October 4, 2023
Another Federal Court grants injunction on ATF “pistol brace” ban, but what about Tennessee?
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.
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