's motion for a preliminary injunction. The Coalition appeals that denial. We conclude the Coalition is likely to succeed on the merits of its arbitrary-and-capricious challenge, so we reverse and remand to the district court.

I. Background

A. The National Firearms Act and the Gun Control Act

Congress passed the National Firearms Act of 1934, 26 U.S.C. §§ 5801-5872, in response to rampant criminal gang violence. See Mock v. Garland, 75 F.4th 563, 570 & n.12 (5th Cir. 2023). The NFA's purpose is to "regulate certain weapons likely to be used for criminal purposes," such as easily-concealed weapons. United States v. Thompson/Ctr. Arms Co., 504 U.S. 505, 517, 112 S.Ct. 2102, 119 L.Ed.2d 308 (1992) (plurality opinion). Congress authorized the Attorney General to enforce both the NFA and GCA. See 26 U.S.C. §§ 7801(a)(2), 7805; 18 U.S.C. § 926. In turn, the Attorney General delegated that regulatory authority to the ATF. See 28 C.F.R. § 0.130; Final Rule at 6,481.

The NFA's regulations apply only to "firearms." See 26 U.S.C. § 5861. Accordingly, "'[f]irearms' is a term of art—one that is both highly under- and over-inclusive (as compared to the word's ordinary meaning today)." Mock, 75 F.4th at 567. For example, "pistols" and "revolvers"— which the ordinary person would understand to be firearms—are not NFA "firearms."² 26 U.S.C. § 5845(a)(5), (e) (the term "any other weapon" does not include "a pistol or a revolver...."). NFA firearms include "short-barreled rifles," which are any "rifle having a barrel or barrels of less than 16 inches in length," id. § 5845(a)(3), or "a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length," id. § 5845(a)(4). A "rifle" is defined as "a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder...." Id. § 5845(c). Meanwhile, the terms "made or remade" are defined as "manufacturing (other than by one qualified to engage in such business under this chapter), putting together, altering, any combination of these, or otherwise producing a firearm." Id. § 5845(i). "Congress placed stricter requirements on the making and possession of short-barreled rifles, deeming them to be dangerous and unusual weapons and posing a significant danger to the public," Final Rule at 6,481, as their concealable nature makes criminals more likely to use them, see Thompson, 504 U.S. at 517, 112 S.Ct. 2102 (plurality opinion). Short-barreled rifles, as with other NFA/GCA firearms, are not per se illegal or banned weapons, but the making, selling, owning, and transferring of short-barreled rifles is highly regulated. A few example regulations include:

• any person possessing a short-barreled rifle must register his or her possession in the National Firearms Registration and Transfer Record, 26 U.S.C. § 5841;

• any person who wants to transfer or make a short-barreled rifle must first obtain the U.S. Attorney General's approval, see 26 U.S.C. §§ 5812, 5822, and pay a $200 tax, see 26 U.S.C. §§ 5811, 5821; and

• "any person engaged in the business of importing, manufacturing, or dealing NFA firearms must register with the Attorney General and pay a special (occupational) tax," Final Rule at 6,479 (citing 26 U.S.C. §§ 5801-02).

Failing to comply with the requirements of the NFA and GCA begets serious consequences, including fines,³ forfeiture of the firearm,⁴ and felony conviction and imprisonment⁵ followed by a lifetime ban on firearm ownership.⁶ See Mock, 75 F.4th at 570-71. In other words, "those statutory restrictions have teeth," and those teeth will bite anyone who, either intentionally or negligently, fails to comply with these regulations. See id. at 570 (emphasis added). "Consequently, there are immense incentives not to own [a short-barreled rifle] but instead to have a non-NFA-regulated pistol." Id. at 571.

B. Weapons with Attached Stabilizing Braces

In 2012, plaintiff SB Tactical developed its pistol stabilizing brace "to assist people with disabilities so that they could fire ... heavy pistols safely and comfortably" with one hand. See Final Rule at 6,479. SB Tactical describes its stabilizing braces as "orthotic devices that attach to the rear of a firearm," consisting of "a strap and a cuff made of elastomer material," which "allow[s] the shooter to secure the pistol against their forearm."⁷

SB Tactical asked the ATF whether its stabilizing brace—when attached to the rear of a pistol—would change a pistol's classification under the NFA or GCA. See Final Rule at 6,479. The ATF initially answered no, determining the stabilizing brace "was not designed or intended to fire a weapon from the shoulder" but rather to allow a weapon to be "held and operated with one hand." Id. (internal quotation marks omitted). Thus, the ATF initially concluded the braced pistol was not subject to the NFA's controls. Id. Plaintiff Richard Cicero was one of the stabilizing brace's earliest users. A combat veteran who lost both his right arm and leg while serving his country in Afghanistan, Cicero discovered the stabilizing brace helped him and other physically-challenged shooters to use heavy pistols, which they would otherwise not be able...