Gun Owners of America’s (GOA) preliminary injunction against the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) rule on pistol stabilizing devices (Final Rule 2021R-08F) has been extended until the conclusion of the case.
The case, State of Texas v. ATF, was bought by GOA, Gun Owners Foundation (GOF), and the state of Texas to challenge the ATF rule that reversed years of determinations surrounding pistols equipped with stabilizing devices. The ATF’s new rule reclassified most pistols with stabilizing braces to short-barreled rifles (SBRs), meaning the firearms would be regulated under the National Firearms Act of 1934 (NFA). It required owners of these guns to register the firearms with the ATF, submit to additional background checks, hand over passport pictures, and provide fingerprints.
The rule set off a flurry of lawsuits asking for a nationwide injunction before the June 1, 2023, effective date. Second Amendment Foundation (SAF) would get an injunction in a Texas District Court. Firearms Policy Coalition (FPC) would get their injunction from the Fifth Circuit Court of Appeals. GOA’s injunction would also come from a Texas District Court—none of the injunctions applied to all gun owners. Only the members of the organizations were covered. The injunctions were issued before the cut-off date.
The injunctions would be used as stop gaps until later to give the courts time to rule on the cases. Judge Drew B. Tipton has now decided to extend the preliminary injunction until the case is settled.
A preliminary injunction is an “extraordinary remedy” to maintain the status quo. Several factors have to be considered for an injunction to be issued.
The first and most important factor is the likelihood of the plaintiffs to succeed on the merits of the case. Judge Tipton cited the ruling in Mock v. Garland, where the Fifth Circuit Court of Appeals found that the ATF violated the Administrative Procedures Act (APA) by pulling a bait and switch with the Proposed Rule and the Final Rule.
The ATF presented a rule with a form (ATF Form 4999) with a point system to determine if a brace would turn a pistol into an SBR. When the Final Rule was unveiled, the point system was gone. All braces currently on the market would turn any pistol into an SBR if equipped. The rule bore no resemblance to the Proposed Rule.
“The first inquiry is whether a Plaintiff that has standing has established a substantial likelihood of prevailing on the merits. Id. The Fifth Circuit has already decided “that the Final Rule fails the logical-outgrowth test and violates the APA.” Mock, 75 F.4th at 578. Because that holding pertained to the ATF’s rulemaking process, any plaintiff challenging the Final Rule on APA grounds in the Fifth Circuit has the same likelihood of success. Therefore, Plaintiffs have a substantial likelihood to succeed on the merits of their logical-outgrowth claim,” Judge Tipton wrote in his 29-page decision.
The judge also believes the plaintiffs will suffer irreparable harm if the Court doesn’t issue an injunction. Judge Tipton pointed out that the plaintiffs would be forced to comply with ATF’s rule if no injunction is issued, meaning they would have to get rid of or modify their firearms.
“The ATF gave affected gun owners until May 31, 2023, to register their stabilizing braces. 88 Fed. Reg. at 6570. Because that deadline has now passed, complying with the Final Rule would require the private Plaintiffs to do one of four things: (1) permanently modify their weapon to remove it from the scope of the NFA, (2) dispose of or ‘alter’ their stabilizing brace so that it can never be reattached, (3) turn over their weapon to the ATF, or (4) destroy their weapon completely,” the order reads.
The final factor in a preliminary injunction is the balance of equities and public interest. In this stage, the judge explores the harm to the plaintiff if an injunction is not issued. The judge also looks to the harm caused to the defendant if an injunction is issued. The judge will then look at the public interest.
The judge ruled that the plaintiff would experience harm immediately without an injunction. He said the ATF’s harm is more administrative and speculative. Judge Tipton also ruled that “there is no public interest in the perpetuation of unlawful agency action.”
“The Court finds that the balance of equities tips in Plaintiffs favor because the Final Rule’s effect on Plaintiffs is immediate and imminent while the effect on Defendants, especially the ATF, is more administrative and speculative. Defendants’ arguments of harm to the public are unavailing,” the judge wrote.
The judge kept the scope of the ruling just to GOA members. This decision means that all GOA members will be protected from ATF enforcement actions over braced pistols for the foreseeable future. Even though there is no all-encompassing order enjoining the ATF from taking enforcement action against anyone who owns a pistol equipped with a stabilizing brace, the scale of the current injunctions means millions of Americans are protected from ATF action. Since none of the groups are required to share their membership rolls with the ATF, many believe the rule is currently unenforceable.
The ATF Final Rule on the classification of pistols equipped with stabilizing braces is not dead yet, but it is on life support.
In early 1951 a plan was put into motion whereby the Air Force might qualify for the 1952 Olympic Games held in Finland. In addition to the smallbore rifle team, the fiercest Air Force pistol competitors were Alan Luke, John Kelly, LTC Charles Densford and Col. Thomas Kelly. At the time, Col. Kelly was not aware of the place in Air Force history that awaited him.The tipping point
Following an attack during the Korean War, General Curtis LeMay went to Kimpo Air Base to take stock of the situation. Learning that fallen U.S. Airmen had perished with M2 Carbines in their hands after their apparent futile attempts to load them with .45 cal. service pistol magazines, the general vowed “never again.” After becoming Chief of Staff of the Air Force, he was able to make good on that promise. The general reached out to Col. Kelly to organize the first Air Force Marksmanship School at Lackland Air Force Base, San Antonio, TX. Col. Kelly’s assignment was to 1) Train and organize competent gunsmiths; 2) Establish a marksmanship school; and 3) Organize and field the best competitive shooters in the world. In typical military fashion, the colonel complied.
Many of the early gunsmithing “recruits” were aircraft engine mechanics, fighter pilots or other maintenance personnel who just liked to target shoot or hunt. From that early nucleus came the Air Force’s Gunsmithing “Shop” with pistol, smallbore and high power rifle, shotgun and subsequently running boar (now moving target) sections. An ammunition section was also formed to find the best loads, using their own 100-yard test tunnel. The shop would test a few rounds of ammunition from every manufacturer and, once they found the best, they would buy the entire lot. We knew when we were issued ammunition that we were getting the best available.
With the gunsmithing program underway, efforts turned to establishing a marksmanship school. The first contingent of Air Force shooters arrived at Ft. Benning, GA, to attend the U.S. Army’s advanced coach class in 1958. [Editor’s note: For reference, the Army formed its marksmanship unit in 1956, the Navy in 1957.] The Air Force marksmanship school “went live” later that year and present-day Air Force “Red Hat” rifle range instructors are the direct result of that original program.
With gunsmiths and a marksmanship school in place, Col. Kelly turned his attention to his final set of orders—making the best shooters in the world. Air Force shooters from 1959 until the program was discontinued in 1969 performed extremely well. I will only cover the accomplishments of the pistol team of which I was a part of and knew from firsthand experience.
The majority of the early team members came from within the Air Force but there were some who came from the other Services. The first was Bill Mellon who came over from the Navy, then me, Arnold Vitarbo, from the U.S. Marine Corps. I was a member of the Marine Corps Pistol Team from 1961 through most of 1963, and was an established “2650 Bullseye” shooter for the Corps. In those days, whenever we encountered the Air Force Team at matches we were very impressed by their skill and professionalism, so much so that I wanted to become a part of it. During November of 1963, I completed my 10th year in the Marine Corps and decided to join the Air Force. After my discharge from the Marine Corps, I was turned down by an Air Force recruiter on a normal enlistment and actually was headed to Hawaii where we planned to live.
Col. George Van Deusen, Commander of the Air Force Marksmanship School, helped get me assigned directly to the team at Lackland AFB. It should be noted that Col. Van Deusen, a former fighter pilot with the “Flying Tigers,” often traveled with us and usually shot well over 2600 himself. When I arrived at Lackland I found that of the 15 shooters assigned to the Pistol Team, seven of them were current 2650 shooters, including the team captain and coach. (Note that all of these scores were fired with open sights, no scopes.) During my first half-year on the Air Force team in 1964, I fired in over 20 matches and had a 2646 match average, but was not able to make the Blue Team until later that year. My first match as a firing member of the Blue Team made me realize just how tough these guys were. From here on, I would like to list some of the highlights of our team’s accomplishments and put them in perspective.
-SSGT John Mahan broke 2650 12 times and never won a match with it. He was the only shooter I ever met who actually had his sights adjusted for a controlled “jerk.” Anyone else who shot his guns always shot high and to the right.
-In 1966, Capt. T.D. Smith III shot his .45 cal. wad cutter in centerfire matches and his “hardball” gun in the .45 stages for the entire year, with the goal of winning the National Trophy at Camp Perry. After 20 matches and an average close to 2650, he was, instead, sent to Vietnam.
-Capt. Franklin C. Green held the bullseye record for a while with a score of 2665. He injured his left hand so he switched and broke 2660 with his right hand. He became National Champion in 1968.
-TSGT Alvin R. Merx was the first man to shoot 300 over the .22 National Match course. (He subsequently equaled that score several more times.) Merx complained all the time because he hated shooting and said it was boring. He used to assemble distributor caps at a Ford Motor plant in Detroit and said that is what he enjoyed doing.
-Myself, Capt. T.D. Smith III, Capt. Frank Green, SSGT John Mahan and a few others also shot 300 in competition in the National Match course on different occasions. The first time I shot over 2660 (2664) I walked off the line thinking I had the match won, but soon found out that I came in second to T.D., who shot a 2666. In 1968 at Camp Perry, the Air Force made a clean sweep of the Nationals. We won the warm up match, all three guns and Frank Green won the Grand Aggregate. SSGT Edwin L. Teague won the National Trophy Individual Match and we also won all three Team Matches. In the American Rifleman magazine, the reporter said that the Air Force won everything except Lake Erie.
One team only
In those days, there were no separate Conventional and International teams. Those of us who could do both, shot in all of the major matches of each. Our Blue Team in Conventional was usually made up of the International shooters that included:
- Capt. Franklin C. Green, 1964 Olympic Silver Medalist in Free Pistol, 1968 National Pistol Champion, 2650 Club and President’s 100.
- Capt. Thomas D. Smith III, 1964 Olympic Team for Free Pistol, World Champion Center Fire and the retired record holder with a score of 599, 1963-64 Interservice Pistol Champion with a score of 2658-140X, (T. D. shot over 890 with the .22 so many times that it became common place for him), 2650 Club, President’s 100.
- SSGT Arnold Vitarbo (author), 1968 Olympic Team in Free Pistol, 1966 World Championships Free Pistol fourth place finish, 1967 Pan American Games Free Pistol fifth place finish, Team Gold Medal and Individual Gold, 1985 and 1968-1970 World Championship Team Member with a 568-match average in Free Pistol, 1969-1985 Free Pistol Record holder with a 571, 1969-1981 Standard Pistol Record of 586, 1985 Air Pistol Record of 584, 1973 National Free Pistol Champion, 1966 National Center Fire Championship, Distinguished in Rifle, Pistol and International, averaged 288 in individual and Team Matches with the Service Pistol for six seasons, 2650 Club, and President’s 100 seven times.
- SSGT Edwin L. Teague, 1964 Olympic Team in Rapid Fire and 1968 National Trophy Pistol Champion. Ed was a tremendous Police Combat Action shooter and had unbelievably quick reflexes. He later became the head of the SWAT program for the Arizona State Police. He was also part of the 2650 Club and President’s 100.
- LT. Gail Liberty shot as high as 2625 in the Conventional Pistol matches and was a member of the 1966 World Championship Team. After she retired from the Air Force, she made the National Team in Women’s Sport Pistol and Women’s Air Pistol.
Something to pass along
We had a large team score board set up at each match and were required to post our scores. The team would always gather around the score board after the match for open discussion. Although there was much camaraderie among the team members, when the match began, it was “dog-eat-dog.” I feel this attitude was very healthy and that it contributed to our overall success. If you were “thin skinned” you would not have lasted very long on the team.
During team discussions, the subject of how to handle match pressure would always come up. In their own way, each shooter would finally admit they used some form of mental training, including imagery. The mental preparation normally began weeks before a major competition. The closer the “big” match came, the more we would get into our “shell.” These thoughts would include hearing ourselves being called to the firing line, getting our guns ready, etc. The night before a big match, we would try to imagine in more detail actually firing the match, hearing the range commands, the noise and also preparing for any problems that might arise like weather, target breakdowns, etc. When the command was finally given to commence firing, before each shot or string of shots was fired, we would rehearse the entire shot or string in our mind. This mental imagery included breathing, rise of the gun, watching the sights, feeling the trigger pressure and follow through. Immediately after this exercise, we would raise the gun and fire a well-planned shot or be ready for the commands for the sustained fire stages.
I still teach the following techniques to my students in my Coaching and Advanced Marksmanship Clinics. We would try to imagine seeing our sights clearly with our eyes closed. This is normally an acquired skill and takes time to master. It also helps to dry fire in a dark room or closet to get the feel of the trigger and how a smooth break should feel.
It is my opinion that the reason for the overall skill level that was present during the 1960s was in large part due to the Air Force and its program. We were expected to act like professionals and were treated as such. The performances of the Air Force Team had a snowball effect: As the Air Force improved, the U.S. Army Marksmanship Unit at Ft. Benning improved along with the Navy shooters who, in turn, began to be a force to be reckoned with. The Air Force had to improve to beat the Army and Navy, and they in turn did likewise. The overall result was extremely high scores with a very high expectation level. There are record scores that were fired in the 1960s and early 1970s that are still standing.
There are other members too numerous to include in this article and I apologize for not mentioning anyone before 1962, but I was not on the team at that time.
It seems like we older gun’riters are forever fawning over the legendary Smith & Wesson “Triple Lock” which incidentally is called Hand Ejector, 1st Model by collectors. Perhaps it is because besides being the very first of S&W’s N-Frames sixguns, the Triple Lock was also the introductory vehicle for the .44 Smith & Wesson Special.
Then there is the Hand Ejector, 3rd Model also nicknamed Model 1926. Later the Hand Ejector 4th Model was introduced. It was divided into two variations with the names of 1950 Military for the fixed sight version and 1950 Target for ones with adjustable sights.
But what about the Hand Ejector, 2nd Model? It is seldom mentioned, never got a name and was just as good a revolver as the above mentioned ones and actually far more historical.
This particular handgun was introduced 100 years ago during World War I. The Brits got themselves enmeshed in Europe’s continental war, and as usual, were short of weapons. They contracted with S&W to alter the Hand Ejector, 1st Model to accommodate their rather puny .455 Webley ammunition, but wanted changes. They said that battlefield mud and debris would foul its special 3rd lock and the ejector rod’s protective shroud.
Perhaps more importantly S&W felt the Hand Ejector, 1st models were too expensive at $21. By removing the ejector rod’s shroud and the intricately machined 3rd lock on the crane they could reduce retail price to $19.
And so was born the Hand Ejector, 2nd Model. For the American market the primary caliber offered was .44 Special. Also some were made as .38-40, .44-40 and .45 Colt but they numbered only in the hundreds each. According to Roy Jinks’ History of Smith & Wesson, by September 1916 the company had produced 74,755 N-Frame revolvers in .455 caliber for the British. Of those, 69,755 were Hand Ejector, 2nd Models. The other 5,000 were Hand Ejector, 1st Models because the British didn’t want to wait for the changes being made to the 2nd model.
All of those had 6-1/2-inch barrels, full blue finish except for the color case hardened trigger and hammer and a lanyard ring on the butt. Grips were checkered walnut and sights were S&W’s trademark “half-moon” front with groove in the frame’s topstrap for a rear. I have a sample in my collection that factory letters to the Canadian Government in 1916.
Even so, the military duty of Hand Ejector, 2nd Models was just beginning. Being almost as bad as the British for declaring war while lacking weapons, the United States entered WWI in April 1917. The US Army was desperate for handguns, so S&W was contracted to provide N-Frame revolvers altered to function with rimless .45 ACP cartridges—this was done by snapping the cases into little 3-round spring-steel clips. The Hand Ejector, 2nd Models were given the military designation of Model 1917. All were fitted with 5-1/2-inch barrels, lanyard rings and smooth walnut grips. Finish and sights were the same as for the Brit’s contract revolvers.
Production of Model 1917’s was enormous. Jinks’ book says 163,476 were made for the US Government in their own serial number range. Those are marked “United States Property” under their barrels as mine is. After WWI ended the company kept this model in their catalog until 1949 and produced about another 50,000. This order included 25,000 sold to the Brazilian Government in the late 1930’s, with many of those returning to the United States for the surplus market in the 1980’s. The commercially made Model 1917’s had checkered walnut grips instead of the military’s plain ones.
And that brings us back to the Hand Ejector, 2nd Model .44 Special. In nobody’s world could it be called a big selling item. It was dropped from the S&W catalog in 1940, and again referring to Jinks’ authoritative book, only 17,510 were sold in 25 years.
Barrel lengths offered were 4, 5 and 6-1/2 inches with full blue or full nickel for finish. Some were fitted with target sights but the vast majority had sights as described for the .455 variation. Grips were checkered walnut and lanyard rings were not standard. As interested as I have always been in N-Frame S&W handguns, I have never seen a Hand Ejector, 2nd Model in any barrel length but 6-1/2 inches, any finish but blue, any type of sights but fixed or any .38-40, .44-40, or .45 Colt chambering. (Original chambering that is. Many .455’s were rechambered to .45 Colt in bygone years.)
Nigh on 20 years ago I wandered into a nifty little gun store on a trip to Los Angeles. To my utter amazement, in the handgun case was a Hand Ejector, 2nd Model .44 Special, blue finish with 6-1/2-inch barrel. I paid for it and made arrangements for it to be (legally) shipped back to Montana. It took me years to get around to factory lettering it but upon doing so I learned it had been sent to Charleston, W. Va., in 1929. Having been born and raised in that state, the provenance of this revolver dictates I keep it forever.
Besides, it shoots pretty good!