On October 2, 2023, a federal district court in Texas granted a preliminary injunction against the ATF in favor of the plaintiffs in that case which injunction prohibits the ATF from enforcing the “pistol brace” rule against those plaintiffs. It is not a nationwide injunction. See, Mock v. Garland, 4:23-cv-00095, District Court, Northern District, Texas.
The District Court’s order is extensive and interestingly is a reversal of the court’s own prior ruling after the 5th Circuit Court of Appeals reversed the judge’s earlier ruling. Having “seen the light”, the district judge dropped the hammer on the ATF. In its conclusion, it states:
Accordingly, the Court ORDERS that the Government Defendants—the Attorney General of the United States; the United States Department of Justice; the Director of the Bureau of Alcohol, Tobacco, Firearms and Explosives; and the Bureau of Alcohol, Tobacco, Firearms and Explosives—and each of their respective officers, agents, servants, and employees—are hereby:
1) ENJOINED from implementing and/or enforcing against the Firearms Policy Coalition, Inc. and all of its members the provisions in 27 C.F.R. §§ 478.11 and 479.11 that the United States Court of Appeals for the Fifth Circuit has determined are unlawful;
2) ENJOINED from implementing and/or enforcing against Maxim Defense Industries, LLC and any downstream customers of Maxim Defense Industries, LLC (including all direct consumer purchasers and all intermediary distributors, dealers, retailers, and OEM purchasers of Maxim Defense products, and any of their respective customers) the provisions in 27 C.F.R. §§ 478.11 and 479.11 that the United States Court of Appeals for the Fifth Circuit has determined are unlawful;
3) ENJOINED from implementing and/or enforcing against William T. Mock and any of his family members the provisions in 27 C.F.R. §§ 478.11 and 479.11 that the United States Court of Appeals for the Fifth Circuit has determined are unlawful; and
4) ENJOINED from implementing and/or enforcing against Christopher Lewis and any of his family members the provisions in 27 C.F.R. §§ 478.11 and 479.11 that the United States Court of Appeals for the Fifth Circuit has determined are unlawful.
The injunctive relief shall not extend to any individual prohibited from possessing firearms under 18 U.S.C. § 922 (g). The injunctive relief shall take effect immediately and remain in effect pending the conclusion and final disposition of all claims and causes of action before the Court in these review proceedings. 5 U.S.C. § 705.
Mock v. Garland, 4:23-cv-00095, pp. 37-38.
At this time, we are unaware of any such ruling from any federal court that protects Tennesseans from what the Fifth Circuit Court of Appeals has found an “unlawful” federal rule. The District Court stated:
On August 1, 2023, the United States Court of Appeals for the Fifth Circuit reversed the Court’s order denying a preliminary injunction and decided in favor of Plaintiffs’ logical outgrowth APA claim, holding that (i) “it is relatively straightforward that the Final Rule was not a logical outgrowth of the Proposed Rule, and the monumental error was prejudicial,” and that (ii) “[t]he Final Rule therefore must be set aside as unlawful.” Mock v. Garland, 75 F.4th 563, 583-586 (5th Cir. 2023)
Mock v. Garland, 4:23-cv-00095, p. 8.
It is important for Tennesseans to have similar protections afforded to them from unlawful and rogue Federal agency actions such as the ATF’s “pistol brace” ruling, and others.
That question raises the more troubling question of why have Tennessee’s elected officials, officials who have taken sworn oaths of office to defend and protect our rights under the Constitution, not taken swift and aggressive action to honor that oath?
Why has Governor Bill Lee not taken action as the constitutional chief of the state’s administrative branch to defend our rights against a clearly unlawful act by a federal agency? Perhaps, it is because he is more interested in gun control, Red Flag laws and perhaps “optics”?
Why have our Legislators, and particularly our Legislative leadership like Lt. Governor Randy McNally and/or Speaker Cameron Sexton not openly demand that the state move forward to defend the rights of all Tennesseans against a clearly unlawful act by a federal agency? Why have they not enacted a law that has real protections in it to require that the State’s Attorney General and/or privately engaged counsel by the State to file actions to seek such injunctions?
Curiously, many in the State Legislature talks big about being protecting the Second Amendment but what have they done? Well, consider this law from 2021 which talks the talk but does nothing in part because it has no enforcement mechanism. Indeed, TFA was warning legislators in 2021 that the legislation (SB1335 and HB0928) was “not supported by TFA in its present format because it lacks effective enforcement provisions. Without effective enforcement provisions, it is unlikely that the legislation will actually protect the rights of Tennesseans.” Here is the law as enacted:
§ 38-3-119. Tennessee Second Amendment Sanctuary Act
Pursuant to the sovereign authority of this state, a law, treaty, executive order, rule, or regulation of the United States government that has been found by the supreme court of the United States or the Tennessee supreme court to violate Article I, § 26 of the Constitution of Tennessee or the Second Amendment to the United States Constitution is null, void, and unenforceable in this state.
While the statute contains a meaningless declaration, it omits any requirement that the State take action to challenge unlawful federal actions (ATF or DOJ rules, executive orders or even Congressional acts). Can you imagine what a federal judge or the ATF would say if an individual Tennessean or Tennessee federal firearms dealer tried to defend itself in federal court against federal felony charges by citing this feckless Tennessee statute in its pleadings?
Tennesseans should not be left without protections or options (other than hiring their own attorneys) when unlawful and unconstitutional federal actions are enacted or adopted that have the risks of exposing all Tennesseans to federal felony charges that impose the risk of potentially decades in federal prisons or the loss of firearms licenses. Does the oath of office taken by Tennessee’s elected and appointed official mean nothing? Is it merely a recitation of words but lacking any relevant imposition of an affirmative duty? Or, is it that Tennessee’s elected officials who took that oath are accepting of deference to the “god” of the federal government?
Individuals, businesses and organizations incurred the costs, expenses and risks of criminal prosecution to bring this case in Texas. We should celebrate their boldness and congratulate them on the victory. But we need to be demanding, as Tennesseans, that our own state government based on the oaths of these elected officials – officials who asked for the “honor” to serve as state officials – take the lead in filing every possible lawsuit that can be brought to defend our rights, at least in Tennessee, as defined and protected by the Second Amendment.
It is time to call, write and go see – all three – Bill Lee, the Attorney General, and each of your legislators to demand immediate action from the State of Tennessee. Indeed, if Bill Lee can call a “special session” to enact Red Flag laws and gun control, should he call a special session to honor his oath to defend and protect those rights that the Second Amendment declares “shall not be infringed” by anyone or any entity serving under the authority of the federal government? Certainly, the answer is yes – Bill Lee can call such a special session or advance this need as an “administrative agenda” item in the 2024 Legislative session. But, the facts are, based on his history as a gun control governor, that he will not. The burden thus falls on the shoulders of the Legislature and perhaps the Attorney General.
John Harris , Executive Director Tennessee Firearms Association
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