A lot of people have been flooding my inbox over the past week asking me about a Department of Justice brief filed in State of Texas et al. v. Bureau of Alcohol, Tobacco, Firearms and Explosives, No. 6:23-cv-00013 (W.D. Tex.). The headlines are alarming: Trump’s DOJ is continuing to enforce the pistol brace rule, the crackdown is back, Second Amendment gun owners are in the crosshairs again. My read, after actually reading the filing, is that this is a serious overreaction — and I want to explain why before any more ammunition is wasted on the wrong target.
What the Gun-Rights Side Already Won
Let me start with the good news, because it genuinely is good news. Biden’s ATF promulgated ATF Final Rule 2021R-08F, 88 Fed. Reg. 6478 (Jan. 31, 2023), which tried to reclassify pistols equipped with stabilizing braces as short-barreled rifles under the National Firearms Act, 26 U.S.C. §§ 5801–5872. Under that rule, brace-equipped pistols would have needed to be registered and a $200 tax stamp paid — or the owner faced federal felony exposure. It was regulatory overreach of the first order: Biden’s ATF used rulemaking to expand the NFA’s short-barreled rifle definition, 26 U.S.C. § 5845(a)(3)–(4), without going back to Congress for a single vote.
The courts said no. The Fifth Circuit found the rule arbitrary and capricious, and by July 17, 2025, the DOJ dropped every remaining appeal. The rule is gone — vacated under the doctrine of vacatur, the Administrative Procedure Act remedy that voids an unlawful rule nunc pro tunc, as if it never existed. Gun Owners of America and their co-plaintiffs deserve full credit for grinding through this fight. Enormous win. Spike the ball.
What the March 16, 2026 Brief Actually Says
On March 16, 2026, ATF filed a brief under AG Pam Bondi’s DOJ arguing the case is now moot. That is the word to focus on. Moot.
Here is how mootness works. Under Article III of the Constitution, federal courts can only hear live cases or controversies. When you file suit, you have to ask for something — a remedy. In the Texas/GOA case, every cause of action in the original complaint asked for the same thing: declare the final rule unlawful under the Administrative Procedure Act, 5 U.S.C. §§ 701–706, and vacate it. The complaint ran through APA violations, arbitrary and capricious review, Second Amendment claims, and Fifth Amendment due process arguments — all of them aimed at the same target, the final rule.
That rule is now gone. The Trump DOJ’s brief is therefore making an unremarkable procedural observation: you asked for vacatur, you got vacatur, the rule is dead, there is nothing left for this court to adjudicate. Case over. The brief also includes a pedestrian statement that ATF will continue to enforce the National Firearms Act itself — the underlying statute passed by Congress — because Article II of the Constitution requires the executive branch to faithfully execute the laws of the land. The NFA is still on the books. Of course ATF reserves the right to enforce it.
That is not a crackdown announcement. That is a civics lesson.
Process Matters as Much as Substance
Here is the deeper point I want people to internalize. To be the smartest person in the room on Second Amendment rights, you cannot only understand the substantive law — you have to understand procedure. Process and substance are equally real, and missing the procedural piece causes you to misread cases like this one entirely.
The APA is one legal tool for getting into federal court to challenge agency overreach. It worked perfectly here: it killed the brace rule. But the APA is not the right vehicle for a constitutional assault on the NFA itself as a statute. That is a different fight requiring different tools — primarily a direct constitutional challenge under 42 U.S.C. § 1983 or a standalone Second Amendment claim arguing the NFA violates Bruen’s historical tradition test. Those lawsuits are already pending in courts across the country. They were always the right vehicle for taking the next step.
There is also a compelling new angle that did not exist before: the One Big Beautiful Bill Act (Pub. L. 119-21), signed July 4, 2025, eliminated the NFA tax effective January 1, 2026 — zeroing out the $200 stamp for suppressors, short-barreled rifles, and short-barreled shotguns, and zeroing out the $5 stamp for any other weapons (AOWs). Congress has always justified the NFA under its taxing power. If there is no longer a tax, the constitutional foundation for NFA enforcement against those items becomes significantly more vulnerable. That is a theory worth litigating — and it belongs in a new case built for the purpose, not grafted onto this one.
Where the Fight Actually Goes from Here
The plaintiffs in State of Texas v. ATF have options. They could move to amend the complaint and add claims under 42 U.S.C. § 1983 or a direct Second Amendment challenge to the NFA’s application to stabilizing braces. Or they could file a new, purpose-built lawsuit. Either path is viable. What I am skeptical of is treating the ATF’s mootness brief — a routine procedural filing saying “you won, the rule is gone, nothing remains to litigate” — as evidence that the Trump administration is hostile to gun rights.
As a practical matter, I have not seen a single credible report of the Trump DOJ aggressively going after gun owners for stabilizing braces. The administration’s real posture on Second Amendment enforcement is a separate question from whether it has a constitutional duty to acknowledge that the NFA is still a statute on the books. Those are not the same thing.
The bottom line is this: we won the brace fight. The rule is dead. The tools to challenge the NFA on constitutional grounds exist and are being deployed in other cases right now. A mootness brief is not a retreat.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.