Pistol arm stabilizing brace
(Travis Pike For TTAG)
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Yesterday the three-judge panel of the Fifth Circuit Court of Appeals ruled that the ATF is likely to lose when the lawsuits challenging their pistol brace ban are fully heard and left the injunctions blocking enforcement in place. ATF zigged and zagged on the use braces for years. A number of injunctions have been issued by lower courts, in effect agreeing that the plaintiffs are likely to prevail on the merits.

Here’s a choice snippet from the Fifth Circuit Court of Appeals ruling yesterday in Mock v. Garland, the suit challenging the ATF’s pistol brace ban:

Under the Final Rule, it is nigh impossible for a regular citizen to determine what constitutes a braced pistol, and outside of the sixty contemporaneous adjudications that the ATF released, whether a specified braced pistol requires NFA registration. Various AR pistols without a recognizable “brace” may fall into the strictures of the Final Rule. Such an owner may not be on notice that his firearm is subject to criminal penalties without registration.

Nor does the ATF bother to clarify the matter. The agency maintains that its six-factor test objectively assesses “design features common to rifles.” … But it simultaneously declares that the objective criteria given to assess certain factors “are not themselves determinative,” and that adjudications are made “on a case-by-case basis.”

Predictably then, the six-part test provides no meaningful clarity about what constitutes an impermissible stabilizing brace. The ATF did not provide explanations with its contemporaneous adjudications that certain weapons and platforms with stabilizing braces were SBRs under the Final Rule, nor did the ATF provide a single example of a stabilizing brace with a handgun that would be permitted under the Final Rule. Nor is the Final Rule even logically coextensive with the examples provided in the Proposed Rule. 

That was, of course, intentional on the part of the ATF. Examples lead to clarity and clarity means the agency doesn’t have wide latitude it likes to wield in when, how, and against whom they enforce their regulations. Here’s a press release FPC issued last night . . .

Today, Firearms Policy Coalition (FPC) and FPC Action Foundation (FPCAF) announced that the Fifth Circuit Court of Appeals has ruled in Mock v. Garland, finding that FPC and FPCAF are likely to win on the merits of their lawsuit challenging ATF’s pistol brace rule. The Fifth Circuit also remanded the lawsuit back to the district court with instructions to reconsider the other preliminary injunction factors within 60 days. The opinion can be viewed at FPCLegal.org.

“The ATF incorrectly maintains that the Final Rule is merely interpretive, not legislative, and thus not subject to the logical-outgrowth test,” writes Judge Smith in the Court’s opinion. “The Final Rule affects individual rights, speaks with the force of law, and significantly implicates private interests. Thus, it is legislative in character. Then, because the Final Rule bears almost no resemblance in manner or kind to the Proposed Rule, the Final Rule fails the logical-outgrowth test and violates the APA.”

The Court goes on to state: “To ensure relative stability, we MAINTAIN the preliminary injunction pending appeal that the motions panel issued on May 23, 2023, as clarified by this merits panel on May 26, 2023. This court’s injunction will expire 60 days from the date of this decision, or once the district court rules on a preliminary injunction, whichever occurs first. We direct the district court to rule within 60 days.”

“Said in its simplest terms, the Fifth Circuit just indicated that the Plaintiffs–Firearms Policy Coalition, Maxim Defense, and FPC’s individual members–are likely to defeat ATF’s pistol brace rule when the merits of this case are finally heard,” said Cody J. Wisniewski, FPCAF’s General Counsel and FPC’s counsel in this case. “This is a huge win for peaceable gun owners across the nation, a huge win for FPC’s members, and yet another massive defeat for ATF and this administration’s gun control agenda.”

Individuals who would like to Join the FPC Grassroots Army and support important pro-rights lawsuits and programs can sign up at JoinFPC.org. Individuals and organizations wanting to support charitable efforts in support of the restoration of Second Amendment and other natural rights can also make a tax-deductible donation to the FPC Action Foundation. For more on FPC’s lawsuits and other pro-Second Amendment initiatives, visit FPCLegal.org and follow FPC on InstagramTwitterFacebookYouTube.

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    • Once Jim Crow Gun Control self serving democRat joe stopped the Keystone XL Pipeline construction and trashed thousands of jobs the writing was officially on the wall. It has been downhill since and it will continue downhill until biden is gone and POTUS DJT is at the helm.

      Anyone who joined hands with democRats to slander and libel POTUS DJT owns the Attacks on the Second Amendment and the biden crime syndicate lock, stock and barrel.

      • ATF under Biden is so sneaky that they posted the first rule against pistol braces retroactively while Trump was still president.

        • And to shed light on the bump stock witch hunt…At the time had POTUS DJT not thrown bump stocks under the bus and a knee jerk Congress took charge it could have been adios to a lot more than bump stocks. The bump stock ban has been tossed in court and an EO can be undone with a lot less trouble than the brace shenanigans led by joe biden. It all circles back to those who read the only the Headlines and joined hands with democRats to slander POTUS DJT. And by doing so they own the biden crime syndicate lock, stock and barrel.

        • Debbie, I agree with your assessment of what likely would/could have happened. However, I don’t think that makes what Trump did ok, nor do I think it was in anyway planned to be to our benefit.

        • oh yeah? how many dimensions do you play chess in?
          trunk blaming has it’s roots in racism and bigotry.

  1. So the however many thousand people that got their “free” stamps that are valid only as long as the rule remains may soon have to remove their stocks and put braces back on?

    If it helps raise mass ire toward the feebs it’s a good thing.

    • That will be a VERY interesting situation! What will the AFT’s do about those free stamps? Not gonna lie, part of me wants the simps that complied to get screwed.

      • Why would those who comply get screwed if ATF cannot enforce this rule?

        The stamp was tax free.

        So if the rule disappears, all you have is a blue stamp that cost you nothing

        • No stamp, just the approved registration form. 1 of 2 came in via e-mail just today.

        • You don’t get a stamp with the amnesty applications. You just get back a Form 1 (no stamp or even image of a stamp), with a “provisional” approval- that provision being that is was issued pursuant to the pistol brace Final Rule.

          If the Final Rule gets tossed out, they could very well rescind the SBR approval.

          In fact, right when they were launching the special eForms site for this pistol brace thing, they also added a “Revoked” section to the user portal.

          …and, they specifically didn’t require that these guns be engraved- I suspect because they didn’t want the bill for all the engraving that they forced people to have done once their rule was struck down.

          The ATF knew there was a high likelihood that this would get tossed, and they set it up perfectly to be able to revoke all the SBR approvals when it was.

        • If the rule is thrown out, then the SBR approval is revoked, but also the firearm is back to being a braced pistol so long as the owner hasn’t replaced the brace with a stock.

        • Snake Eyes,

          “. . . the firearm is back to being a braced pistol . . .”

          Which is now catalogued and registered with BATFE. I’ll pass, thanks.

  2. Serious legal strategy question:

    Instead of litigating whether or not the ATF’s pistol brace rule/s are enforceable under the National Firearms Act of 1934 (which defined such arbitrary concepts as “short barreled rifles and shotguns” as well as requiring a tax and licensing), why don’t we simply litigate the Constitutionality of the National Firearms Act of 1934 ITSELF which licenses and taxes a Constitutionally codified right (a huge no-no in concretely established case law) along with clearly violating the Second Amendment (the last of which fails the Bruen standard of judicial review in spectacular fashion)?

    • This is about who’s in control – the government or the people. The government is asserting that it is in control of everything – including your light bulbs. It will not give up easily.

    • “…why don’t we simply litigate the Constitutionality of the National Firearms Act of 1934 ITSELF which licenses and taxes a Constitutionally codified right (a huge no-no in concretely established case law) along with clearly violating the Second Amendment (the last of which fails the Bruen standard of judicial review in spectacular fashion)?”

      Not gonna be happening, for one good reason :

      The watershed ‘Heller’ decision recognized that there were “particularly dangerous weapons” like select-fire firearms, that could be banned. Being able to register them is a step better than an outright ban, like they want. THAT is an obtainable goal.

      SBRs and suppressors are *not* dangerous weapons, proof of that are the nations where short-barreled rifles are perfectly legal with no paperwork, and the same for suppressors. They have no leg to stand on for that.

      Those two we can, and need to kill.

      Like it or not, select-fire is a completely different critter. And do you seriously want another deranged Leftist Scum ™ filled their natural hate, to just walk out of a store with a tool that can cause that kind of damage?

      There was nothing (much) wrong with the way things were before the 1986 ‘Hughes’ amendment. Very few, if any registered select-fire weapons were ever used in crime. Let’s shoot for the obtainable goals like killing the SBR and suppressor bullshit *first*. Deal with reality, for cripe’s sake… 🙁

      And, speaking of the topic at hand, is that 5th circuit decision nation-wide?

        • The ’86 ‘Hughes’ crapola killed the affordable select-fire pipeline, not the ’68 GCA.

          Bird in hand, vs. 2 in the bush, etc…

        • For the more free states going after Federal level stuff it may be like peeling an onion layer by layer. For those of us in Democratic Peoples Republics of the former United States………… well we will see what happens in the coming months/years in what falls under “states rights” vs incorporated ones.

        • RE: oldshtforbrains…”The ’86 ‘Hughes’ crapola killed the affordable select-fire pipeline, not the ’68 GCA.”

          That’s 1968 Gun Control Act…Abbreviating it is along the lines of helping a Gun Control zealot spray deorderant on an agenda History Confirms is Rooted in Racism and Genocide.

          Heller or no Heller Gun Control has a diabolical historical track record long before and long after the Second Amendment. Therefore Gun Control like its sidekick Slavery can be Abolished.

          The History of Gun Control Confirms it is only right for the public to view Gun Control as something no different than a noose, slavery, lynching, Jim Crow, etc. And you come along and reduce Gun Control to an abbreviation…pathetic.

          The aforementioned is not happening with you and your Gun Control History illiterate pals who think Racism and Genocide are just words or perhaps abbreviations…Is it?

        • I KNOW what the ’68 GCA is, you brain-damaged ignorant hick.

          Hick, that is what you are, a mouth-breathing, knuckle-dragging cousin-fornicating waste of viable protoplasm.

          Sit the fvck down, and shut the fvck up, and learn your place, you over-weight ugly broad… 🙂

        • oldshtgeoff…There you go again with your demented wishful thinking…Last time you were savoring the thought of men from days gone by being able to beat women and children without fear of repercussions. Before someone hurts you really bad…Get Help. Mental Help you pervert.

        • @Geoff,

          I was referring to your first line in your comment, in which you said “why don’t we simply litigate the Constitutionality of the National Firearms Act of 1934”. I think the entire 1968 GCA needs to be repealed.

          (steps out of room to avoid the poop slinging between Geoff and Debbie)

      • Geoff:

        CAVEAT: THE FOLLOWING IS NOT LEGAL ADVICE. While I’m an attorney, I’m not *your* attorney, and you should consult your own counsel before acting on it.

        The injunction only applies to the named plaintiffs, **including the members** of the associational plaintiff (FPC). Ergo, FPC members are covered, regardless where they are located.

        The decision is binding precedent in the Fifth Circuit, which means that unless SCOTUS intervenes (not likely), the preliminary injunctions entered in the other braced pistol cases (NDTX and SDTX) will almost certainly also stick, and those should also cover the members of the associational plaintiffs in those cases as well.

        • Thanks, I am a member of the FPC, but my braces stay off any firearms I own until things look more stable…

        • LKB…Let’s get something straight, again. If I could mistically, magically make Gun Control disappear I would turn you into a Toad.

        • Talk about biting the hand that feeds.

          That’s a known trait of inbred hicks like deb-the-dunce.

          Unlike you, deb-the-dunce, LKB knows what he’s talking about, and provides a very valuable service for TTAG…

        • LKB…All you darkies with membership cards get to eat watermelons. All you darkies without membership cards start picking cotton. Call it Discrimination, counselor. Or better yet, call it Gun Control.

        • It’s called standing, and it’s the extremely basic legal principle that courts can only grant relief to the parties that are actually before the court.

          But once again, your knowledge of the law is less than your capacity for rhetoric.

        • oldshtgeoff…I would not have to magically turn you into a pile of poop because you already are…Wipe the crybaby snot off your face and debunk line by line what I say otherwise gfy…In your case gfy is a legitimate abbreviation.

        • LKB…You provide standing for such Discrimination when you fail to man up and push standing aside and open you mouth and make note of the blatant
          Discrimination that leaves thousands of people, “Standing” in the Rain.” Grow a pair, no court will hold you in contempt.

        • Debbie:

          Your knowledge of what courts will do is even less than your knowledge of the law, which appears so faulty as to actually be below zero.

          If you want to go into a federal court and argue that the court must grant relief to parties that are not before the court, knock yourself out. Better yet, why don’t you sign and file an instrument that is subject to Federal Rule of Civil Procedure 11 that makes that frivolous legal argument. Hint: Rule 11 allows judges to financially sanction people who file papers making frivolous legal arguments.

        • What about the folks that aren’t FPC members but their brace is made by Maxim? Isn’t Maxim a plaintiff also?

        • LKB,

          “. . . your capacity for rhetoric . . . ”

          Debbie the Dim has a capacity for rhetoric???? All I’ve ever seen her employ is a boringly repetitive mantra, and a WEAK SAUCE talent for invective. I’ve been insulted worse by street panhandlers.

      • We need to get Hughes repealed too, at least. At this point transferable guns are vintage collector items, the only real work around is trying to be an FFL and SOT and get post samples or demos, but there have been crack downs on those as well, or be a manufacturer. If someone just wants a machine gun for shooting, there isn’t an easy route.

        Unless you are in a gang in Chicago with some Glock switches…

        • I do not see how the Hughes Amendment survives a Bruen challenge if brought in the usual test case venues (ideally, NDTX, with the appeal to the Fifth Circuit).

          But a lot of judges are likely to say, “you may be right, but *I’m* not going to be the one to reopen the registry.”

        • “But a lot of judges are likely to say, “you may be right, but *I’m* not going to be the one to reopen the registry.””

          Let’s load the lawsuit pipeline and see what happens.

          I’ll seriously considering moving to a district like the 5th that may rule in our favor… 🙂

        • “But a lot of judges are likely to say, ‘you may be right, but *I’m* not going to be the one to reopen the registry.'”

          That’s a NIMBY attitude on their part, but I wouldn’t be quick to fault them for it. Judges are people too, with families and lives. If I were a judge, and this were dropped in my lap, I’d like to say it would be slam-dunk easy, but there would likely at least be some sleepless nights. These are big deals, and of course, they have to be, or the left wins.

      • Geoff, the ruling is only effective in the 5th circuit which is: Louisiana, Mississippi, Texas and the Canal Zone.

        • No. The injunction bars enforcing the regs against members of the associational plaintiff (PFC), regardless of where they are located.

      • Geoff PR,

        You bring up very interesting ideas in response to my question.

        Here is another question which is hugely germane to the question of whether or not Heller’s wink to “dangerous” weapons actually applies to select-fire platforms–especially under the umbrella of the National Firearms Act of 1934 and the Hughes Amendment which closed the select-fire registry. Bear with me:

        Even if Heller’s “dangerous” weapons consideration is somehow Constitutional, are registered select-fire weapons actually dangerous? I believe it is blatantly obvious that registered select-fire weapons are most certainly NOT dangerous–all you have to do is see how many times registered owners used their registered select-fire firearms to attack/injure innocent victims. Last I heard, there was only one or two instances out of hundreds of thousands of select-fire firearms since 1934. Let that sink in:
        we are coming up on almost 100 years and hundreds of thousands of firearms and registered owners–and only one or two instances of misuse. That does not equal “dangerous”, any more so than one or two people unintentionally setting something on fire with natural gas over the last 90 years means that natural gas is “dangerous”.

        I have to wonder if an extremely effective legal strategy would be to submit this evidence and negate the implicit justification of the Hughes Amendment (thus re-opening the registry). And that may also open the door to eliminate the registration requirements of the National Firearms Act of 1934 since we now require background checks for firearm purchases at FFLs.

        I don’t know if I explained that very well. What I am getting at is that everyone assumes that select-fire firearms are “dangerous” and that somehow justifies infringement. I am recommending that we challenge that assumption. And that may open the door to chucking the Hughes Amendment or possibly even the NFA 1934 as applied at the very least if not outright.

        • not enough votes there…and the repubs would never get onboard with it…but that taxing requirement within the NFA may come under scrutiny…

        • “I believe it is blatantly obvious that registered select-fire weapons are most certainly NOT dangerous…”

          The flood of Glock ‘switches’ in the inner-city kinda shoots that down.

          YES, registered ones are rarely used, that bodes well for us in killing ‘Hughes’, but the flood of the inner-city ones makes that argument harder… 🙁

    • The 1934 NFA was a Roosevelt designed solution to thousands of liquor ‘revenoors’ being laid off as a result of the repeal of prohibition. Had to give all those Federal employees a way to keep their jobs. It provides a way to tax a fundamental right. If you can tax ownership of a gun, why not tax voting? Religious worship? Freedom of Speech?

      • We can likely likely kill the tax, but not the registration on select fire…

      • Bud Harton,

        I share your sentiments. Note that many members of all branches of government and obviously the Civilian Disarmament Industrial Complex will argue that “arms” as mentioned in the Second Amendment does not include select-fire firearms. Therefore they will further claim that government can impose any limitations or taxes on select-fire firearms as government sees fit.

        Of course the above entities will deny that the U.S. Constitution implicitly (and bordering on explicitly) makes it clear that The People can own items of warfare–well beyond any notion of “bearable arms”–without requiring prior government approval. That is apparent in the U.S. Constitution’s verbiage about, “letters of marque and reprisal.” Note that said verbiage authorizes private citizens to use their warships which necessarily have cannons to attack enemies of the United States. And since there is no verbiage about licensing nor taxing private warships, government has no authority to do so. Thus, if the U.S. Constitution acknowledges and therefore allows for private warships without licensing nor taxes, it must also allow for all manner of private firearms–including select-fire firearms–without licensing nor taxes.

        Of course, while my above statements may be iron-clad truth, that doesn’t mean the courts will issue just verdicts according to that iron-clad truth. Proceed with caution.

        Disclaimer: I am not an attorney. The above is my opinion and is NOT legal advice.

        • One of the justices last year admitted that MANPAD’s would likely fall under “THE BEARING ARMS” under the 2nd Amendment..

          Since it can be carried by an individual!!!

    • No one is challenging the NFA in part, or as a whole, because they either don’t have the balls to do so or want to keep it in place.

      All of these pro-gun groups that talk about protecting our gun rights and asking for money won’t go after the NFA because they think they would be out of a job grifting money from people.
      Not only that, I’m pretty sure a lot of their board members own NFA items and know that if the NFA is struck down, their $30k full auto M16 value would sink like a rock and would be lucky to get 1/10th of that if they tried to sell it.

      • DING DING DING..

        I believe FULL AUTO AK’s and M-4/M16 variants would tank to around $100-$200 a piece..

        • back in the day I bought a semi-auto Norinco AK for $299…for a $100 more I could have had the select-fire version…one of my more memorable mistakes!…..

        • I’d call it 500, you at least want one that’s properly put together…

  3. Pistol Brace Decision! 5th Circuit Rules in MOCK V GARLAND (good explanation of what’s going on)

  4. Whether or not a case might succeed is the main reason an injunction is issued. This ruling from the 5th Circuit is all but a death knell for the gun control freaks on this issue.

  5. Thanks Dan … Excellent news and narrative. Now on to stop them from screwing with our triggers and FFL businesses.

    • Why bother with range toys like the binary triggers or pistol braces?
      We go after the NFA and we won’t need those things because SBR/Ss and full autos won’t be restricted anymore

      • dream on…you ignore the politics of all this…who was in power when the Hughes Amendment was passed?……

  6. “objectively assesses” likely should never be used in ANY decision that the bats make. IOW it seems that they never use objective determinations on any of the ‘rules’ that they interpret at any time and of course those decisions are subject to reinterpretation at any time. Just my opinion of course ;-(

  7. Since we are faced with a government that shows no respect for the Constitution in a variety of areas and in particular for the 1st, 2nd and 4th amendments communities should begin to form Home Guard Self Defense organizations to protect themselves and neighbors against illegal searches and seizures predominantly conducted by federal law enforcement and some local area police departments. They appear to have lost all civility by appearing with multiple armed officers and other agencies not necessarily associated with an appropriate cause to be there (ie: FFL inspection plus IRS collecting information not related to monetary items or payments). When you talk to most FFL dealers they will tell you up to recent times they have a good working relationship with the ATF but since they moved to a ridiculous zero tolerance policy many law abiding FFL dealers are now being harassed. In probably every case a phone call and setting a meeting date would be sufficient. However, they must feel guilty because who needs twenty armed people to do a legitimate audit on a law abiding citizen. Perhaps if they too were intimidated by 100 armed civilians asking to see the warrants and making sure they were legit (that is not obtained without fraudulent evidence or allowing them to exceed the authority of the warrant) they might start to understand that people are going to push back if “they do not obey the law” as well. All of these people take an oath to uphold the Constitution and they are there to serve and protect law abiding citizens, not to harass and otherwise look for reasons to make them criminals. If they want public support they need to treat people fairly and with respect and there are far too many incidents lately where it is obvious they have no concern whatsoever of ruining the lives of hard working law abiding citizens. The one question they will never answer is how would like it if these things were being done to them or their families. Its time to push back and tell them enough is enough.

    • and how would you muster this group on short notice?…some sort of computerized Paul Revere?…not saying it can’t happen because I have seen it happen…but that was when there was a threat to the entire community…..

      • Precovid social media, now it would probably require a more proprietary network that while avoiding the censorship would also cut down on membership due to increased difficulty of use. Not impossible but more effort than comfortable people tend to make.

  8. This is how their authoritarian socialist (a.k.a. “Communist”, or “Fascist”, different means to the same ends) “lawfare” rolls. The people who wrote the pistol brace rule, changed it multiple times, and then flipped the script to criminalize, and violate the rights of millions of American citizens, are paid by the government. They are PAID BY US. However, WHEN they lose this case on it’s merits, there are no consequences for those who wrote a law, deliberately violating the Constitution’s Bill of Rights, i.e. the citizen’s God given, human rights. What they accomplished was to (a) tie up $millions in legal bills for those citizens injured by their “rule”, and (b) force millions of citizens to comply under threat of arrest, even under threat of death, should any of those citizens resist. MANY of those lawful citizens paid $200 and registered their perfectly legal, non-NFA rifle, to comply. Will the ATF now refund that money? Not without a legal fight costing much more than the $200 fee.M
    eanwhile, the ATF has collected more citizen’s names for it’s (also illegal) database. Meanwhile, WHEN they lose this case, they will write another, similar law, which will again need to be litigated to prevent becoming the force of law. Over, and over, and over, they are PAID to harass citizens and violate their rights, willy-nilly, while we cough up the $$$ to defend our rights. Ultimately, they will win and the citizens will lose, because their “bank” has unlimited funding.

    This is also a great illustration of the worthlessness of the self-professed, Second Amendment supporting GOP Congress, i.e. the corrupt GOP Senators and House members. How many of those will propose and force a vote to repeal the 1933 NFA, and cashier the entire ATF force? How many will force that vote, as a prerequisite to any other legislation? How many will continue to force that issue when again, the GOP controls both Congress and has a willing GOP President to sign that bill? You could count those folks on the fingers of one hand, maybe both hands, and could not be certain that even they would follow through when the pressure from GOP leadership is applied against them. The ATF is violating the US Constitution and the citizens rights, because successive GOP Congresses have allowed them to do that. All of this grief is due to YOUR GOP Congressman and Senator, regardless of the words they utter. The Democrat’s and Biden Administration have only done what they are doing, because of the lack of a “loyal opposition”, an honest, opposing political party. (Yeah, don’t give me that “… you’re naive, politics isn’t that simple …” stuff. It is simple, and the GOP IS accountable for this “brace” rule fiasco, for the entire 1933 NFA, which was passed under America’s second Socialist President, FDR. Wilson was the first; I don’t count other Presidents, such as Teddy Roosevelt or Taft as fully socialist, as much as Wilson and FDR. Remember, the Soviet revolution was in 1917. Wilson’s term, 1913 to 1921, bracketed the first Communist revolution, so “progressive” politics, i.e. socialism, grounded in Darwin’s fake theory of Evolution, were all the rage.)

    Bottom line: Direct your fire on the corrupt GOP, who simply WILL NOT safeguard citizen’s rights under the Constitution, by repealing the NFA, and disbanding the ATF. Anything less is simply political posturing, no matter how “friendly” the politician appears to be to the 2A cause. Aside: The same applies to nationwide, Constitutional carry. How do I have any 2A “inalienable rights” at all, if I can be arrested, convicted, AND imprisoned, if I travel literally ONE MILE across the state line while carrying a firearm, concealed or openly? The very idea defies logic.

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