by The NRA sought to intervene in the Second Amendment Foundation’s case entitled Second Amendment Foundation et al v. BATFE. (corrected case title) This is a case challenging the Biden pistol-brace ban. As with Mock v. Garland, the plaintiffs including all members of the Second Amendment Foundation were covered by the injunction against the enforcement of the pistol-brace ban while the 5th Circuit Court of Appeals is taking up the issue. When the NRA sought to intervene, the Second Amendment Foundation did not oppose this motion but it was opposed by the Bureau of Alcohol, Tobacco, Firearms, and Explosives.
At this point, I think it is important to note that the brief and motion of the NRA seeking intervenor status in this case was signed by William Brewer III as the attorney of record. At the time the NRA filed to intervene, I found it more than surprising as Brewer has little to no expertise in Second Amendment law.
Today in a 12 page Memorandum Opinion and Order, US District Court Judge Jane Boyle denied the NRA’s motion for intervenor status. The net result is that NRA members are not covered by the injunction against enforcement of the pistol-brace ban.
The Federal Rules of Civil Procedure allow intervention by another party in two ways. One is by right and the second is by permission of the judge if he or she finds it warranted.
An intervention by right must be timely. That is a threshold requirement which must be met. Judge Boyle found the NRA’s motion was not timely. After reviewing some of the history of this case which began long before the pistol-brace ban was even finalized, she concluded:
On those facts alone, it is hard to conclude that the NRA’s Motion to Intervene is timely. But the unusual circumstances of this case further militate against such a finding. Specifically, despite knowing of the Rule and Plaintiffs’ limited injunction request, the NRA only sought to intervene once this Court granted Plaintiffs’ motion for preliminary injunction pending the Fifth Circuit appeal in Mock. To find intervention timely under these circumstances would seemingly incentivize “injunction shopping” among putative intervenors seeking to challenge agency actions.
Judge Boyle goes on to add that the NRA knew of the BATFE’s proposed rule for more than a year before it moved to intervene. She then goes on to say that the interests of the NRA members will be adequately represented by the plaintiffs in this case.
In terms of the case for a permissive intervention, Judge Boyle found the same considerations that prevented intervention by right also applied here. Namely that the NRA’s interests are adequately represented by the existing plaintiffs. She notes that any ruling to the contrary would create a “perverse” precedent for potential intervenors to go case shopping for cases where a preliminary injunction had already been granted. Accordingly, she denied the NRA’s motion to intervene on both by right and by permission.
Given this ruling, the NRA will need to hope for success in their case in North Dakota which they are backing. That case, Firearms Regulatory Accountability Coalition v. Garland, does not seem to have any injunctions issued as of now.
Chalk up this denial as another loss in court by Bill Brewer while representing the NRA and taking as much of the member’s money as possible.