Analysis: What the Pistol-Brace Ban Repeal Defeat Means

The Senate voted against undoing President Joe Biden’s pistol-brace ban. That probably won’t have a direct practical impact on the ban’s fate, but it will have a political and, potentially, even a legal one.

On Thursday, the Senate voted 50 to 49 against a resolution to repeal the ATF’s brace rule. The vote was entirely along party lines. Not a single Democrat or Republican crossed over in either direction.

Now, it might not seem like a Senate controlled by the party of the President that instituted the policy refusing to undo it isn’t that unexpected. But there are a couple of reasons this move was surprising.

For starters, this resolution isn’t a standard piece of legislation. If it were, Senate Democrats could have kept it from getting a vote at all or added a bunch of amendments to it. But, since this was a Congressional Review Act (CRA) resolution, it was privileged and got an up or down vote instead.

CRA resolutions have been the primary way Republicans have scored political points against President Biden via legislation since they retook the House in 2022. They’ve managed to push five different resolutions through the House and garner enough Democratic support in the Senate to send them to Biden’s desk. The President has managed to kill all the resolutions by vetoing them, which would require a two-thirds vote of both houses to overcome.

Still, those previous five resolutions pitted Biden and his administration against at least a few Democrats in both houses. The same can’t be said of the pistol-brace ban resolution. While two Democrats in the House voted for it, every Democrat in the Senate rallied to the President’s side.

That may cause political pain for some members who are up for reelection in red or purple states. The rule change effectively bans millions of pistol-brace-equipped firearms, many of which were likely bought years ago, since the vast majority of affected guns have not been registered. So, getting vulnerable Democrats on record supporting it could have some electoral value.

But, as it stands now, the repeal failure is a clear political loss. Instead of making President Biden and Democrats appear divided, it does the exact opposite.

It’s also a potential setback for the legal case against the pistol-brace ban. At the very least, it’s the less ideal outcome because Congress’s opinion of the ATF’s rule is particularly relevant to the challenges.

The key questions at the center of most brace ban lawsuits are not about the Second Amendment. Instead, they’re about the ATF’s power to regulate braced guns and the public’s ability to understand the regulations they hand down. Had Congress been united in passing a resolution declaring the ATF is wrong in how it has reclassified braced guns, that it had overstepped the power granted to it by Congress, that would have provided more ammunition to the groups challenging the legality of the rule on those very grounds.

Instead, Congress is divided on that question. Plaintiffs in the case can point to that division as evidence the ATF doesn’t have clear authority to enact its rule, but the argument is weaker than it otherwise would have been.

Still, that doesn’t mean the pistol-brace ban is going to survive. The cases against it were going well before the repeal resolution passed the House, and the repeal effort losing a 50-49 vote in the Senate is unlikely to sink its legal prospects.

Four federal courts have already issued injections blocking the ATF from enforcing the rule against millions of Americans. A Fifth Circuit Court of Appeals panel got the ball rolling just before the ATF’s grace period for registering the affected guns ended at the beginning of the month by protecting Firearms Policy Coalition members from arrest and prosecution as it prepared to hear the case on the merits. A second court in the same circuit followed up by blocking enforcement against Second Amendment Foundation members. A third extended an injunction to all Gun Owners of America members. The National Rifle Association, which has a separate case in the Eighth Circuit, has asked for a Fifth Circuit judge to extend protections to its members.

The number of people protected under those injections has already grown since they were handed down. The affected gun-rights groups have seen their membership numbers rise, with the Second Amendment Foundation claiming 20,000 new members in the first week after it got its injunction.

A ruling on the merits of the case will probably still come soon. To issue a preliminary injunction against the rule, the Fifth Circuit panel had to conclude that the ban was likely unconstitutional. The Senate’s repeal rejection probably won’t force them to reconsider that conclusion as they begin to hear oral arguments on June 29th. And, as much as it doesn’t help things, the safe money is still on the panel striking the rule down.

Legal action still is, and always was, the most viable path for gun-rights advocates to bring down the brace ban. But the failure to get the repeal resolution through the Senate, even if it would have been doomed by a veto anyway, represents a notable setback nonetheless.