It's only been a few days, but we're already starting to see the effects of Donald Trump's executive order protecting the Second Amendment.
On Tuesday, the Department of Justice asked the Eleventh Circuit Court of Appeals to delay oral arguments in the ongoing challenge to the ATF's rule treating most brace-equipped pistols as short barreled rifles; a direct consequence of Trump's executive action.
The federal government asked the Eleventh Circuit to postpone oral arguments in a lawsuit challenging the ATF pistol brace rule, saying that it needs time to review it pursuant to Trump's Second Amendment executive order: https://t.co/wp4cHkCHm6 pic.twitter.com/ueU81R9OVQ
— Firearms Policy Coalition (@gunpolicy) February 11, 2025
The DOJ's request doesn't mean that the administration won't ultimately defend the ATF rule going forward, but I'd say it's far more likely that this is the first step in the Justice Department backing off its support for the rule that was enacted during the Biden administration.
In their request to the appellate court, Acting Assistant Attorney General Brett Shumate and several attorneys in the DOJ's Civil Division specifically point to Trump's executive order as the reason for the delay.
Following a change in administration, on February 7, 2025, President Trump issued an Executive Order titled Protecting Second Amendment Rights. Among other things, the Order directs the Attorney General to “examine” various “actions of executive departments and agencies” to “assess any ongoing infringements of the Second Amendment rights of our citizens, and present a proposed plan of action to the President, though the Domestic Policy Advisory, to protect the Second Amendment rights of all Americans.” And the Order specifically directs the Attorney General, as part of that process, to review all “[r]ules promulgated by the Department of Justice, including by the Bureau of Alcohol,Tobacco, Firearms, and Explosives, from January 2021 through January 2025 pertaining to firearms and/or Federal firearms licenses.”
In light of that development, the government respectfully moves to postpone the March 5 oral argument and to hold this case in abeyance pending review of the challenged rule. An abeyance will conserve party and judicial resources and promote the efficient and orderly disposition of this appeal, including by ensuring that litigation is focused on enduring agency action and informed by the views of current agency leadership. The government respectfully proposes to update the Court with status reports every 60 days.
Though the DOJ is asking the Eleventh Circuit for a 60-day delay, the president's executive order directs Attorney General Pam Bondi and her team to present their proposed plan of action within 30 days of the February 7th directive, so the first status update the Justice Department provides to the appellate court could very well be the last status update as well. If Bondi concludes that the ATF rule is indeed an infringement on our Second Amendment rights, it could be undone through the same process that put it into effect; publishing the rule change in the Federal Register, submitting the proposed rule for public comment (typically a 30-day period), and then formally rescinding the rule.
It's not a particularly fast process, but the ATF doesn't have to enforce the rule while it's being undone... and the DOJ certainly doesn't have to defend it in court.
That just means the same garbage can be brought by the next Democrat admin. We need the mootness exception to apply here and continue to judgment.
— The Vicious AntiFederalist 🇺🇸 (@Enforce2A) February 11, 2025
It's true that if there's no final determination about the constitutionality of the ATF pistol brace rule it could be revived the next time Democrats occupy the White House, but there's also no guarantee that the Supreme Could would grant cert to the lawsuit challenging the rule. There's also at least a small chance that the Eleventh Circuit will uphold the rule if given the opportunity, so while I understand the impulse to keep the litigation alive and moving forward, I'd also argue that it's far more important that the rule be undone, regardless of whether the case continues to judgment after the rule is rescinded.
What about the other ATF rules implemented under the Biden administration? Oral arguments have already taken place in Garland v. VanDerStok, which is the case challenging the agency's rule on unfinished frames and receivers, but even if the Supreme Court were to uphold that regulation it could still be unwound by the Trump administration. Other challenges to the ATF's rules on forced reset triggers and who is "engaged in the business" of dealing firearms are still pending in the lower courts, and we should expect to see similar requests by the DOJ to put those proceedings on hold while Bondi conducts her review.
I'm cautiously optimistic that Bondi, despite her previous support for things like a "red flag" law and prohibiting gun sales to adults under the age of 21, will take an axe to the Biden era gun controls, but we should have a much better idea about what the Trump administration plans to do with all of the Biden-era ATF rules, as well as the DOJ's limitless defense of existing federal gun laws, about a month from now when the 30-day deadline has passed.
