Petition for Writ of Certiorari — Pamela Bondi, Attorney General, et al., Petitioners v. Jennifer VanDerStok, et al.

Supreme Court briefFeb 7, 2024

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No. XX-XX

In the Supreme Court of the United States

MERRICK B. GARLAND, ATTORNEY GENERAL, ET AL.,

PETITIONERS

JENNIFER VANDERSTOK, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

APPENDIX TO THE

PETITION FOR A WRIT OF CERTIORARI

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

BRIAN H. FLETCHER

Deputy Solicitor General

NICOLE FRAZER REAVES

Assistant to the Solicitor

General

MARK B. STERN

SEAN R. JANDA

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

APPENDIX

TABLE OF CONTENTS

Page

Appendix A

Appendix B

—

Appendix C

—

Appendix D —

Appendix E —

Appendix F

—

Appendix G

—

Appendix H —

Appendix I

—

Appendix J

—

Appendix K —

Court of appeals opinion (Nov. 9, 2023) ... 1a

District court memorandum opinion

and order granting vacatur

(June 30, 2023) ....................................... 67a

District court final judgment

(July 5, 2023) ........................................ 115a

Supreme Court order vacating

injunction pending appeal

(Oct. 16, 2023) ...................................... 118a

Court of appeals order granting in

part and denying in part motion

to vacate injunction pending appeal

(Oct. 2, 2023) ........................................ 119a

District court opinion and order

granting injunction pending appeal

(Sept. 14, 2023) .................................... 126a

Supreme Court order granting stay

pending appeal (Aug. 8, 2023) ............ 179a

Court of appeals order partially

granting and partially denying stay

pending appeal (July 24, 2023) .......... 180a

District court order denying stay

pending appeal (July 18, 2023) .......... 184a

Declaration of Matthew P. Varisco

(July 14, 2023) ...................................... 186a

Excerpts from administrative record:

ATF letter (Apr. 20, 1978) .................. 209a

ATF letter (June 11, 1980) ................. 214a

ATF letter (May 3, 1983) .................... 216a

ATF letter (Dec. 4, 2020) .................... 218a

(I)

Table of Contents—Continued:

Appendix L

Page

Excerpts from affidavit of

Tolliver Hart (Dec. 9, 2020)................ 226a

— Statutory and regulatory provisions:

15 U.S.C. 901(3) (1940)........................ 241a

18 U.S.C. 921(a)(3)-(4)......................... 241a

18 U.S.C. 926(a) ................................... 243a

27 C.F.R. 478.11 .................................. 244a

27 C.F.R. 478.12(a)(1)-(3) and (c) ....... 245a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 23-10718

JENNIFER VANDERSTOK; MICHAEL G. ANDREN;

TACTICAL MACHINING, L.L.C., A LIMITED LIABILITY

COMPANY; FIREARMS POLICY COALITION,

INCORPORATED, A NONPROFIT CORPORATION,

PLAINTIFFS-APPELLEES

BLACKHAWK MANUFACTURING GROUP,

INCORPORATED, DOING BUSINESS AS 80 PERCENT ARMS;

DEFENSE DISTRIBUTED; SECOND AMENDMENT

FOUNDATION, INCORPORATED; NOT AN L.L.C.,

DOING BUSINESS AS JSD SUPPLY ; POLYMER80,

INCORPORATED, INTERVENOR PLAINTIFFS-APPELLEES

MERRICK GARLAND, U.S. ATTORNEY GENERAL;

UNITED STATES DEPARTMENT OF JUSTICE; STEVEN

DETTELBACH, IN HIS OFFICIAL CAPACITY AS

DIRECTOR OF THE BUREAU OF ALCOHOL, TOBACCO,

FIREARMS AND EXPLOSIVES ; BUREAU OF A LCOHOL,

TOBACCO, FIREARMS , AND EXPLOSIVES ,

DEFENDANTS -APPELLANTS

[Filed:

Nov. 9, 2023]

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:22-CV-691

(1a)

Before WILLETT, ENGELHARDT, and OLDHAM, Circuit

Judges.

KURT D. ENGELHARDT, Circuit Judge:

It has long been said—correctly—that the law is the

expression of legislative will. 1 As such, the best evidence of the legislature’s intent is the carefully chosen

words placed purposefully into the text of a statute by

our duly-elected representatives. Critically, then, lawmaking power—the ability to transform policy into realworld obligations—lies solely with the legislative branch.2

Where an executive agency engages in what is, for all

intents and purposes, “law-making,” the legislature is

deprived of its primary function under our Constitution,

and our citizens are robbed of their right to fair representation in government. This is especially true when

“Positive law is a manifestation of the legislative will.” Arnold

v. United States, 13 U.S. 104, 119 (1815); see also Farrar v. United

States, 30 U.S. 373, 379 (1831) (“[The President] cannot in the absence of law exercise the power of making contracts, and much less,

as in this case, against the expression of the legislative will.”) (emphasis added); Kindle v. Cudd Pressure Control, Inc., 792 F.2d 507,

512 (5th Cir. 1986) (describing “the express legislative will” as “the

determinant”); Sylvia Dev. Corp. v. Calvert Cnty., Md., 48 F.3d 810,

820 (4th Cir. 1995) (noting the “deference to legislative will” inherent

in statutory interpretation); Winstead v. Ed’s Live Catfish & Seafood, Inc., 554 So. 2d 1237, 1242 (La. Ct. App. 1989), writ denied, 558

So. 2d 570 (La. 1990) (“The supreme expression of legislative will

. . . is of course the codes and statutes.”); In re Chin A On, 18

F. 506, 506-07 (D. Cal. 1883) (“[I]t is the duty of the court to obey the

law, as being the latest expression of the legislative will.”).

See Forrest General Hospital v. Azar, 926 F.3d 221, 228 (5th Cir.

2019) (“The Constitution, after all, vests lawmaking power in Congress. How much lawmaking power? ‘All,’ declares the Constitution’s first substantive word.”).

the executive rule-turned-law criminalizes conduct without the say of the people who are subject to its penalties.

The agency rule at issue here flouts clear statutory

text and exceeds the legislatively-imposed limits on

agency authority in the name of public policy. Because

Congress has neither authorized the expansion of firearm regulation nor permitted the criminalization of previously lawful conduct, the proposed rule constitutes unlawful agency action, in direct contravention of the legislature’s will. Accordingly, for the reasons set forth

below, we AFFIRM IN PART and VACATE AND REMAND IN PART the judgment of the district court.

Statutory and Regulatory Background

In April of 2022, the Bureau of Alcohol, Tobacco,

Firearms, and Explosives (“ATF”) issued a Final Rule

in which the terms “firearm” and “frame or receiver,”

among others, were given “an updated, more comprehensive definition.” Definition of “Frame or Receiver”

and Identification of Firearms, 87 Fed. Reg. 24652 (Apr.

26, 2022) (the “Final Rule”). The Final Rule was almost

immediately the subject of litigation claiming that ATF

had exceeded its statutory authority. It is that Final

Rule that is before this Court now.

First, a brief history of the regulatory agency under

fire here. ATF was created in 1972 as an independent

bureau of the U.S. Department of the Treasury.3 The

Homeland Security Act of 2002 later transferred ATF

to the U.S. Department of Justice, where it remains active today. See 6 U.S.C. § 531. Upon its creation, ATF

obtained jurisdiction to act under earlier legislation, inATF History Timeline, Bureau of Alcohol, Tobacco, Firearms

and Explosives, https://www.atf.gov/our-history/atf-history-timeline.

cluding the Gun Control Act of 1968 (“GCA”), 4 which

permits the regulation and taxation of certain “firearms.” Under the GCA, Congress granted to the Attorney General the power to prescribe rules and regulations necessary to carry out the GCA’s provisions. See

18 U.S.C. § 926. The Attorney General thereafter delegated this authority to ATF, to “[i]nvestigate, administer, and enforce the laws related to alcohol, tobacco, firearms, explosives, and arson, and perform other duties as

assigned by the Attorney General.” 28 C.F.R. § 0.130.

Pursuant to this authority, ATF proposed the Final

Rule as an extension of the GCA’s regulation of firearms.

The GCA requires all manufacturers and dealers of

firearms to have a federal firearms license; manufacturers and dealers are thus known as “Federal Firearms

Licensees” or “FFLs.” When those FFLs sell or transfer “firearms,” they must conduct background checks in

most cases, record the firearm transfer, and serialize the

firearm. See 18 U.S.C. §§ 922(t), 923(a), 923(g)(1)(A),

923(i).

The GCA’s predecessor statutes include the National Firearms

Act of 1934 and the Federal Firearms Act of 1938, both of which involved the taxation and regulation of firearms. See National Firearms Act of 1934, ch. 757, Pub. L. 73-474, 48 Stat. 1236; Federal Firearms Act of 1938, ch. 850, Pub. L. No. 75-785, 52 Stat. 1250 (1938)

(repealed 1968).

Of particular note, the Supreme Court has stated: “The Nation’s

legislators chose to place under a registration requirement only a

very limited class of firearms, those they considered especially dangerous.” Staples v. United States, 511 U.S. 600, 622 (Ginsburg, J.,

concurring) (noting also “the purpose of the mens rea requirement—

to shield people against punishment for apparently innocent activity”).

The primary method by which the GCA ensures that

the manufacture and sale of firearms are regulated as

intended is through the imposition of criminal penalties.5

As one example, the GCA generally prohibits “any person” who is not “a licensed importer, licensed manufacturer, or licensed dealer” (i.e., an FFL) from “importing,

manufacturing, or dealing in firearms” and from

“ship[ping] or transport[ing] in interstate or foreign

commerce any firearm to any person.” Id. at § 922(a).

As another example, the GCA prohibits a large class of

persons from not only shipping or transporting firearms, but from possessing them at all. Id. at § 922(g).

Should a person commit these or any of the other unlawful acts found in the twenty-six subsections of section

922, section 924 authorizes various penalties, including

fines, imprisonment, or both. Id. at § 924.

The GCA is found in Title 18 of the United States Code, which

bears the label “Crimes and Criminal Procedure.” See 18 U.S.C.

§ 922.

Interestingly, Congress’s jurisdictional hook whereby it finds authority to regulate firearms in the manner described is the requirement that the firearm travelled in interstate commerce. See generally id.; 18 U.S.C. § 921(2) (defining “interstate or foreign commerce”); see also, e.g., 2.43D Possession of a Firearm by a Convicted

Felon, Fifth Circuit District Judges Association Pattern Jury Instructions Committee, Pattern Jury Instructions, Criminal Cases

(2019) (requiring, under element number four of the offense, that the

Government prove beyond a reasonable doubt “[t]hat the firearm

[ammunition] possessed traveled in [affected] interstate . . . commerce; that is, before the defendant possessed the firearm, it had

traveled at some time from one state to another”). While not challenged in this appeal, the interstate-commerce requirement may call

into question ATF’s jurisdictional authority to promulgate certain

provisions of the Final Rule.

The bedrock of the GCA and its plethora of requirements and restrictions is the word “firearm.” The GCA

defines a “firearm” as: “(A) any weapon . . . which

will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the

frame or receiver of any such weapon; (C) any firearm

muffler or firearm silencer; or (D) any destructive device.” Id. at § 921(a)(3)(C). As no definition for

“frame or receiver” is given in the GCA, ATF previously

defined a “frame or receiver” in 1978 as: “That part of

a firearm which provides housing for the hammer, bolt

or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.” Title and Definition Changes, 43 Fed. Reg. 13531,

13537 (Mar. 31, 1978). This definition remained unchanged for over forty years, until ATF issued the Final

Rule in 2022.

ATF’s 1978 regulatory definition sufficiently captured most firearms of the era. Modern firearms, however, have developed such that many firearms no longer

fall within the definition. In the Final Rule, ATF states

that “the majority of firearms in the United States” no

longer have a clear “frame” or “receiver” that includes

all three elements of the prior definition (that is, a hammer, bolt or breechblock, and firing mechanism). 87

Fed. Reg. at 24655. ATF uses the example of an AR15,6 which does not have a single housing for the bolt

The Supreme Court has held that, to be banned, a weapon must

be “both dangerous and unusual,” and thus, “the relative dangerousness of a weapon is irrelevant when the weapon belongs to a class of

arms commonly used for lawful purposes.” Caetano v. Massachusetts, 577 U.S. 411, 418 (2016) (Alito, J., concurring). Of course, for

many years now, millions of AR-15 rifles have been sold to civilians,

who may lawfully possess them.

(which is part of the “upper assembly”) and the hammer

and trigger (which is part of the “lower assembly”). Id.

Thus, as several district courts have recently recognized, the lower assembly of the AR-15, taken alone, is

likely not covered by federal regulations. See, e.g.,

United States v. Rowold, 429 F. Supp. 3d 469, 475-76

(N.D. Ohio 2019) (“The language of the regulatory definition in § 478.11 lends itself to only one interpretation:

namely, that under the GCA, the receiver of a firearm

must be a single unit that holds three, not two, components: 1) the hammer, 2) the bolt or breechblock, and

3) the firing mechanism.”). Likewise, weapons such as

Glock semiautomatic pistols, which use a “striker” rather than a “hammer” as a firing mechanism, and the Sig

Sauer P320 pistol, which has no one unit containing

those three parts, seemingly may not be regulated under the prior GCA-related definitions. 87 Fed. Reg. at

24655.

The Final Rule was also concerned with the rise of

privately made firearms (“PMFs”).7 These PMFs, also

known colloquially as “ghost guns,” are often made from

readily purchasable “firearm parts kits, standalone

frame or receiver parts, and easy-to-complete frames or

receivers.” Id. at 24652. Because the kits and standalone parts were not themselves considered “firearms”

under any interpretation of the GCA and ATF’s related

definitions, manufacturers of such kits are neither subject to licensing requirements nor required to conduct

The Final Rule defines a PMF as: “A firearm, including a frame

or receiver, completed, assembled, or otherwise produced by a person other than a licensed manufacturer, and without a serial number

placed by a licensed manufacturer at the time the firearm was produced.” 87 Fed. Reg. at 24735.

background checks on purchasers. Id. Further, when

made for personal use, PMFs “are not required by the

GCA to have a serial number placed on the frame or receiver.” Id. These facts, ATF contends, make PMFs

attractive to criminal actors and “pose a challenge to law

enforcement’s ability to investigate crimes.” Id. at

24658.

Notably, the PMFs that play a central role in the Final Rule were not unknown at the time of the GCA’s—

or, for that matter, its predecessors’—enactment. “Because gunsmithing was a universal need in early America, many early Americans who were professionals in

other occupations engaged in gunsmithing as an additional occupation or hobby.” Joseph G.S. Greenlee, The

American Tradition of Self-Made Arms, 54 ST. MARY ’S

L.J. 35, 66 (2023). The tradition of at-home gun-making predates this nation’s founding, extends through the

revolution, and reaches modern times. See id. at 48

(“During the Revolutionary War, when the British attempted to prevent the Americans from acquiring firearms and ammunition, the Americans needed to build

their own arms to survive.”). Considering this long tradition, “[t]he federal government has never required a

license to build a firearm for personal use.” Id. at 80.

“In fact, there were no restrictions on the manufacture

of arms for personal use in America during the seventeenth, eighteenth, or nineteenth centuries.” Id. at 78

(emphasis added). And in perfect accord with the historic tradition of at-home gun-making, Congress made

it exceedingly clear when enacting the GCA that “this

title is not intended to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes.” Pub. L. 90-618, Title I, § 101,

82 Stat. 1213, 1213 (Oct. 22, 1968). ATF’s Final Rule

alters this understanding by adding significant requirements for those engaged in private gun-making activities.

In response to the observed changes in modern firearm construction, the Final Rule provides (in part) that

“[t]he terms ‘frame’ and ‘receiver’ shall include a partially complete, disassembled, or nonfunctional frame or

receiver, including a frame or receiver parts kit, that is

designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or

receiver, i.e., to house or provide a structure for the primary energized component of a handgun, breech blocking or sealing component of a projectile weapon other

than a handgun.” 87 Fed. Reg. at 24739. The Final

Rule also supplements the definition of “firearm” to include a “weapon parts kit that is designed to or may

readily be completed, assembled, restored, or otherwise

converted to expel a projectile by action of an explosive.”

Id. at 24728.8 The Final Rule took effect on August 24,

2022. Id. at 24652.

Among other things not substantially challenged in this litigation, the Final Rule also defined the term “frame” in relation to

handguns and the term “receiver” in relation to long guns, defined

what “variant” means relative to firearms, required that FFLs serialize PMFs that they accept into inventory, and required FFLs to

maintain records on firearms transactions for the entirety of their

business operations, replacing a prior twenty-year requirement.

Finally, the Final Rule contains a severability clause. See 87 Fed.

Reg. at 24730.

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II.

Factual and Procedural Background

On August 11, 2022, the plaintiffs in this case 9 filed a

petition for review in the Northern District of Texas.

The plaintiffs claimed that two portions of the Final

Rule, which redefine “frame or receiver” and “firearm,”

exceeded ATF’s congressionally mandated authority.

The plaintiffs requested that the court hold unlawful and

set aside the Final Rule, and that the court preliminarily

and permanently enjoin the Government from enforcing

or implementing the Final Rule.

Roughly a month later, the district court issued its

first of several preliminary injunctions. In this first injunction, the district court found that ATF’s new definition of “frame or receiver” is facially unlawful because it

included “firearm parts that are not yet frames or receivers” in contravention of Congress’s clear language

in the GCA. VanDerStok v. Garland, 625 F. Supp. 3d

570, 578-79 (N.D. Tex. 2022), opinion clarified, No. 4:22CV-00691-O, 2022 WL 6081194 (N.D. Tex. Sept. 26,

2022) (emphasis in original). The district court also

found that weapon parts kits cannot be regulated by

ATF under the GCA because “Congress’s definition

does not cover weapon parts, or aggregations of weapon

The plaintiffs and plaintiff-intervenors in this action are two individuals, Jennifer VanDerStok and Michael Andren; Tactical Machining, LLC; Firearms Policy Coalition, Inc.; BlackHawk Manufacturing Group, Inc. d/b/a 80 Percent Arms; Defense Distributed; Second Amendment Foundation, Inc.; Not An LLC d/b/a JSD Supply;

and Polymer80, Inc.

The defendants in this action are Merrick Garland, U.S. Attorney General; the United States Department of Justice; Steven Dettelbach, in his official capacity as Director of ATF; and ATF. These

defendants are collectively referred to herein as “the Government.”

11a

parts, regardless of whether the parts may be readily

assembled into something that may fire a projectile.”

Id. at 580 (emphasis in original). Relying on this same

logic, the district court subsequently expanded the preliminary injunction and extended similar injunctions to

other plaintiffs. The Government timely appealed each

of these injunctions.

While those two appeals were pending, the district

court granted summary judgment to the plaintiffs and

vacated the Final Rule in its entirety. VanDerStok v.

Garland, No. 4:22-CV-00691-O, 2023 WL 4539591 (N.D.

Tex. June 30, 2023). The logic of the district court’s order closely tracked its logic at the injunctive stage: the

court held that “the Final Rule’s amended definition of

‘frame or receiver’ does not accord with the ordinary

meaning of those terms and is therefore in conflict with

the plain statutory language.” Id. at *14. ATF “may

not,” the court continued, “properly regulate a component as a ‘frame or receiver’ even after ATF determines

that the component in question is not a frame or receiver.” Id. (emphasis in original). Additionally, the

court held that because “Congress did not regulate firearm parts as such, let alone aggregations of parts,” ATF

had no authority to regulate weapon parts kits. Id. at

*17. Holding that vacatur is “the ‘default rule’ for

agency action otherwise found to be unlawful,” the court

vacated the Final Rule under 5 U.S.C. § 706(2)(C). Id.

at *18.

The Government promptly filed a notice of appeal,

and subsequently filed an emergency motion to stay

pending appeal. The district court denied the request

for a stay pending appeal but granted a seven-day administrative stay so that the Government might seek

12a

emergency relief from this Court. The Government did

so.

This Court considered and denied the Government’s

emergency motion to stay the district court’s judgment

as to the two challenged portions of the Final Rule but

granted a stay as to the non-challenged provisions of the

rule. VanDerStok v. Garland, No. 23-10718, 2023 WL

4945360 (5th Cir. July 24, 2023). The Government then

requested a full stay from the Supreme Court. Without

discussion, the Supreme Court stayed the district court’s

order and judgment “insofar as they vacate the [F]inal

[R]ule” pending (1) this Court’s decision and (2) either

denial of certiorari thereafter or judgment issued by the

Supreme Court after grant of certiorari. Garland v.

Vanderstok, No. 23A82, 2023 WL 5023383 (U.S. Aug. 8,

2023).

This Court held oral argument on September 7, 2023.

Shortly beforehand, the Government voluntarily dismissed the two appeals relating to the injunctions.

Thus, all that remains before this Court now is the appeal of the district court’s final judgment vacating the

Final Rule in its entirety.

III. Standard of Review

“We review a grant of summary judgment de novo,

viewing all the evidence in the light most favorable to

the nonmoving party and drawing all reasonable inferences in that party’s favor.” Parm v. Shumate, 513

F.3d 135, 142 (5th Cir. 2007) (citing Crawford v. Formosa Plastics Corp., 234 F.3d 899, 902 (5th Cir. 2000)).

“The court shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter

13a

of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986).

IV.

Analysis

The plaintiffs challenged two portions of the Final

Rule in the underlying lawsuit: (1) ATF’s proposed

definition of “frame or receiver” including incomplete

frames and receivers; and (2) ATF’s proposed definition

of “firearm” including weapon parts kits. We analyze

each challenged portion of the Final Rule in turn below,

before addressing the appropriate relief should these

specific portions of the Final Rule be held unlawful.

At the outset, we must ensure that we look through

the proper lens when analyzing ATF’s actions here. 10

“It is axiomatic that an administrative agency’s power

to promulgate legislative regulations is limited to the authority delegated by Congress.” Bowen v. Georgetown

Univ. Hosp., 488 U.S. 204, 208 (1988); see also Clean

Water Action v. U.S. Env’t Prot. Agency, 936 F.3d 308,

313 n.10 (5th Cir. 2019) (“To be sure, agencies, as mere

creatures of statute, must point to explicit Congressional authority justifying their decisions.”). In the

GCA—the source of ATF’s capacity to promulgate the

Final Rule—Congress delegated authority to ATF

through the Attorney General to “prescribe only such

rules and regulations as are necessary to carry out the

provisions of this chapter.” 18 U.S.C. § 926(a). Such a

grant of authority from the legislature to an executive

Notably, the Chevron doctrine has not been invoked on appeal.

Even if the Government had done so, Chevron would likely not apply

for several reasons, including the GCA’s unambiguous text and its

imposition of criminal penalties. See, e.g., Cargill v. Garland, 57

F.4th 447, 464-66, 472-73 (5th Cir. 2023).

14a

agency is generally policed by the Administrative Procedure Act (“APA”), which allows courts to set aside

agency action found to be, among other things, “in excess of statutory jurisdiction, authority, or limitations,

or short of statutory right.” 5 U.S.C. § 706(2)(C).

Thus, a core inquiry in a case such as this one is whether

the proposed agency rule is a lawful extension of the

statute under which the agency purports to act, or

whether the agency has indeed exceeded its “statutory

jurisdiction, authority, or limitations.” See id.

How do we know when an agency has exceeded its

statutory authority? Simple: the plain language of

the statute tells us so. Therefore, “[w]e start, as we always do, with the text.” Sackett v. Env’t Prot. Agency,

598 U.S. 651, 671 (2023); see also Nat’l Fed’n of Indep.

Bus. v. Sebelius, 567 U.S. 519, 544 (2012) (“[T]he best

evidence of Congress’s intent is the statutory text.”).

“In statutory interpretation disputes, a court’s proper

starting point lies in a careful examination of the ordinary meaning and structure of the law itself.” Food

Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364

(2019). Here, we read the words of the GCA “in their

context and with a view to their place in the overall statutory scheme.” Davis v. Michigan Dep’t of Treasury,

489 U.S. 803, 809 (1989). Only where the statutory text

shows that ATF has “clear congressional authorization”

to enact a regulation can such a regulation withstand judicial scrutiny. See West Virginia v. Env’t Prot.

Agency, 142 S. Ct. 2587, 2614 (2022) (quoting Util. Air

Regul. Grp. v. E.P.A., 573 U.S. 302, 324 (2014)). As explained below, we hold that ATF lacked congressional

authorization to promulgate the two challenged portions

of the Final Rule.

15a

ATF’s proposed definition of “frame or receiver”

The GCA includes as a “firearm” the “frame or receiver” of a weapon. 18 U.S.C. § 921(a)(3)(C). The

GCA itself does not define the term “frame or receiver.”

See id. The Final Rule, however, newly defines the

term “frame or receiver” to include “a partially complete, disassembled, or nonfunctional frame or receiver,

including a frame or receiver parts kit, that is designed

to or may readily be completed, assembled, restored, or

otherwise converted to function as a frame or receiver.”

87 Fed. Reg. at 24739.

Because Congress did not define “frame or receiver”

in the GCA, the ordinary meaning of the words control.

See Bouchikhi v. Holder, 676 F.3d 173, 177 (5th Cir.

2012). Both a “frame” and a “receiver” had set, wellknown definitions at the time of the enactment of the

GCA in 1968. In 1971, Webster’s Dictionary defined a

“frame” as “the basic unit of a handgun which serves as

a mounting for the barrel and operating parts of the

arm” and a “receiver” as “the metal frame in which the

action of a firearm is fitted and which the breech end of

the barrel is attached.” Webster’s Third International

Dictionary 902, 1894 (1971). Similarly, ATF’s 1978

definition of frame and receiver—the most recent iteration of the definition before the Final Rule’s proposed

change—defined “frame or receiver” as “[t]hat part of a

firearm which provides housing for the hammer, bolt or

breechblock, and firing mechanism, and which is usually

threaded at its forward position to receive the barrel.”11

ATF’s 1968 definition of “frame or receiver” was identical:

“That part of a firearm which provides housing for the hammer, bolt

or breechblock, and firing mechanism, and which is usually threaded

16a

43 Fed. Reg. at 13537. As is apparent from a comparison of the dictionary definitions and the regulatory definition, ATF’s previous understanding of “frame or receiver” closely tracked the public’s common understanding of such terms at the time of enactment. 12

After almost fifty years of uniform regulation, ATF,

via the Final Rule, now purports to expand the terms

“frame” and “receiver,” as they were understood in

1968, to include changes in firearms in modern times.

But the meanings of statutes do not change with the

times. See Bostock v. Clayton County, 140 S. Ct. 1731,

1738 (2020). “This Court normally interprets a statute

in accord with the ordinary public meaning of its terms

at the time of its enactment. After all, only the words

on the page constitute the law adopted by Congress and

approved by the President.” Id. (emphasis added).

ATF’s inclusion now of “partially complete, disassembled, or nonfunctional” frames and receivers materially

deviates from past definitions of these words to encompass items that were not originally understood to fall

within the ambit of the GCA. See New Prime Inc. v.

Oliveira, 139 S. Ct. 532, 539 (2019) (“[W]ords generally

should be interpreted as taking their ordinary meaning

at the time Congress enacted the statute” because “if

judges could freely invest old statutory terms with new

meanings, we would risk amending legislation outside

the single, finely wrought and exhaustively considered,

at its forward portion to receive the barrel.” Commerce in Firearms and Ammunition, 33 Fed. Reg. 18,555, 18,558 (Dec. 14, 1968).

The Government itself acknowledged that “ATF’s prior regulatory definitions have been ‘consistent with common and technical

dictionary definitions.’ ” VanDerStok, 2023 WL 4539591, at *13

(quoting Defs.’ Supp. Br.) (emphasis removed).

17a

procedure the Constitution commands.”) (cleaned up).

As such, the proposed definition is an impermissible extension of the statutory text approved by Congress.

A plain reading of the Final Rule demonstrates

ATF’s error. In the GCA’s definition of “firearm,” the

first subsection includes flexible language such as “designed to or may readily be converted to expel a projectile by the action of an explosive.” See 18 U.S.C.

§ 921(a)(3)(A). But the subsection immediately thereafter, which contains the term “frame or receiver,” does

not include such flexibility. “[W]hen Congress includes

particular language in one section of a statute but omits

it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in

the disparate inclusion or exclusion.” Collins v. Yellen,

141 S. Ct. 1761, 1782 (2021) (citation omitted). ATF’s

assertion that Congress has repeatedly used language

such as “designed to” and “readily” in other definitions

or statutes only emphasizes the point: Congress explicitly declined to use such language in regard to

frames or receivers. Thus, we presume the exclusion of

the phrase “designed to or may readily be converted” in

the “frame or receiver” subsection to be purposeful,

such that ATF cannot add such language where Congress did not intend it to exist. See Connecticut Nat.

Bank v. Germain, 503 U.S. 249, 253-54 (1992) (“We have

stated time and again that courts must presume that a

legislature says in a statute what it means and means in

a statute what it says there.”).

There is also a clear logical flaw in ATF’s proposal.

As written, the Final Rule states that the phrase “frame

or receiver” includes things that are admittedly not yet

frames or receivers but that can easily become frames

18a

or receivers—in other words: parts. As the district

court put it, under the Final Rule, “ATF may properly

regulate a component as a ‘frame or receiver’ even after

ATF determines that the component in question is not a

frame or receiver.” VanDerStok, 2023 WL 4539591, at

*14 (emphasis in original). Such a proposition defies

logic: “a part cannot be both not yet a receiver and a receiver at the same time.” Id. (emphasis in original).

This confusion highlights ATF’s attempt to stretch the

GCA’s language to fit modern understandings of firearms without the support of statutory text. 13

The Government argues that ATF has historically

regulated parts that are not yet frames or receivers as

frames or receivers, thus making the Final Rule a valid

extension of past agency practice. This argument fails

for two reasons. First, as the district court aptly

stated, “historical practice does not dictate the interpretation of unambiguous statutory terms.” VanDerStok,

2023 WL 4539591, at *15. Simply because ATF may

have acted outside of its clear statutory limits in the past

does not mandate a decision in its favor today. Second,

the Government’s current argument regarding the

“readily converted” language as it applies to frames and

receivers is at odds with its recent arguments in other

courts. For example, in its briefing for a case in the

Perhaps noticing the error in its incredibly broad and murky

proposal, ATF affirmatively excluded from the definition’s scope “a

forging, casting, printing, extrusion, unmachined body, or similar article that has not yet reached a stage of manufacture where it is clearly

identifiable as an unfinished component part of a weapon (e.g., unformed block of metal, liquid polymer, or other raw material.).” 87

Fed. Reg. at 24739. ATF’s attempt to carve out this vague laundry

list of unfinished products further demonstrates that the proposed

definition lacks any objective hook in the statute.

19a

Southern District of New York in early 2021, the Government stated that “the ‘designed to’ and ‘readily converted’ language are only present in the first clause of

the statutory definition.

Therefore, an unfinished

frame or receiver does not meet the statutory definition

of a ‘firearm’ simply because it is ‘designed to’ or ‘can

readily be converted into’ a frame or receiver.” Fed.

Defs.’ Mem. of Law in Support of Mot. for Summ. J.,

Doc. 98 at 4, Syracuse v. ATF, No. 1:20-cv-06885

(S.D.N.Y. Jan. 29, 2021). Clearly, the Government has

arbitrarily reversed course since authoring the Syracuse brief, yet it offers no explanation for its new regulatory position. See Acadian Gas Pipeline Sys. v.

FERC, 878 F.2d 865, 868 (5th Cir. 1989) (“[A]ny departure from past interpretations of the same regulation

must be adequately explained and justified.”). The

sharp change in the Government’s argument over a few

short years emphasizes the harm in relying so heavily

on an agency’s historical practice, rather than the unambiguous text of the statute.

Because it clearly conflicts with the plain language of

the GCA, the challenged portion of the Final Rule that

redefines “frame or receiver” to include partially complete, disassembled, or nonfunctional frames or receivers constitutes unlawful agency action.

ATF’s proposed definition of “firearm”

The Final Rule purports to supplement the GCA’s

definition of “firearm” by including the following language: “The term shall include a weapon parts kit that

is designed to or may readily be completed, assembled,

restored, or otherwise converted to expel a projectile by

the action of an explosive.” 87 Fed. Reg. at 24728. In

other words, ATF expanded the scope of the GCA from

20a

the explicit “firearm” to now include aggregations of

weapon parts that can be “readily” assembled into a

functional weapon. See id.

The district court correctly held that ATF has no authority whatsoever to regulate parts that might be incorporated into a “firearm” simply because Congress

explicitly removed such authority when it enacted the

GCA. The GCA’s predecessor statute, the Federal

Firearms Act (“FFA”), had specific language that authorized regulation of “any part or parts of ” a firearm.

See Federal Firearms Act of 1938, Ch. 850, Pub. L. No.

75-785, 52 Stat. 1250, 1250 (1938) (repealed 1968).

However, Congress removed this language when it enacted the GCA, replacing “any part or parts” with just

“the frame or receiver of any such weapon.” Thus, the

GCA does not allow for regulation of all weapon parts;

rather, it limits regulation to two specific types of

weapon parts. 14 The Final Rule ignores this change

completely and improperly rewrites and expands the

GCA where Congress clearly limited it. See Intel Corp.

Inv. Pol’y Comm. v. Sulyma, 140 S. Ct. 768, 779 (2020)

(“When Congress acts to amend a statute, we presume

it intends its amendment to have real and substantial effect.”) (citation omitted). Again, the legislative will has

been expressed, and we are bound to follow it.

In the Senate Report connected to the passage of the GCA, the

committee stated in reference to the amended definition of “firearm”

in section 921(a)(3): “It has been found that it is impractical to have

controls over each small part of a firearm. Thus, the revised definition substitutes only the major parts of the firearm; that is, frame

or receiver for the words ‘any part or parts.’ ” S. Rep. No. 90-1097

(1968), as reprinted in 1968 U.S.C.C.A.N. 2112, 2200.

21a

Further, Congress has shown that it knows how to

regulate “parts” of weapons when it so chooses. For

example, section 921(a)(4)(C) of the GCA, in defining a

“destructive device” (one of the four subsections of the

“firearm” definition), states that such term means “any

combination of parts either designed or intended for use

in converting any device into any destructive device.”

18 U.S.C. § 921(a)(4)(C). Congress thus clearly regulated combinations or aggregations of “parts” in one section of the GCA, yet it did not do so when it defined “firearm” within the same statute.15 Another helpful examYet another example within the same statute: Congress defined “firearm silencer” and “firearm muffler” in section 921(a)(25)

to include “any combination of parts, designed or redesigned, and

intended for us in assembling or fabricating a firearm silencer or

firearm muffler.” 18 U.S.C. § 921(a)(25) (emphasis added).

And another example: In section 921, Congress defined “handgun” to include “any combination of parts from which a firearm

described in subparagraph (A) can be assembled.” 18 U.S.C.

§ 921(a)(30)(B) (emphasis added).

And another: In section 922, when defining certain unlawful

acts under the GCA, Congress explicitly stated that “[i]t shall be unlawful for any person to assemble from imported parts any semiautomatic rifle or any shotgun.” 18 U.S.C. § 922(r) (emphasis added).

Moreover, to further demonstrate the particular use by Congress of the term “parts” and the assembling of parts: The 1990

Crime Control Bill, H.R. 5269, would have made it unlawful to assemble a semi-automatic rifle or shotgun that is identical to one that

could not be imported. See Crime Control Act, § 2204, P.L. 101-647

(1990), enacting current 18 U.S.C. § 922(r). Congresswoman Jolene Unsoeld (D., Wash.) offered an amendment to kill the ban on

domestic manufacturing by inserting “from imported parts” into the

bill such that the enactment, as passed, made it unlawful “to assemble from imported parts any semi-automatic rifle or any shotgun

which is identical to any rifle or shotgun prohibited from importation

. . . ” She argued—correctly—that “Congress, not a nameless,

22a

ple is the definition of “machinegun” in 26 U.S.C.

§ 5845(b), which includes “any part . . . or combination of parts designed and intended, for use in converting a weapon into a machinegun, and any combination of

parts from which a machinegun can be assembled.”

Conversely, in defining “firearm” under the GCA, Congress used more constrained language aimed at specifically named weapon parts, not any and all combinations

of weapon parts that could later be assembled into a

functioning weapon. In sum, the word “parts” is conspicuously absent from the definition of “firearm” in section 921, despite Congress’s consistent—and meticulous

—use of the word in other statutory provisions. See

Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440,

448 n.3 (2006) (“Our more natural reading is confirmed

by the use of the word . . . elsewhere in the United

States Code.”). The point is a simple one: If Congress

wanted to regulate aggregations of weapon parts with

respect to “firearms,” it could have. Congress, however,

chose not to do so,16 and ATF may not alter that decision

on its own initiative. ATF cannot legislate.

faceless bureaucrat in the Treasury Department, should decide

which firearms Americans can own.” 136 Cong. Rec. H8863-64

(Oct. 4, 1990). The Unsoeld amendment passed by a vote of 257 to

172. See id. at H8867; 18 U.S.C. § 922(r).

The Government apparently recognized as much in recent litigation, arguing that “Congress has chosen to exclude firearm parts

from the scope of the GCA, including parts that could be assembled

with a homemade receiver and frame to make a firearm.” Gov’t’s

Mot. to Dismiss, California v. ATF, No. 3:20-cv-06761, 2020 WL

9849685 (N.D. Cal. Nov. 30, 2020). Notably, the Government went

on to assert that “Congress has also chosen to permit the home manufacture of unserialized firearms for personal use.” Id. Much like

in the Syracuse brief, supra, the Government seemingly took a com-

23a

ATF finds its primary justification for regulating

weapon parts kits in the “designed to or may readily be

converted to” language in the GCA’s definition of “firearm.” The Government argues that the statute captures any item or items that may be transformed or

changed into a working firearm, based on the dictionary

definition of “convert” 17 at the time of the GCA’s enactment. Because weapon parts kits allow individuals to

“convert” various parts into an operational firearm, the

Government argues, the Final Rule’s proposed definition falls clearly within the GCA’s ambit.

But this stretches the words too far. The Government wants the word “convert” to be all-encompassing,

such that any process or procedure that could ultimately

lead to a finalized firearm can be regulated under the

GCA’s language. The language, however, is much more

precise than that. In fact, the Government’s emphasis

on the word “convert” ignores the surrounding words:

the GCA does not just regulate anything that can be

“converted” (or, to use the Government’s proposed synonym, “transformed”) into a firearm but rather regulates “any weapon” that “may readily be converted” into

a functional firearm. The phrase “may readily be converted” 18 cannot be read to include any objects that

pletely opposite position in previous litigation than it takes before

this Court in the present matter.

The Government cites to Webster’s 1968 edition to define “convert” as “to change from one state to another; alter in form, substance,

or quality; transform, transmute.” Webster’s Third New International Dictionary of the English Language 499 (1968) (formatting

altered).

Further demonstrating its misunderstanding and misuse of the

statutory text, ATF apparently equates the phrase “readily be converted” from the GCA with the phrase “be readily restored” in the

24a

could, if manufacture is completed, become functional at

some ill-defined point in the future. This would strip

the word “readily”19 of its meaning, revert the GCA to

National Firearms Act (“NFA”). However, these two different statutes have radically different regulatory scopes: the former regulates ordinary firearms (like a standard-issue pistol or rifle), while

the latter regulates machine guns, suppressors, and short-barreled

shotguns that are among the most heavily controlled items in our

country (if not the world). It is unsurprising that, given their very

different scopes, courts have interpreted these texts to reach very

different results. Compare United States v. 16,179 Molso Italian

.22 Caliber Winlee Derringer Convertible Starter Guns, 443 F.2d

463, 465 (2d Cir. 1971) (interpreting the GCA’s “readily be converted”

text to mean something as short as twelve minutes), with United

States v. Smith, 477 F.2d 399, 400-01 (8th Cir. 1973) (interpreting

the NFA’s “be readily restored” text to mean up to eight hours of

work, done in a professional shop, by an individual with an advanced

understanding of metallurgy). Despite these differences, in the Final Rule, ATF expressly conflates the two statutory phrases and

claims that it can regulate partially complete “frames or receivers”

using either standard. See, e.g., 87 Fed. Reg. at 24661 n.43 (relying

on Winlee Derringer and Smith); id. at 24678-79 (relying on NFA

and GCA interchangeably). This haphazard combination of standards employed by ATF in its Final Rule is the direct result of an

agency that has strayed too far from its statutory foundation provided by Congress.

ATF itself understood the importance of the word “readily” in

the statute—the Final Rule includes numerous factors that might

help ATF determine when something can “readily” be made into a

working firearm. 87 Fed. Reg. at 24735. The appellees make many

well-reasoned arguments regarding the ambiguity and vagueness of

the Final Rule’s “readily” standard. To the extent ATF relies on

such a subjective multi-factor test to determine on a case-by-case

basis when parts may “readily” be converted into a working firearm,

this Court looks to the wisdom of the Supreme Court: “It is one

thing to expect regulated parties to conform their conduct to an

agency’s interpretations once the agency announces them; it is quite

another to require regulated parties to divine the agency’s interpre-

25a

its prior articulation in the FFA, and allow for regulation of weapon parts generally, which, as we have seen,

was not Congress’s intent in passing the GCA. Look no

further than the words ATF used in the Final Rule’s

proposed “firearm” definition:

it includes weapon

parts kits that “may readily be completed, assembled,

restored, or otherwise converted to expel a projectile.”

87 Fed. Reg. at 24728. Reading “converted” in conjunction with the other listed verbs—“completed, assembled, restored”—we can see that the definition itself

contemplates less drastic measures than the full transformation actually required by these parts kits. See

Hilton v. Sw. Bell Tel. Co., 936 F.2d 823, 828 (5th Cir.

1991) (“When general words follow an enumeration of

. . . things, such general words are not to be construed

in their widest extent, but are to be held as applying only

to . . . things of the same general kind or class as

those specifically mentioned.”). The Government’s attempt to use the word “convert” to justify its unprecedented expansion of the GCA thus collapses upon a cursory reading of the text.

The Government responds that courts have long recognized that disassembled, or nonoperational, weapons

constitute “firearms” under the GCA, and cites our decision in United States v. Ryles, 988 F.2d 13, 16 (5 th Cir.

1993). There, a defendant was in possession of a “disassembled [firearm] in that the barrel was removed

from the stock and that it could have been assembled in

thirty seconds or less.” Id. We held that because this

“disassembled shotgun could have been ‘readily converted’ to an operable firearm,” it constituted a firearm

tations in advance or else be held liable . . . ” Christopher v.

SmithKline Beecham Corp., 567 U.S. 142, 158-59 (2012).

26a

under the GCA. Id. Unlike the firearm in Ryles,

weapon parts kits are far from being “operable.” Assembling a weapon parts kit takes much longer than

thirty seconds, and the process involves many additional

steps. Because of these differences, weapon parts kits

are not “ ‘readily converted’ to an operable firearm,” and

thus they do not constitute “firearms” under the GCA.

Id.

Consider the long-standing tradition of at-home

weapon-making in this country. See Greenlee, supra.

We assume Congress was familiar with the relevant historical context when writing the GCA, yet Congress

made no clear reference to aggregations of weapon

parts or PMFs generally in the text of the GCA. Rather, as noted above, Congress clearly stated that the

GCA “is not intended to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes.” 82 Stat. at 1213. Congress

also emphasized that “it is not the purpose of [the GCA]

to place any undue or unnecessary Federal restrictions

or burdens on law-abiding citizens with respect to the

acquisition, possession, or use of firearms appropriate

to the purpose of hunting, trapshooting, target shooting,

personal protection, or any other lawful activity.” Id.

at 1213-14. ATF’s Final Rule, however, places substantial limits on the well-known and previously unregulated

right to “the private ownership or use of firearms by

law-abiding citizens for lawful purposes.” Id. at 1213.

Take, for example, an individual who buys a weapon

parts kit containing several unfinished parts he later intends to build and adapt into a functional firearm for his

personal use. Section 922 of the GCA, which uses the

term “firearm” to describe many of the “unlawful acts”

27a

contained therein, may place additional burdens on this

individual now that ATF has included aggregations of

parts in the definition of “firearm.” Parts contained in

the kit, which were previously unregulated, could now

fall into the Final Rule’s new definitions, such that the

individual cannot sell, 20 transport to another state,21 or,

in some instances, possess the parts at all. 22 And key

determinations, like which parts are regulated, what

stage of manufacture they must be in, and how many together constitute an actual “firearm,” are exceedingly

unclear under the Final Rule, such that the individual

must guess at what he is and is not allowed to do. 23 By

expanding the types of items that are considered “firearms,” ATF has cast a wider net than Congress intended:

under the Final Rule, the GCA will catch individuals who

manufacture or possess not just functional weapons, but

even minute weapon parts that might later be manufactured into functional weapons. The Final Rule purports to criminalize such conduct and impose fines, imprisonment, and social stigma on persons who, until the

Final Rule’s promulgation, were law-abiding citizens.

ATF cannot so transform the GCA to include aspects of

18 U.S.C. § 922(a)(1).

Id. at § 922(a)(2).

Id. a § 922(g).

See United States v. Nat’l Dairy Corp., 372 U.S. 29, 32-33 (1963)

(“[C]riminal responsibility should not attach where one could not

reasonably understand that his contemplated conduct is proscribed.”);

Johnson v. United States, 576 U.S. 591, 595 (2015) (“Government violates [the due process clause] by taking away someone’s life, liberty, or property under a criminal law so vague that it fails to give

ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.”).

28a

the nation’s firearm industry that were previously—and

purposefully—excluded from the statute. 24

As the district court succinctly stated, “the Gun Control Act’s precise wording demands precise application.”

VanDerStok, 2023 WL 4539591, at *17. Yet ATF’s proposed definition is not only imprecise, ambiguous, and

violative of the statutory text, it also legislates. Thus,

the challenged portion of the Final Rule that redefines

“firearm” to include weapon parts kits constitutes unlawful agency action.

Public policy concerns

The Government and amici argue that the challenged portions of the Final Rule must be upheld to promote important public policy interests and carry out the

essential purpose of the GCA. They point to serious

concerns regarding public safety, the apparent rise in

criminal usage of “ghost guns,” and the current difficulties in firearm tracing for law enforcement. Without

the Final Rule, they argue, bad actors will use the “substantial loopholes” in the text to completely circumvent

the GCA and, ultimately, gut the law entirely.

Congress has been particular in limiting ATF’s authority in a

number of respects. In fact, when the NFA was reenacted as Title

2 of the GCA, and remained a chapter of the Internal Revenue Code,

it set forth definitions including “machine gun” and “rifle,” as well as

for particular parts. It also excluded from the definition of “firearm” certain weapons. Thereafter, ATF began removing excepted

weapons from this category, thus bringing them within the NFA’s

definition of prohibited weapons. Congress responded in kind and

acted to prevent ATF from doing so. See Consolidated and Further

Continuing Appropriations Act, 2012, P.L. 112-55, 125 Stat. 552, 609

(Nov. 18, 2011).

29a

“However, the fact that later-arising circumstances

cause a statute not to function as Congress intended

does not expand the congressionally-mandated, narrow

scope of the agency’s power.” Texas v. United States,

497 F.3d 491, 504 (5th Cir. 2007). Likewise, “an administrative agency’s power to regulate in the public interest must always be grounded in a valid grant of authority from Congress.” Food & Drug Admin. v. Brown &

Williamson Tobacco Corp., 529 U.S. 120, 161 (2000).

Where the statutory text does not support ATF’s proposed alterations, ATF cannot step into Congress’s

shoes and rewrite its words, regardless of the good intentions that spurred ATF to act.

As this Court stated in Cargill v. Garland, “it is not

our job to determine our nation’s public policy. That

solemn responsibility lies with the Congress.” 57 F.4th

447, 472 (5th Cir. 2023). While the policy goals behind

the Final Rule may be laudable, neither ATF nor this

Court may, on its own prerogative, carry out such goals.

That heavy burden instead falls squarely on Congress.

See Biden v. Nebraska, 143 S. Ct. 2355, 2372 (2023)

(“The question here is not whether something should be

done; it is who has the authority to do it.”). “If judges

could add to, remodel, update, or detract from old statutory terms . . . we would risk amending statutes

outside the legislative process reserved for the people’s

representatives. And we would deny the people the

right to continue relying on the original meaning of the

law they have counted on to settle their rights and obligations.” Bostock, 140 S. Ct. at 1738. Any “loopholes”

in the law must be filled by Congress, not by ATF, and

not by this Court. See Cargill, 57 F.4th at 461 (“Perhaps Congress’s choice of words was prudent, or perhaps it was not. That is not for us to decide.”).

30a

Our concern for strict adherence to statutory text is

especially heightened here where the Final Rule purports to criminalize what was previously lawful conduct.

As described above, section 922 of the GCA describes a

plethora of “unlawful acts” related to firearm possession, use, and sale, and section 924 describes the penalties for any violations, including hefty fines and imprisonment of up to ten years. See 18 U.S.C. §§ 924, 926.

Because ATF’s Final Rule expands the scope of the

GCA to include previously unregulated conduct, an ordinary citizen who owns certain firearm-related items

(and which items are included is only ATF’s guess) may

now be subjected to the criminal penalties contained

within the GCA practically overnight, without the input

of Congress. While agencies may enact regulations under a penal statute that result in criminal liability, the

agencies must always look to statutory authority to

sanction their actions. Only Congress can actually

criminalize behavior. 25 Yet the Final Rule plainly exceeds the limits Congress itself placed on criminal liability

in the realm of firearm regulation.26 We therefore hold

See, e.g., 1 Charles E. Torcia, WHARTON’S CRIMINAL LAW

§ 10 (15th ed. 2019) (“It is for the legislative branch of a state or the

federal government to determine . . . the kind of conduct which

shall constitute a crime.”); but see Brenner M. Fissell, When Agencies Make Criminal Law, 10 U.C. IRVINE L. REV. 855 (2020) (analyzing the growing trend in “administrative crimes,” or crimes created and defined by agencies’ rules).

Even if the Court (and the parties) were wrong in concluding

that the statute is unambiguous, we would nevertheless reach the

same conclusion here because under the rule of lenity, we construe

ambiguous statutes against imposing criminal liability—precisely

what ATF has done here. The rule of lenity is a “time-honored interpretive guideline” used by this Court and others “to construe ambiguous statutes against imposing criminal liability.” Cargill, 57

31a

unlawful the two challenged portions of the Final Rule as

improper expansions of ATF’s statutory authority.

The remedy

We turn now to the appropriate remedy. The Government argues that the district court’s universal vacatur of the entire Final Rule (i.e., not just the two challenged portions) was overbroad, regardless of the merits of the case. While this Court’s precedent generally

sanctions vacatur under the APA, 27 we VACATE the

district court’s vacatur order and REMAND to the disF.4th at 471 (quoting Liparota v. United States, 471 U.S. 419, 429

(1985)). This interpretive rule mandates that, should the GCA’s

text be at all unclear, we err on the side of those citizens who now

face unforeseen criminal liability under ATF’s new definitions. See

United States v. Thompson/Ctr. Arms Co., 504 U.S. 505, 518 (1992)

(“Making a firearm without approval may be subject to criminal

sanction, as is possession of an unregistered firearm and failure to

pay the tax on one,” and therefore, it is “proper . . . to apply the

rule of lenity and resolve the ambiguity in [the citizens’] favor.”);

Crandon v. United States, 494 U.S. 152, 168 (1990) (“[W]e are construing a criminal statute and are therefore bound to consider application of the rule of lenity.”). To the extent an argument for the

statute’s ambiguity holds any water, we would rely on the rule of

lenity to further bolster the conclusion that ATF, a non-legislative

government agency, exceeded its statutory authority in promulgating the challenged portions of the Final Rule. See Cargill, 57 F.4th

at 471 (“[A]ssuming the definition . . . is ambiguous, we are

bound to apply the rule of lenity.”).

Data Mktg. P’ship, LP v. United States Dep’t of Lab., 45 F.4th

846 (5th Cir. 2022) (“The default rule is that vacatur is the appropriate remedy” for unlawful agency action.); Franciscan All., Inc.

v. Becerra, 47 F.4th 368, 374-75 (5th Cir. 2022) (“Vacatur is the only

statutorily prescribed remedy for a successful APA challenge to a

regulation.”); accord United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1287 (D.C. Cir. 2019) (“The ordinary practice

is to vacate unlawful agency action.”).

32a

trict court for further consideration of the remedy, considering this Court’s holding on the merits.

Conclusion

ATF, in promulgating its Final Rule, attempted to

take on the mantle of Congress to “do something” with

respect to gun control.28 But it is not the province of an

executive agency to write laws for our nation. That vital

duty, for better or for worse, lies solely with the legislature. Only Congress may make the deliberate and reasoned decision to enact new or modified legislation regarding firearms based on the important policy concerns

put forth by ATF and the various amici here. But unless and until Congress so acts to expand or alter the language of the Gun Control Act, ATF must operate within

the statutory text’s existing limits. The Final Rule impermissibly exceeds those limits, such that ATF has essentially rewritten the law. This it cannot do, especially

where criminal liability can—and, according to the Government’s own assertions, will—be broadly imposed

without any Congressional input whatsoever.

agency cannot label conduct lawful one day and felonious

the next—yet that is exactly what ATF accomplishes

through its Final Rule. Accordingly, the judgment of

the district court is AFFIRMED to the extent it holds

unlawful the two challenged portions of the Final Rule,

and VACATED and REMANDED as to the remedy.

As Justice Thurgood Marshall once wisely advised: “History

teaches that grave threats to liberty often come in times of urgency,

when constitutional rights seem too extravagant to endure . . .

[W]hen we allow fundamental freedoms to be sacrificed in the name

of real or perceived exigency, we invariably come to regret it.”

Skinner v. Ry. Lab. Executives’ Ass’n, 489 U.S. 602, 635 (1989) (Marshall, J., dissenting).

33a

ANDREW S. OLDHAM, Circuit Judge, concurring:

I join my esteemed colleagues’ majority opinion without qualification. I write only to explore additional

problems with the Final Rule promulgated by the Bureau of Alcohol, Tobacco, Firearms and Explosives

(“ATF”). See Definition of “Frame or Receiver” and

Identification of Firearms, 87 Fed. Reg. 24652 (Apr. 26,

2022) (“Final Rule”). Part I provides additional background. Part II discusses ATF’s unlawful conflation of

two fundamentally different statutory regimes. Part

III addresses the weapon parts kit provision. And Part

IV considers the unfinished frame or receiver provision.

ATF’s overarching goal in the Final Rule is to replace

a clear, bright-line rule with a vague, indeterminate,

multi-factor balancing test. ATF’s rationale: The

new uncertainty will act like a Sword of Damocles hanging over the heads of American gun owners. Private

gunmaking is steeped in history and tradition, dating

back to long before the Founding. Millions of law-abiding Americans work on gun frames and receivers every

year. In those pursuits, law-abiding Americans (and

the law-abiding gun companies that serve them) rely on

longstanding regulatory certainty to avoid falling afoul

of federal gun laws. But if ATF can destroy that certainty, it hopes law-abiding Americans will abandon tradition rather than risk the ruinous felony prosecutions

that come with violating the new, nebulous, impossibleto-predict Final Rule.

OLD RULE (A.K.A. 80% RULE)

Let’s start with the Old Rule. Since 1968, Congress

has defined the word “firearm” to mean “any weapon

34a

(including a starter gun) which will or is designed to or

may readily be converted to expel a projectile by the action of an explosive [or] the frame or receiver of any such

weapon.”

18 U.S.C. § 921(a)(3)(A)-(B) (emphasis

added). What is a “frame or receiver”? ATF defined

that by regulation in 1968, too: The “frame or receiver”

of a firearm is “[t]hat part of a firearm which provides

housing for the hammer, bolt or breechblock, and firing

mechanism, and which is usually threaded at its forward

portion to receive the barrel.” 33 Fed. Reg. 18,555,

18,558 (Dec. 14, 1968) (to be codified at 26 C.F.R. pt.

178); see also 43 Fed. Reg. 13,531, 13,537 (Mar. 31, 1978)

(formerly codified at 27 C.F.R. § 478.11 (2020)). That

is clear: It tells law-abiding gun owners, hobbyists, and

gunsmiths when a piece of metal stops being a just a

piece of metal and starts being the “frame or receiver”

of a federally regulated firearm subject to federal gun

laws and felony penalties.

The Old Rule even came with numerical certainty.

In longstanding regulatory guidance, ATF took the position that a hunk of metal became a federally regulated

“frame or receiver” only after it was 80% complete:

“ATF has long held that items such as receiver blanks,

‘castings’ or ‘machined bodies’ in which the fire-control

cavity area is completely solid and un-machined have not

reached the ‘stage of manufacture’ which would result in

the classification of a firearm [under the 1968 Old

Rule].” ATF, Are 80% or “Unfinished” Receivers Illegal?, https://perma.cc/QX2X-8UHQ (last reviewed Apr.

6, 2020). The uninitiated might wonder what constitutes an unmachined receiver blank or solid fire-control

area. So ATF helpfully provided pictures. Here are

ATF’s Old Rule pictures for an AR-15’s frame or receiver:

35a

36a

Ibid. (annotations in original). This Old 80% Rule is

thus easy to understand, predict, and apply: the top

two silver receiver pictures are only 80% complete; they

are thus “unfinished”; and they do not constitute “firearms” under federal gun laws. Under the Old 80%

Rule, any law-abiding American consumer or manufacturer knew that as long as the fire-control area remained solid, the silver pieces of metal were just that—

metal. They could be bought and sold without concern

for the federal gun laws. 1

For decades, millions of Americans have lawfully

purchased pieces of metal like those silver ones and

worked on them in garages and workshops across the

country. Such homemade firearms have a rich history

and tradition, dating back to the Founding. See, e.g.,

Joseph G.S. Greenlee, The American Tradition of SelfMade Arms, 54 ST. MARY ’S L.J. 35, 45-71 (2023). So the

Old Rule allowed Americans to purchase the silver

pieces of metal, to machine the final 20% of the metal in

their homes or garages, and thus to make 100%-complete receivers. See ROA.228-44 (ATF’s pre-2022 Old

Rule classification letters on partially complete frames

and receivers). An enthusiast or amateur gunsmith

might mill the fire-control area with a drill press so the

receiver could hold a trigger assembly. And the enthuInsofar as the Old Rule applied to frames and receivers that

were, say, 81% complete, ATF regulated pieces of metal that were

both (1) frames and receivers and (2) things that were not yet frames

and receivers. As the majority opinion notes, see ante, at 15, it is

unclear how the GCA permits that. My point in this separate concurrence is that even if the GCA permits the Old 80% Rule, it cannot

permit ATF’s attempt to regulate any piece of metal that has been

machined beyond its “primordial” state. E.g., Final Rule, 87 Fed.

Reg. at 24678.

37a

siast or amateur gunsmith might drill three holes

through the receiver to hold the safety selector, trigger,

and hammer pins. And voila: the modern analogue to

the homemade rifle Daniel Boone’s father gave him

when he was 12. Greenlee, supra, at 69.

NEW RULE (A.K.A. FINAL RULE)

Congress has done nothing to change the statutory

definition of “firearm” or “frame or receiver” since

1968.2 And for 54 years, the regulatory text stayed the

same too. Then in 2022, without any direction or authorization from Congress, ATF changed everything:

•

ATF eliminated the 80% threshold for unfinished

“frames or receivers.” And it replaced that numerical certainty with “I-know-it-when-I-see-it”

subjectivity that is evocative of Justice Stewart’s

obscenity standard. See Jacobellis v. Ohio, 378

U.S. 184, 197 (1964) (Stewart, J., concurring).

Under the New Rule, a hunk of metal turns into

a federally regulated “frame or receiver” when

ATF thinks “it is clearly identifiable as an unfinished component part of a weapon.” Final Rule,

87 Fed. Reg. at 24728 (emphasis added).

Indeed, Congress has considered several bills to regulate socalled “ghost guns” and rejected them. See, e.g., Untraceable Firearms Act of 2021, S.1558, 117th Cong. (2021). No such bill has made

it past bicameralism and presentment. Thus, ATF and the Executive Branch sought to do through this Final Rule what they could not

do through the normal legislative process. Cf. Biden v. Nebraska,

143 S. Ct. 2355, 2373 (2023) (“The Secretary’s assertion of administrative authority has conveniently enabled him to enact a program

that Congress has chosen not to enact itself.” (internal quotation

and citation omitted)).

38a

•

ATF promulgated a non-exhaustive list of eight

factors that its Director may balance in considering whether a hunk of metal constitutes a partially complete or disassembled “frame or receiver”: “[T]he Director may consider any associated [1] templates, [2] jigs, [3] molds, [4] equipment, [5] tools, [6] instructions, [7] guides, or [8]

marketing materials that are sold, distributed, or

possessed with [or otherwise made available to

the purchaser or recipient of ] the item or kit.”

Id. at 24739. So the silver pieces of metal in the

pictures above are now federally controlled firearms, so long as they are sold with a jig, template,

or other item useful in finishing the receiver.

See ibid.

•

ATF promulgated a non-exhaustive list of eight

factors that its Director may balance in considering whether a hunk of metal can be “readily” converted to a “frame or receiver”: “(1) Time, i.e.,

how long it takes to finish the process; (2) Ease,

i.e., how difficult it is to do so; (3) Expertise, i.e.,

what knowledge and skills are required; (4)

Equipment, i.e., what tools are required; (5)

Parts availability, i.e., whether additional parts

are required, and how easily they can be obtained; (6) Expense, i.e., how much it costs; (7)

Scope, i.e., the extent to which the subject of the

process must be changed to finish it; and (8) Feasibility, i.e., whether the process would damage

or destroy the subject of the process, or cause it

to malfunction.” Id. at 24735.

•

And ATF changed the statutory definition of firearm to include “weapon parts kit[s].” Id. at

39a

24727-28. Such a “kit” consists of gun parts.

And ATF concedes that none of those parts is a

“firearm” under federal law. Still, ATF says

that a collection of parts is “firearm” if ATF, in

its wisdom and its subjective judgment, determines the parts look like the building blocks of a

firearm. Id. at 24689 (weapon parts kits are firearms if they are “clearly identifiable” as such).

Why did ATF promulgate a 98-page Final Rule—replete with multiple, non-exhaustive, eight-factor balancing tests and subjective standards evocative of Jacobellis—to replace the Old 80% Rule? ATF says its concern is so-called “ghost guns”: Frames and receivers

finished in private homes and garages do not have serial

numbers, and that makes it difficult for the Government

to track the homemade guns. Id. at 24652. (Hence

the Government’s “ghostly” moniker.) But if that was

all ATF cared about, it would just require serialization

of all frames and receivers—even those (like the silver

pieces of metal pictured above) that are only 80% complete. See 27 C.F.R. § 479.102 (requiring “a manufacturer” to serialize frames and receivers). ATF expressly did not do that, however; it instead expressly exempted private individuals from serializing their frames

and receivers. See Final Rule, 87 Fed. Reg. at 24653.

That is the precise opposite of what ATF would do if it

cared about tracing so-called “ghost guns.”

ATF instead chose to change the meaning of “firearm” so that it can apply to any piece of metal that has

been machined beyond its “primordial” state. Why?

ATF wants the “flexibility” to regulate unformed, unfinished pieces of metal when it, in its judgment, thinks

regulation is “necessary.” Id. at 24669. And ATF

40a

wants to “deter” people from relying on “a minimum

percentage of completeness (e.g., ‘80.1%’).” Id. at

24686. So it deleted the Old 80% Rule and replaced it

with new, indeterminate, multi-factor-balancing, and

eye-of-the-beholder standards. But it never pointed to

a single homemade gun that escaped regulation under

the Old Rule but would stay out of criminals’ hands under the New Rule.

II.

ATF’s foundational legal error is that it conflated two

very different statutes: the Gun Control Act of 1968

and the National Firearms Act of 1934. Those two statutes give ATF very different powers to regulate very

different types of weapons. To take just one very obvious example, when it comes to things like machine guns,

the National Firearms Act empowers ATF to maintain

a central registry called “the National Firearms Registration and Transfer Record.” 26 U.S.C. § 5841(a).

That database requires registration of every machine

gun; registration of every person who ever possesses it;

and strict limitations on every machine gun transfer (including a $200 tax on each sale and six-to-twelve month

waiting periods). None of these restrictions apply to

transactions involving ordinary firearms under the Gun

Control Act. And ATF promulgated the Final Rule under the Gun Control Act to apply to all firearms—not

just machine guns. Still, ATF mushed the statutes together and then liberally borrowed terms from both.

I first (A) explain the statutory conflation. Then I

(B) explain how ATF exploited that conflation to generate its multi-factor balancing tests.

41a

First, the statutory conflation. As the majority

notes, see ante n.16, ATF’s Final Rule repeatedly uses

the word “restored”:

Firearm. . . . The term shall include a weapon

parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted

to expel a projectile by the action of an explosive.

. . .

Partially complete, disassembled, or nonfunctional

frame or receiver. The terms “frame” and “receiver” shall include a partially complete, disassembled, or nonfunctional frame or receiver, including a

frame or receiver parts kit, that is designed to or may

readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver.

Final Rule, 87 Fed. Reg. at 24735, 24739 (emphasis

added).

This is unlawful because (1) ATF took the word “restored” from a different statute with a very different

scope and meaning. And (2) ATF cannot defend that

choice by pretending that the relevant statute fairly includes the word “restored.”

First, the two very different gun control statutes.

The first is the Gun Control Act of 1968, Pub. L. No.

90-618, 82 Stat. 1213 (“GCA”). The GCA was Congress’s response to the assassination of President Kennedy. According to the FBI, Lee Harvey Oswald used

the pseudonym “A. Hidell” to purchase a 6.5x52mm Carcano bolt-action hunting rifle from a mail-order adver-

42a

tisement in the back of American Rifleman magazine.

VINCENT BUGLIOSI, RECLAIMING HISTORY: THE ASSASSINATION OF JOHN F. K ENNEDY 200 (2007).

“A.

Hidell” mailed a money order for $21.45 ($19.95 for the

rifle and $1.50 for postage) and later picked up the rifle

from P.O. Box 2915 in Dallas, Texas. Ibid. Congress’s

response in the GCA was, inter alia, to prohibit mailorder weapons and to impose identification requirements that prohibit pseudonymous purchases. See Interstate Shipment of Firearms: Hearings on S. 1975

and S. 2345 Before S. Comm. on Com., 88th Cong.

(1964). The GCA regulates interstate transactions involving any firearm—including common bolt-action

hunting rifles.3

By contrast, the National Firearms Act of 1934, Pub.

L. No. 73-474, 48 Stat. 1236 (“NFA”) applies to a much

narrower class of firearms and firearm accessories—

such as fully automatic machine guns. 4 The NFA was

Congress’s response to gangster shootouts like the St.

Valentine’s Day Massacre of 1929. On that bloody Valentine’s Day, seven members of Bugs Moran’s gang

Throughout this opinion, I use “GCA” and “ordinary” to refer to

the firearms captured in 18 U.S.C. § 921(a)(3)(A)-(B). That includes the types of firearms Americans can buy at sporting-goods

and big-box stores, like semiautomatic pistols, revolvers, hunting rifles, and shotguns.

Throughout this opinion, I use “NFA items” to refer to the items

captured in 26 U.S.C. § 5845. These include suppressors, id.

§ 5845(a)(7), and destructive devices, id. § 5845(f ). Both are NFA

items even though they also appear in 18 U.S.C. § 921(a)(3)(C)-(D).

For the sake of simplicity, I use “machine guns” and “NFA items”

interchangeably—both because machine guns are prototypical NFA

items and because ATF’s Final Rule relies extensively on court precedents involving machine guns. See infra Part II.B.2.

43a

were gunned down in Chicago. The four shooters used

at least two Thompson submachine guns. Congress’s

response in the NFA was, inter alia, to impose a 100%

tax on machine gun purchases in an effort to reduce or

eliminate them. See National Firearms Act: Hearings Before the H. Comm. on Ways & Means on H.R.

9066, 73d Cong. 12 (1934). That explains why the NFA

appears in Title 26 (the Internal Revenue Code), as opposed to alongside the GCA in Title 18. Today, the

NFA applies only to weapons like machine guns, shortbarreled shotguns and rifles, and suppressors. And it

imposes numerous restrictions (including transfer taxes

and registration requirements) that apply only to NFA

weapons and not to non-NFA weapons like common

bolt-action hunting rifles. See, e.g., 26 U.S.C. § 5821

(taxes on NFA weapons).

ATF promulgated the Final Rule under the GCA—

not the NFA. See, e.g., Notice of Proposed Rulemaking, Definition of “Frame or Receiver” and Identification of Firearms, 86 Fed. Reg. 27720, 27726-27 (May 21,

2021) (“NPRM”) (citing as statutory basis the terms

“firearm,” “frame,” and “receiver” in GCA); Final Rule,

87 Fed. Reg. at 24734 (same). That makes some sense

because ATF wants the Final Rule to apply to every firearm, every frame, and every receiver (the GCA’s

scope)—not just to NFA items like machine guns.

The problem is that Congress chose to use the word

“restored” only in the NFA and not in the GCA. “That

is significant because Congress generally acts intentionally when it uses particular language in one section of a

statute but omits it in another.” Dep’t of Homeland

Sec. v. MacLean, 574 U.S. 383, 391 (2015); see also Russello v. United States, 464 U.S. 16, 23 (1983). When

44a

Congress defined NFA weapons like machine guns, it

chose to reach weapons that could be “restored” to be

machine guns. See, e.g., 26 U.S.C. § 5845(b) (“The term

‘machinegun’ means any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.”) (emphasis

added). But when Congress defined ordinary GCA

“firearms,” it chose not to reach weapons that could be

“restored” to function as firearms. Rather, the GCA

defined “firearm” in relevant part to mean “any weapon

(including a starter gun) which will or is designed to or

may readily be converted to expel a projectile by the action of an explosive.” 18 U.S.C. § 921(a)(3)(A) (emphasis added). We must interpret the two statutes to have

different scopes consistent with their different texts. 5

At oral argument, ATF’s counsel conceded the

agency took the word “restored” from the NFA and inserted it into a GCA regulation. See Oral Arg. at 0:308:00. Counsel defended conflating the two statutes by

arguing that “restored” (used only in the NFA) is close

enough to the text used in the GCA (“converted”) that

the Government could mush together the two statutes

The textual distinction is particularly powerful because Congress knew how to use the word “converted” in the NFA when it

wanted to. For example, the GCA added the definition of “destructive device” to the NFA in 1968. And when it did so, Congress used

“converted” in the definition of the NFA item “destructive device.”

18 U.S.C. § 921(a)(4)(B). That further underscores the textual

anomaly of the word “restored”—which appears only in the NFA

provisions governing things like machine guns, short-barreled rifles,

and short-barreled shotguns. 26 U.S.C. § 5845(b)-(e).

45a

and promulgate a Final Rule that uses both terms interchangeably.

This argument fails for two reasons. First, the ordinary meaning of “converted” is not the same as “restored.” To “convert” means to change something from

one form to a new, different form: “To alter, as a vessel

or firearm, so as to change from one class or type to another.” Convert, WEBSTER’S NEW INTERNATIONAL

DICTIONARY 583 (2d ed. 1934; 1950) (“WEBSTER’S SECOND ”) (emphasis added). To “restore,” by contrast,

means to bring something back to its original form:

“To bring back to, or put back into, the former or original state; to repair; to renew; specif. [] To rebuild; reconstruct.” Restore, WEBSTER’S SECOND at 2125.

Thus, a firearm A can be converted to a new, different

B. Or an old, broken firearm A can be restored to new,

functional A. But it makes no sense to say A is restored

to B, nor does it make sense to say A is converted to A.6

For example, a semi-automatic rifle like an AR-15

can be “converted” to function as a fully automatic machine gun. Such conversions can be accomplished by

filing away internal parts of a semi-automatic firearm.

See Staples v. United States, 511 U.S. 600, 603 (1994).

Or by replacing them. See Roe v. Dettelbach, 59 F.4th

255, 257 (7th Cir. 2023). But either way, the firearm is

“converted” from one thing (A, a semi-automatic

weapon) into a different class or type of firearm (B, a

Note that this critique of “restored” also applies to the Final

Rule’s similarly inappropriate uses of the words “completed” and

“assembled.” See Final Rule, 87 Fed. Reg. at 24735, 24739. Neither

word appears in the pertinent text of the GCA. See 28 U.S.C.

§ 921(a)(3). And both words have definitions that diverge from that

of the relevant word in § 921(a)(3), “converted.”

46a

fully automatic weapon). And either way, the AR-15 is

not “restored” into a machine gun because its original

state (semi-automatic) was not an old version of the renewed one (fully automatic). Cf. United States v. TRW

Rifle 7.62x51mm Caliber, One Model 14 Serial 593006,

447 F.3d 686, 691 (9th Cir. 2006) (“The United States argues, and we agree, that the ‘former or original state’ of

the rifle refers to the essential definition of a machinegun, that is whether it was ever capable of firing

automatically more than one shot, without manual reloading, by a single function of the trigger.”).

Consider another example. If a lifelong Anglican

decides to become Roman Catholic, a “reasonable person, conversant with the relevant social and linguistic

conventions” might say that she “converted” from A

(Anglicanism) to B (Catholicism). Cf. John F. Manning,

The Absurdity Doctrine, 116 HARV. L. REV. 2387, 239293 (2003). But no one would say the lifelong Anglican

“restored” her new Catholic faith. 7 In faith as in firearms, the words “converted” and “restored” are not interchangeable.

Thus, in the context of ordinary GCA firearms, like

bolt-action hunting rifles, Congress used the word “converted.” In the context of NFA machine guns, ConSome may dismiss such “homey examples” on the grounds that

ordinary meaning is a legal concept without concern for everyday

conversation. See, e.g., Tara Leigh Grove, Foreword: Testing Textualism’s ‘Ordinary Meaning’, 90 GEO. WASH. L. REV. 1053, 108283 (2022); Tara Leigh Grove, Is Textualism at War with Statutory

Precedent?, 102 TEX. L. REV. (forthcoming 2024). To the extent

that the critique has purchase as a theoretical matter, it is irrelevant

here. ATF has provided no argument that the analysis of ordinary

meaning as a legal concept changes the definition of commonplace

words like “converted” or “restored.”

47a

gress used the word “restored.” That means the GCA

covers firearms (B) and things (A) that can be readily

converted into firearms (B). Whereas the NFA concerns

firearms that start as machine guns (A) and can be restored to functioning machine guns (A).

All of this matters because the central dispute in this

case is how far back ATF can reach to regulate the A

that can be converted to B. Everyone agrees ATF can

regulate the gun itself, B. But how far back in the manufacturing process of the gun B can ATF reach to regulate things A that can be theoretically converted into

guns? ATF concedes that it cannot reach all the way

back to “unformed blocks of metal” or metal in its “primoradial state.” Final Rule, 87 Fed. Reg. at 24663. So

primordial ooze is not A. But anything more refined

than that is subject to the Final Rule’s multi-factor balancing tests and eye-of-the-beholder standards.

The GCA, however, says nothing about primordial

ooze, unformed blocks of metal, or any of ATF’s various

indeterminate standards for A. Rather, the GCA says

ATF can regulate A as a “firearm” only if A can “readily

be converted” into a firearm B. 18 U.S.C. § 921(a)(3)(A).

That is, a firearm is anything (B) that expels a projectile

with an explosive, or anything (A) that can be readily

converted to a thing (B) that fires a projectile with an

explosive.

Consider (1) how courts distinguish “readily be converted” from “readily restored.” Then consider (2) how

ATF ignores that distinction. The result is (3) a fatally

vague Final Rule.

48a

Let’s start with ordinary GCA firearms. When it

comes to ordinary firearms, like bolt-action hunting rifles, courts have interpreted “readily be converted” to

mean minimal effort—something like “three to twelve

minutes” with a drill and no special skills. See, e.g.,

United States v. 16,179 Molso Italian .22 Caliber Winler

Derringer Convertible Starter Guns, 443 F.2d 463, 465

(2d Cir. 1971). The GCA standard arises with some frequency when criminal defendants are charged with possessing gun parts or inoperable guns that nonetheless

count as firearms because they can “readily be converted” to fire. See ibid. For example, this disassembled Tec-9 handgun is still a “firearm”:

49a

United States v. Morales, 280 F. Supp. 2d 262, 277

(S.D.N.Y. 2003). That is because it might be reassembled “in about five seconds.” Id. at 272. Similarly, an

inoperable shotgun can “readily be converted” to GCA

firearm if it only requires “about fifteen to twenty

minutes” of manipulation. United States v. Reed, 114

F.3d 1053, 1056 (10th Cir. 1997). And a starter gun—

which is expressly mentioned in the text of § 921(a)(3)—

is a GCA firearm because it can be converted to expel

projectiles using basic tools, without any specialized

knowledge, “in a matter of minutes” and “easily [in] less

than an hour.” United States v. Mullins, 446 F.3d 750,

755-56 (8th Cir. 2006).

NFA weapons like machine guns are a different

story. Recall that machine guns face an entirely different and more onerous regulatory regime—including

registration requirements for every machine gun, registration requirements for every seller and purchaser,

$200 taxes for every transfer, and multi-month waiting

periods. Owing in part to the significantly heavier burdens that attach to machine gun ownership, courts have

interpreted the NFA’s text (“readily restored”) to reach

much further than the GCA’s text (“readily be converted”). While the GCA only reaches conversions that

can be accomplished in minutes using minimal effort,

the NFA reaches restorations that can be accomplished

in hours using maximal effort.

Take, for example, United States v. Smith, 477 F.2d

399 (8th Cir. 1973) (per curiam). That case concerned

possession of an unregistered Thompson submachine

gun. The gun had been permanently decommissioned:

Its barrel had been filled with metal. Id. at 400. And

the gun was welded in two places to make it impossible

50a

to fire: “The barrel of the gun was welded closed at the

breech and was also welded to the receiver on the outside under the handguard.” Ibid. Nonetheless, the

Government proffered an expert to prove that a permanently decommissioned weapon could be “readily restored”:

[The Government’s expert] testified that there are

two possible ways by which the firearm could be

made to function as such. The most feasible method

would be to cut the barrel off, drill a hole in the forward end of the receiver and then rethread the hole

so that the same or another barrel could be inserted.

To do so would take about an 8-hour working day in

a properly equipped machine shop. Another method

which would be more difficult because of the possibility of bending or breaking the barrel would be to drill

the weld out of the breech of the barrel.

Ibid. The court held that was sufficient to support

Smith’s NFA conviction because eight hours in a properly equipped shop with a sophisticated understanding

of metallurgy constituted a ready restoration. See id.

at 400-01. Other courts have interpreted the NFA to

reach a machine gun that was permanently decommissioned by the military “by torch-cutting its receiver—

the frame portion of the rifle that contains the firing

mechanisms, located between the barrel and the stock—

into two pieces.” TRW Rifle, 447 F.3d at 688. The

court reasoned the machine gun could be “readily restored” by welding the two pieces back together and

then using “a hand grinder (or dremel tool), a splitting

disk, a drill press, and hand files” to restore its firing

mechanism. Id. at 692. The court credited expert testimony that someone with the proper tools and know-

51a

ledge could do that in two hours. Ibid. A similar case

estimated that the same restoration could be done in six

hours. See United States v. One TRW, Model M14, 7.62

Caliber Rifle, 441 F.3d 416, 422-24 (6th Cir. 2006).

* * *

These cases illustrate what should be obvious to any

law-abiding American: Federal law treats NFA machine guns differently from ordinary GCA firearms like

bolt-action rifles.

The distinction was not obvious to ATF, however.

In Footnote 43 of the Final Rule, ATF says “readily”

means either “readily be converted” under the GCA or

“readily restored” under the NFA—terms ATF understands as interchangeable in a string cite of cases arising under both statutes. See Final Rule, 87 Fed. Reg.

at 24661 n.43. ATF points to Footnote 43 and its mishmash of GCA-NFA precedents over and over throughout the Final Rule. See id. at 24684 n.96, 24685 n.103,

24698 n.123, 24700 n.125 (pointing to footnote 43). As

ATF explains, “this rule is guided by . . . relevant

case law.” Id. at 24698.

The problem is that NFA precedents are not “relevant case law.” Ibid. As to ordinary GCA firearms,

ATF is limited to regulating things that can “readily be

converted” into firearms. 18 U.S.C. § 921(a)(3). That

means things that are close enough to firearms that they

can be finished “in about five seconds,” Morales, 280

F. Supp. 2d. at 272, in “about fifteen to twenty minutes,”

Reed, 114 F.3d at 1056, or in “easily less than an hour,”

Mullins, 446 F.3d at 755. ATF cannot avail itself of the

NFA’s much broader for machine guns. Yet in inter-

52a

preting the GCA’s ordinary-gun standard, ATF expressly relied on cases like Smith and its eight-hoursin-a-professional-shop-with-expertise standard.

See

Final Rule, 87 Fed. Reg. at 24662 n.43; see also id. at

24678-79 (explicitly linking the Final Rule’s understanding of “readily” to the machine-gun-restoration standard under the NFA).

The practical implications of ATF’s position are staggering. According to ATF, the word “readily” means

the same thing in the GCA, the NFA, and the Final Rule.

If that were true, then millions and millions of Americans would be felons-in-waiting. That is because the

AR-15 is the most popular rifle in America; almost 20

million of them were in American homes as of 2020. See

NSSF Releases Most Recent Firearm Production Figures, https://perma.cc/TBS8-JSSH (Nov. 16, 2020).

But every single AR-15 can be converted to a machine

gun using cheap, flimsy pieces of metal—including coat

hangers. See Mike Searson, Turning Your AR-15 into

an M-16, RECOIL MAGAZINE, https://perma.cc/L5G9E9BJ (June 5, 2019). That is obviously far easier than

the 8-hour-in-a-professional-shop standard announced

in Smith to govern “ready restoration” under the NFA.

For decades, America’s AR-15 owners have relied on

the fact that AR-15s are not subject to the NFA’s readyrestoration standard. Recall the NFA applies to machine guns B and things that can be “readily restored”

to function as machine guns B. See supra Part II.A.2.

By contrast, an AR-15 was never a machine gun B and

hence cannot be “readily restored” to a machine gun B.

Of course, an AR-15 A could be “converted” to a machine

gun B. But unless that conversion could be done in a

few seconds or minutes, see Morales, 280 F. Supp. 2d. at

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272; Reed, 114 F.3d at 1056, AR-15 owners had no reason

to worry that their rifles were capable of ready conversion into unregistered machine guns. The Final Rule

eliminates that certainty, says “readily” means the same

thing in the GCA and the NFA, and says Americans violate federal gun laws if they could in theory manufacture a prohibited weapon in eight hours in a professional

shop with metallurgical expertise. See Smith, 477 F.2d

at 400; Final Rule, 87 Fed. Reg. at 24661 n.43 (relying

on Smith).

After conflating the GCA and the NFA, the Final

Rule includes a list of eight non-exhaustive factors to

guide ATF’s understanding of “readily”:

(1) Time, i.e., how long it takes to finish the process;

(2) Ease, i.e., how difficult it is to do so; (3) Expertise,

i.e., what knowledge and skills are required; (4)

Equipment, i.e., what tools are required; (5) Parts

availability, i.e., whether additional parts are required, and how easily they can be obtained; (6) Expense, i.e., how much it costs; (7) Scope, i.e., the extent to which the subject of the process must be

changed to finish it; and (8) Feasibility, i.e., whether

the process would damage or destroy the subject of

the process, or cause it to malfunction.

Final Rule, 87 Fed. Reg. at 24735. The Final Rule emphasizes this list is “nonexclusive.” Id. at 24698. And

ATF explicitly disclaimed the need to explain how any

of these factors would balance in practice: “It is not the

purpose of the rule to provide guidance so that persons

may structure transactions to avoid the requirements of

the law.” Id. at 24692.

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This approach violates the Fifth Amendment and its

guarantee of fair notice. See FCC v. Fox Television

Stations, 567 U.S. 239, 253 (2012) (“A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is

forbidden or required.”). The “Government violates

this guarantee by taking away someone’s life, liberty, or

property under a criminal law so vague that it fails to

give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Johnson v. United States, 576 U.S. 591,

595 (2015). Even if “some conduct [] clearly falls within

the provision’s grasp,” a law can still be vulnerable to a

vagueness challenge. Id. at 602. With its nonexclusive list of eight factors and lack of concrete examples,

the Final Rule produces “more unpredictability and arbitrariness than the Due Process Clause tolerates.”

See Sessions v. Dimaya, 138 S. Ct. 1204, 1215 (2018) (citation omitted).

ATF dismisses the problem by pointing to courts that

have rejected vagueness challenges to the term “readily.” Final Rule, 87 Fed. Reg. at 24700, n.126 (pointing

to cases listed in 87 Fed. Reg. at 24679 n.79). But that

argument fails for two reasons. Nearly all of ATF’s

cited precedents involve the NFA, not the GCA. See id.

at 24679 n.79 (also citing cases on state laws and the

ADA). And as discussed above, courts have interpreted the NFA more expansively than the GCA. But

more relevantly, the cited precedents dealt with the

word “readily” as it exists in statutory text. They did

not consider ATF’s nonexclusive eight-factor balancing

test with no concrete examples. It is the text of the Fi-

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nal Rule, not the text of the statute, which falls short of

the Due Process Clause. 8

ATF also argues that it could provide sufficient guidance in individual cases: Where “persons remain uncertain” as to the exact scope of the Rule, “they may submit a voluntary request to ATF for a classification.”

Final Rule, 87 Fed. Reg. at 24692. But this does nothing to cure the Final Rule’s vagueness. As important

as the Fifth Amendment’s guarantee of fair notice to individuals is the Amendment’s prohibition against “arbitrary enforcement” by government officials. See Johnson, 576 U.S. at 595 (citing Kolender v. Lawson, 461 U.S.

352, 357-358 (1983)). It is thus of no use for ATF to say

that it will tell ordinary people what they can do. The

law exists to tell both the people and government officials what they can do. See Sessions, 138 S. Ct. at 1228

(Gorsuch J., concurring in part and concurring in the

judgment) (“Vague laws [] threaten to transfer legislative power to police and prosecutors, leaving to them the

job of shaping a vague statute’s contours through their

enforcement decisions.”) (citing Grayned v. City of

Rockford, 408 U.S. 104, 108-09 (1972)). The nonexclu-

ATF essentially responded with variation of the motte-and-bailey argument. See Scott Alexander, All in All, Another Brick in

the Motte, SLATE STAR CODEX (Nov. 3, 2014), https://perma.cc/PA2WFKR9. The Final Rule is clearly more expansive than the text of

§ 921(a)(3). When pressed on due process concerns with the Final

Rule, ATF retreated to the text of § 921(a)(3) and argued that courts

have rejected such attacks on the GCA. But the Final Rule is not

the GCA. ATF may either have the text of the GCA, as upheld

against due process challenges by various courts, or the more expansive Final Rule, which has never encountered such a challenge. But

it may not mix and match legal texts with defenses.

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sive eight-factor balancing test provides no guidance to

anyone and hence is void for vagueness.

III.

Next consider the Final Rule’s approach to weapon

parts kits. The Final Rule expands the GCA’s definition of “firearm” to include weapon parts kits:

Firearm . . . . The term shall include a weapon

parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted

to expel a projectile by the action of an explosive.

Final Rule, 87 Fed. Reg. at 24735. But this expansion

cannot stand for two reasons.

First, as the majority cogently explains, see ante at

19, Congress knows how to regulate gun parts, either

individually or as a collection. The GCA’s predecessor,

the Federal Firearms Act, defined “firearm” to mean

“any weapon . . . or any part or parts of such

weapon.” Pub. L. No. 75-782, 52 Stat. 1250, 1250 (1938)

(repealed 1968) (emphasis added). But Congress removed this language when it enacted the GCA. Moreover, Congress regulates parts elsewhere in the GCA (as

well as in the NFA). See, e.g., 18 U.S.C. § 921(a)(4)(C)

(defining “destructive device” as, inter alia, “any combination of parts. . . . ”). The omission of any reference to “parts” in § 921(a)(3) indicates that Congress did

not sweep “parts” into the GCA’s definition of firearm.

Second, the structure of § 921(a)(3) presumes that all

covered firearms have either a frame or a receiver.

Therefore, a weapon parts kit that does not include a

frame or receiver cannot be regulated under § 921(a)(3).

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Start with the statutory text. Section 921(a)(3) defines the term “firearm” in four sub-sections: (A), (B),

(C), and (D). Consider only (A) and (B). Subsection

(A) defines “firearm” to include “any weapon (including

a starter gun) which will or is designed to or may readily

be converted to expel a projectile by the action of an explosive.” 18 U.S.C. § 921(a)(3)(A). Subsection (B) defines “firearm” to include “the frame of receiver of any

such weapon.” Id. § 921(a)(3)(B) (emphasis added).

With its placement immediately following (A), we can

easily understand (B)’s “any such weapon” language to

incorporate the definition of “weapon” in (A). Thus,

Subsection (B) defines “firearm” to include “the frame

of receiver of any such weapon (including a starter gun)

which will or is designed to or may readily be converted

to expel a projectile by the action of an explosive.” Or

put another way, § 921(a)(3) defines “firearms” to include, inter alia, certain weapons (A) and the frame or

receiver of said weapons (B). Section 921(a)(3) does not

contemplate a weapon covered by (A) that does not have

a frame or receiver covered by (B).

Contrast the statute with two hypothetical weapon

parts kits covered by the Final Rule. The first kit contains a frame as defined by § 921(a)(3)(B). That means

that the kit contains a firearm under § 921(a)(3). The

frame (separate and apart from anything else in the kit)

triggers the GCA and its various requirements. See,

e.g., 18 U.S.C. § 923(i) (“Licensed importers and licensed

manufacturers shall identify by means of a serial number engraved or cast on the receiver or frame of the

weapon, in such manner as the Attorney General shall

by regulations prescribe, each firearm imported or manufactured by such importer or manufacturer.”). In this

hypothetical, the frame is doing all the work—it is suffi-

58a

cient to trigger the GCA, so it does not matter what else

is included in the frame-containing kit.

Now consider a different kit covered by the Final

Rule: This second kit contains no frame or receiver as

defined by § 921(a)(3)(B). See Final Rule, 87 Fed. Reg.

at 24685 (“The Department disagrees with the comment

that weapon parts kits must contain all component parts

of the weapon to be ‘readily’ converted to expel a projectile.”). This kit is incomplete because it does not contain a frame or receiver—and hence contains nothing

that triggers § 921(a)(3)’s text. It beggars belief to suggest that such an incomplete parts kit is a weapon in any

sense of the word. An incomplete weapon parts kit will

never turn itself into a functioning weapon of any sort.

Any argument to the contrary is “[p]ure applesauce.”

King v. Burwell, 576 U.S. 473, 507 (2015) (Scalia, J., dissenting).

ATF’s only response is to say that it’ll deem incomplete kits as “firearms” based on “a case-by-case evaluation of each kit.” Final Rule, 87 Fed. Reg. at 24685; cf.

Jacobellis, 378 U.S. at 197 (Stewart, J., concurring).

How is any American supposed to know when a collection of gun parts meets that standard?

In sum, § 921(a)(3) contemplates that a covered

“weapon” (A) has a “frame or receiver” (B). Insofar as

the Final Rule seeks to regulate weapons that do not,

the rule is unlawful.

IV.

Finally, consider the Final Rule’s treatment of unfinished and incomplete frames and receivers. This is

perhaps ATF’s most aggressive attempt to bootstrap

hunks of metal and plastic into the GCA’s definition of a

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“firearm.” As explained in the preceding sections of

this opinion, the GCA’s definition of a “firearm” includes

(1) functioning guns, (2) weapons that are “designed” to

be functioning guns, (3) weapons that can “readily be

converted” to functioning guns, and (4) the “frame or receiver of any such weapon.” 18 U.S.C. § 921(a)(3)(A)(B). Thus, if a felon possesses a functioning handgun,

that obviously violates the GCA. If the same felon possesses a non-functioning handgun, that still might violate the GCA if the gun was “designed” to be a functioning gun. And if the same felon possesses a fieldstripped handgun, 9 that violates the GCA in two separate ways: the gun can be reassembled (and hence

“readily be converted” to a functioning gun), and the

frame or receiver of the field-stripped weapon is a “firearm” under § 921(a)(3)(B) even without reassembly.

But that statutory definition is not capacious enough

for ATF. In the Final Rule, ATF asserts that anything

beyond primordial ooze, liquid polymer, and wholly unformed raw metal can constitute a firearm. Here’s how

ATF explains the bootstrapping:

“receiver” shall include a partially complete, disassembled, or nonfunctional frame or receiver, includField stripping a firearm involves disassembling it without any

special tools for routine cleaning and maintenance. See, e.g., Bob

Boyd, DIY Guide: Field-Stripping a Glock, SHOOTING ILLUSTRATED (Dec. 17, 2019), https://perma.cc/A7CA-YVKC; cf. United

States v. Spencer, 439 F.3d 905, 911 (8th Cir. 2006) (noting a “field

stripped” machine gun was disassembled “into approximately ten to

fifteen different parts” and “could be reassembled in about five or

ten minutes”) (quotation omitted).

60a

ing a frame or receiver parts kit, that is designed to

or may readily be completed, assembled, restored, or

otherwise converted to function as a frame or receiver, i.e., to house or provide a structure for the primary energized component of a handgun, breech

blocking or sealing component of a projectile weapon

other than a handgun, or internal sound reduction

component of a firearm muffler or firearm silencer,

as the case may be. The terms shall not include a

forging, casting, printing, extrusion, unmachined

body, or similar article that has not yet reached a

stage of manufacture where it is clearly identifiable

as an unfinished component part of a weapon (e.g.,

unformed block of metal, liquid polymer, or other raw

material).

Final Rule, 87 Fed. Reg. at 24739. But this expansion

cannot stand, because (A) a frame or receiver parts kit

is not a frame or receiver, (B) the Final Rule’s examples

defining “frame or receiver” are nonsensical, and (C) the

Final Rule fails to sufficiently engage with then-contemporaneous definitions of “frame” or “receiver.”

To begin, a frame or receiver parts kit is not a frame

or receiver within the meaning of § 921(a)(3)(B).

Seven years before the GCA was passed, WEBSTER’S

THIRD defined frame as “the basic unit of a handgun

which serves as a mounting for the barrel and operating

parts of the arm,” WEBSTER’S THIRD INTERNATIONAL

DICTIONARY 902 (1961), and receiver as “the metal

frame in which the action of a firearm is fitted and which

the breech end of the barrel is attached.” WEBSTER’S

THIRD INTERNATIONAL DICTIONARY 1894 (1961).

61a

Now, the Final Rule attempts to expand those definitions, so that “frame” includes a “frame parts kit” and

“receiver” includes a “receiver parts kit.” Final Rule,

87 Fed. Reg. at 24739.

But ATF cannot simply add the phrase “parts kit”

and regulate as if the frame/receiver parts are the frames/

receivers themselves. A frame parts kit does not serve

as “the basic unit of a handgun which serves as a mounting for the barrel”; it is a collection of parts that could in

theory be assembled into a frame. A receiver parts kit

is not a “metal frame”; it is a collection of parts that can

be assembled into a metal frame. Thus, as a matter of

commonsense statutory interpretation, the parts kits

cannot qualify as frames or receivers under § 921(a)(3)(B).

See Pensacola Tel. Co. v. W. Union Tel. Co., 96 U.S. 1,

12 (1877) (presuming that words in statutory text are to

be given “their natural and ordinary signification.”).

ATF’s contrary view has no stopping point. For example, ATF says it will regulate “[a] complete frame or

receiver of a weapon that has been disassembled, damaged, split, or cut into pieces, but not destroyed in accordance with paragraph (e).” Final Rule, 87 Fed. Reg.

at 24739. Paragraph (e) in turn states that “[a]cceptable methods of destruction include completely melting,

crushing, or shredding the frame or receiver.” Ibid.

It is thus unclear if any gun part could ever fall outside

ATF’s definition of a “firearm.” On the front end, anything that has been refined beyond primordial ooze or

raw liquid polymer could one day be a firearm. And on

the back end, anything that has not been melted down

into primordial ooze or raw liquid polymer could one day

be restored to function as a firearm.

62a

This makes little sense. If I went to a junk yard and

picked up a piece of metal that used to be part of a truck,

no reasonable person would say I’m holding a truck because the metal has been formed beyond primordial ooze

and hence could be “completed, assembled, restored, or

otherwise converted to function” as either a truck or

truck frame. Likewise, if I cut a truck into 100 pieces,

scattered them on the ground, and then picked up some,

no reasonable person would say I’m holding a truck or

truck frame because the piece hadn’t been melted down

to its primordial state.

Next, the Final Rule says even unformed pieces of

metal or plastic can constitute frames and receivers

when they are found with instructions or jigs. In the

section on frames and receivers, the Final Rule gave

multiple examples of what is or is not a frame or receiver

within the meaning of § 921(a)(3)(B). See Final Rule,

87 Fed. Reg. at 24739. Examples 1 and 4 are key. Example 1 provides:

Frame or receiver: A frame or receiver parts kit

containing a partially complete or disassembled billet

or blank of a frame or receiver that is sold, distributed, or possessed with a compatible jig or template

is a frame or receiver, as a person with online instructions and common hand tools may readily complete

or assemble the frame or receiver parts to function

as a frame or receiver.

Ibid. In contrast, Example 4 provides:

Not a receiver: A billet or blank of an AR-15 variant

receiver without critical interior areas having been

indexed, machined, or formed that is not sold, distrib-

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uted, or possessed with instructions, jigs, templates,

equipment, or tools such that it may readily be completed is not a receiver.

Ibid. Note the difference between Example 1 (frame or

receiver) and Example 4 (not a frame or receiver): the

presence of a jig or other template. Thus, it is the jig

or template that triggers the GCA.

The implication of these examples is stark. On a

workbench you find two receiver blanks like the silver

ones pictured on page 3 of this opinion. Neither has

“critical interior areas” that are “indexed, machined, or

formed.” Ibid. But the right receiver blank is accompanied by a plastic jig. The left one is not. Under the

Final Rule, the right receiver blank is a frame or receiver, thus triggering a five-year prison sentence for

unlicensed manufacturing, importing, or dealing. See

18 U.S.C. §§ 922(a)(1)(B), 924 (a)(1). The left is just innocuous metal. How can this be? It seems that the

presence of the jig changes that receiver blank from

something that is not a firearm under § 921(a)(3) to

something that is. But § 921(a)(3)(B) only refers to

frames and receivers. Section 921(a)(3)(B) does not

mention jigs (or instructions, templates, equipment,

tools). How can the jig or template change the nature

of the receiver blank, such that the blank goes from unregulable to regulable under § 921(a)(3)(B)?

It obviously cannot. Consider the lumber in every

Home Depot across America. It obviously has been

machined beyond its primordial state; much of it has

been pressure treated, and all of it has been cut to specified lengths. The same is true about every screw, nut,

and bolt in the store; all of them have been machined

beyond their primordial states and cut to specified

64a

lengths. Now, if I walk into the Home Depot with instructions for making a chair, would any reasonable person say I possess a chair? Of course not.10

Let’s close with the ATF’s eye-of-the-beholder standard. As noted in previous sections of this opinion, dictionaries define frame and receiver—like the Old 80%

Rule—in terms of critical components, parts, and functions. For example, the frame or receiver must be able

to hold a trigger or the breechblock. Or it must have

certain parts milled, etc. In the place of these standards, ATF said metal or plastic is a frame or receiver if

it has “reached a stage of manufacture where it is

clearly identifiable as an unfinished component part of

a weapon.” Final Rule, 87 Fed. Reg. at 24739 (emphasis added). Or rather, once an ordinary person can look

at an object and say that it looks like an “unfinished component part of a weapon,” see ibid., it has become a

frame or receiver within the meaning of § 921(a)(3)(B).

How does this interact with ATF’s assertions throughout the Final Rule that it now regulates anything machined beyond primordial ooze and liquid polymer?

In its briefing before our court, ATF attempts to engage a related hypothetical by arguing that a person possesses a bicycle when

they buy a disassembled one. See Blue Br. 19. That is a red herring

for two reasons. First, a disassembled bicycle is no different than

a field-stripped gun; the former is a bicycle just as the latter is a gun.

See supra note 9 and accompanying text. Second, the Final Rule

reaches far, far beyond a bicycle “shipped with plastic guards attached to the gears or brakes that must be removed before it is

used.” Blue Br. 19. To make the analogue work, ATF would have

to contend that metal machined beyond its primordial state and rubber machined beyond liquid ooze constitutes a bicycle if possessed

with a template or instructions for manufacturing the bike.

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Unclear. What does “clearly identifiable” mean? Also

unclear. What objects do ordinary people (who might

associate “receivers” more readily with football than

guns) think are “clearly identifiable” as firearm components? Yet again, unclear. All we know is that ATF,

like Justice Stewart, is confident that it can identify a

GCA firearm when it sees one.

ATF’s problem is that § 921(a)(3)(B) covers objects

that are frames and receivers, not objects that look like

frames or receivers. 11 A recent Internet fad illustrates

the point. Consider the “cakes that look like food” Internet trend. See, e.g., Chelsweets, Cakes That Look

Like Food: 10 Amazing Cakes, YouTube (Jan. 22,

2018), https://perma.cc/UGH6-MXA2. One could make

a cake that looks like a hamburger, just as one could

make a cake that looks like a gun frame or receiver. One

is “clearly identifiable” as a hamburger, just as the other

is “clearly identifiable” as a gun part. But that does not

make the former taste like a Big Mac, just as it does not

make the latter covered by the GCA.

* * *

The Final Rule is limitless. It purports to regulate

any piece of metal or plastic that has been machined beyond its primordial state for fear that it might one day

It is no answer to say that the Old 80% Rule allowed the regulated community to escape regulation by making 79%-complete

frames and receivers. See Final Rule, 87 Fed. Reg. at 24686.

Such a response might be valid on public policy grounds, but as the

majority notes above, see ante at 24-26, public policy is the purview

of Congress, not the federal courts. See Lamie v. U.S. Tr., 540 U.S.

526, 542 (2004) (“If Congress enacted into law something different

from what it intended, then it should amend the statute to conform

it to its intent.”).

66a

be turned into a gun, a gun frame, or a gun receiver.

And it doesn’t stop regulating the metal or plastic until

it’s melted back down to ooze. The GCA allows none of

this. I concur in the majority’s opinion holding the Final Rule is unlawful. And I further concur that the

matter should be remanded to the district court to fashion an appropriate remedy for the plaintiffs.

67a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

Civil Action No. 4:22-cv-00691-O

JENNIFER VANDERSTOK, ET AL., PLAINTIFFS

BLACKHAWK MANUFACTURING GROUP INC., ET AL.,

INTERVENOR -PLAINTIFFS

MERRICK GARLAND, ET AL., DEFENDANTS

Filed:

June 30, 2023

MEMORANDUM OPINION & ORDER ON PARTIES’

CROSS-MOTIONS FOR SUMMARY JUDGMENT &

MOTIONS TO INTERVENE

Before the Court are Plaintiffs Jennifer VanDerStok,

Michael G. Andren, Tactical Machining, LLC, and Firearms Policy Coalition, Inc.’s (“Original Plaintiffs”) Motion for Summary Judgment (ECF No. 140), Brief (ECF

No. 141), and Appendix in support (ECF No. 142), filed

December 23, 2022; Intervenor-Plaintiff BlackHawk

Manufacturing Group Inc. d/b/a 80 Percent Arms’ Motion for Summary Judgment (ECF No. 144), Brief (ECF

68a

No. 145), and Appendix in support (ECF No. 146), filed

December 23, 2022; Intervenor-Plaintiffs Defense Distributed and The Second Amendment Foundation, Inc.’s

Motion for Summary Judgment (ECF No. 165) and

Brief in support (ECF No. 166), filed January 12, 2023;

Defendants’ Combined Opposition to Original Plaintiffs’

and Intervenor-Plaintiffs’ Motions for Summary Judgment and Cross-Motion for Summary Judgement (ECF

No. 180), Brief (ECF No. 181), and Appendix in Support

(ECF No. 182), filed February 13, 2023; Original Plaintiffs’ Reply Brief in Support of Their Motion for Summary Judgment and Response to Defendants’ CrossMotion for Summary Judgment (ECF No. 191), filed

March 6, 2023; Intervenor-Plaintiff BlackHawk Manufacturing Group Inc.’s Reply Brief and Opposition to

Defendants’ Cross-Motion for Summary Judgment

(ECF No. 192), filed March 6, 2023; Intervenor-Plaintiffs Defense Distributed and The Second Amendment

Foundation, Inc.’s Summary Judgment Response/Reply

Brief (ECF No. 193), filed March 6, 2023; and Defendants’ Reply Brief (ECF No. 204) and Appendix (ECF

No. 205) in support of their Motion for Summary Judgment, filed April 19, 2023. Also before the Court is the

Amici Curiae Brief of Gun Owners for Safety and Individual Co-Amici in Support of Defendants’ Opposition to

Original Plaintiffs’ and Intervenor-Plaintiffs’ Motions

for Summary Judgment and in Support of Defendants’

Cross-Motion for Summary Judgment (ECF No. 187),

filed February 23, 2023. Also before the Court are Defendants’ Supplemental Brief Regarding Rule 65(a)(2)

Consolidation and Plaintiffs’ Count I (ECF No. 132),

filed December 5, 2022; Original Plaintiffs’ Brief (ECF

No. 133), filed December 5, 2022; and Intervenor-Plaintiff

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BlackHawk Manufacturing Group Inc.’s Brief (ECF No.

134), filed December 5, 2022.

On January 18, 2023, the Court deferred ruling on

putative intervenors’ motions to intervene until summary judgment briefing concluded. See Order, ECF

No. 172. Now ripe for review are Not An LLC d/b/a

JSD Supply’s Motion to Intervene (ECF No. 149) and

Brief in support (ECF No. 150), filed January 5, 2023;

Defendants’ Opposition (ECF No. 207), filed April 27,

2023; Original Plaintiffs’ Opposition (ECF No. 212),

filed May 10, 2023; and JSD Supply’s Reply (ECF No.

213), filed May 11, 2023. Also before the Court are Polymer80’s Motion to Intervene (ECF No. 157), Brief

(ECF No. 158), and Appendix (ECF No. 159) in support;

filed January 9, 2023; Defendants’ Opposition (ECF No.

206), filed April 27, 2023; Original Plaintiffs’ Opposition

(ECF No. 212), filed May 10, 2023; and Polymer80’s Reply (ECF No. 214), filed May 11, 2023.

Also pending are Original Plaintiffs’ unopposed Motion for Leave to Provide Supplemental Authority to

Their Motion for Summary Judgment and Response to

Defendants’ Cross-Motion for Summary Judgment

(ECF No. 197), filed March 24, 2023, which the Court

GRANTS for good cause shown; and JSD Supply’s proposed Motion for Injunction (ECF No. 151) and Brief in

support (ECF No. 152), filed January 5, 2023, and Defendants’ Notice Regarding the Same (ECF No. 156),

filed January 9, 2023, which the Court DENIES as prematurely filed.

Having considered the briefing and applicable law,

the Court GRANTS JSD Supply’s and Polymer80’s motions to intervene on permissive grounds. For the reasons that follow, the Court GRANTS Plaintiffs’ and In-

70a

tervenors’ motions for summary judgment, DENIES Defendants’ cross-motion for summary judgment, and VACATES the Final Rule.

INTRODUCTION

This case presents the question of whether the federal government may lawfully regulate partially manufactured firearm components, related firearm products,

and other tools and materials in keeping with the Gun

Control Act of 1968. Because the Court concludes that

the government cannot regulate those items without violating federal law, the Court holds that the government’s

recently enacted Final Rule, Definition of “Frame or

Receiver” and Identification of Firearms, 87 Fed. Reg.

24,652 (codified at 27 C.F.R. pts. 447, 478, and 479), is

unlawful agency action taken in excess of the ATF’s

statutory jurisdiction. On this basis, the Court vacates

the Final Rule.

II. STATUTORY & REGULATORY BACKGROUND

In 1934, Congress enacted the National Firearms Act

(“NFA”) to authorize federal taxation and regulation of

certain firearms such as machineguns, short-barreled

shotguns, and short-barreled rifles. National Firearms Act of 1934, ch. 757, Pub. L. 73-474, 48 Stat. 1236,

1236. A few years later, Congress enacted the Federal

Firearms Act (“FFA”), which more broadly defined

“firearm” and thereby authorized federal regulation of

“any weapon . . . designed to expel a projectile or

projectiles by the action of an explosive . . . or any

part of such weapon.” Federal Firearms Act of 1938,

ch. 850, Pub. L. No. 75-785, 52 Stat. 1250, 1250 (1938)

(repealed 1968).

71a

Thirty years later, Congress enacted the Gun Control Act of 1968 (“GCA”), which superseded the FFA’s

regulation of firearms in interstate commerce. The

GCA requires manufacturers and dealers of firearms to

have a federal firearms license. 1 18 U.S.C. §§ 921,

et seq. Dealers must also conduct background checks

before transferring firearms to someone without a license, and they must keep records of firearm transfers.

Id. §§ 922(t), 923(g)(1)(A).

The GCA also redefines “firearm” more narrowly

than the earlier statute it superseded, defining the term

as: “(A) any weapon (including a starter gun) which

will or is designed to or may readily be converted to expel a projectile by the action of an explosive; (B) the

frame or receiver of any such weapon; (C) any firearm

muffler or firearm silencer; or (D) any destructive device.” Id. § 921(a)(3). But “[s]uch term does not include an antique firearm.” Id. Notably, the GCA departs from the FFA’s prior definition of “firearm” by restricting federal authority over “any part” of a firearm

to only the “frame or receiver” of such firearm.

Congress delegated authority to administer and enforce the GCA to the Attorney General by authorizing

him to “prescribe only such rules and regulations as are

necessary to carry out the provisions of this chapter.”

Id. § 926(a). The Attorney General, in turn, delegated

that authority to the Director of the Bureau of Alcohol,

Tobacco, Firearms and Explosives (“ATF”). 28 C.F.R.

§ 0.130(a). Those who violate the federal firearms laws

A manufacturer or dealer authorized to transfer firearms under

the Gun Control Act is known as a Federal Firearms Licensee

(“FFL”).

72a

are subject to potential fines and imprisonment.

U.S.C. § 924(a).

In 1978, ATF promulgated a rule interpreting the

phrase “frame or receiver,” which the GCA does not define. The rule defined the “frame or receiver” of a firearm as “[t]hat part of a firearm which provides housing

for the hammer, bolt or breechblock, and firing mechanism, and which is usually threaded at its forward portion to receive the barrel.” Title and Definition Changes,

43 Fed. Reg. 13,531, 13,537 (Mar. 31, 1978). That definition remained in place until last year.

In April 2022, ATF published the Final Rule changing, among other things, the 1978 definition of “frame or

receiver.” See Definition of “Frame or Receiver” and

Identification of Firearms, 87 Fed. Reg. 24,652 (Apr. 26,

2022) (codified at 27 C.F.R. pts. 447, 478, and 479

(2022)).2 ATF split the phrase into two parts, assigning

the term “frame” to handguns and the term “receiver”

to any firearm other than a handgun, such as rifles and

shotguns. See 27 C.F.R. § 478.12(a)(1), (a)(2). ATF

then defined the terms “frame” and “receiver” along the

same lines as the 1978 rule, though with updated, more

precise technical terminology. 3

The Final Rule took effect on August 24, 2022, in the midst of

the parties’ initial briefing. See 27 C.F.R. pts. 447, 478, and 479

(2022).

Here are the two definitions, in full:

(1) The term “frame” means the part of a handgun, or variants thereof, that provides housing or a structure for the

component (i.e., sear or equivalent) designed to hold back

the hammer, striker, bolt, or similar primary energized

component prior to initiation of the firing sequence, even

if pins or other attachments are required to connect such

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But ATF did not stop there. Rather than merely

updating the terminology, ATF decided to regulate partial frames and receivers. Under the new Final Rule,

“[t]he terms ‘frame’ and ‘receiver’ shall include a partially complete, disassembled, or nonfunctional frame or

receiver, including a frame or receiver parts kit, that is

designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or

receiver.” Id. § 478.12(c). But “[t]he terms shall not

include a forging, casting, printing, extrusion, unmachined body, or similar article that has not yet reached

a stage of manufacture where it is clearly identifiable as

an unfinished component part of a weapon (e.g., unformed block of metal, liquid polymer, or other raw material).” Id.

Further, the Final Rule permits the ATF Director to

consider extrinsic factors when determining if an object

is a frame or receiver. Specifically, “[w]hen issuing a

classification, the Director may consider any associated

templates, jigs, molds, equipment, tools, instructions,

guides, or marketing materials that are sold, distributed, or possessed with [or otherwise made available to

the purchaser or recipient of ] the item or kit.” Id.

component (i.e., sear or equivalent) to the housing or

structure.

(2) The term “receiver” means the part of a rifle, shotgun, or

projectile weapon other than a handgun, or variants

thereof, that provides housing or a structure for the primary component designed to block or seal the breech prior

to initiation of the firing sequence (i.e., bolt, breechblock,

or equivalent), even if pins or other attachments are required to connect such component to the housing or structure.

27 C.F.R. § 478.12(a).

74a

The Final Rule also amends ATF’s definition of “firearm” to include weapon parts kits that are “designed to

or may readily be completed, assembled, restored, or

otherwise converted to expel a projectile by the action

of an explosive.” Id. § 478.11 (definition of “firearm”).

III. PARTIES & PROCEDURAL BACKGROUND

Individual Plaintiffs Jennifer VanDerStok and Michael Andren are Texas residents who own firearm components that they intend to manufacture into firearms

for personal, lawful use. 4 They claim that the Final

Rule prohibits them from directly purchasing products

online that they want to use to manufacture their own

firearms.5 Now, to purchase these products in compliance with the Final Rule, Individual Plaintiffs would

have to route their purchases of the regulated products

through an FFL and incur associated transfer fees ($30

in Individual Plaintiffs’ case), plus additional time and

expense.

Tactical Machining, LLC manufactures and sells

items that are subject to regulation under the Final

Rule.6 Over 90% of Tactical Machining’s business consists of selling items that individuals can use to manufacture frames and receivers and to build functioning

firearms.7

The Firearms Policy Coalition, Inc. (“FPC”) is a nonprofit organization dedicated to promoting the constituVanDerStok Decl. 1, ECF No. 16-2; Andren Decl. 1, ECF No.

16-3.

VanDerStok Decl. 2, ECF No. 16-2; Andren Decl. 2, ECF No.

16-3.

Peters Decl. 1, ECF No. 16-1.

Id. at 2.

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tional rights of American citizens through public education and legislative and legal advocacy. 8 In support of

its educational and advocacy efforts, FPC owns and uses

several firearm parts and products that are subject to

the Final Rule. 9 FPC has hundreds of thousands of

members, donors, and supporters nationwide, many of

whom are plaintiffs in this lawsuit. 10 Individuals and

organizations become FPC members by making a donation via the non-profit corporation’s website. 11 FPC

seeks to bring this lawsuit on behalf of itself and its

members.12

Shortly before the Final Rule took effect in August

2022, Original Plaintiffs sued the U.S. Attorney General,

the Department of Justice, the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), and the ATF

Director over the legality of the Final Rule. 13 Days

later, the Original Plaintiffs sought preliminary injunctive relief, which the Court granted on grounds that they

were likely to succeed on their claim that ATF exceeded

its statutory authority in issuing the Final Rule. 14

BlackHawk Manufacturing Group, Inc. is a manufacturer and retailer that sells products newly subject to

ATF’s Final Rule, with most of its revenue earned

See generally Combs Decl., ECF No. 62-4.

Id. ¶¶ 9-10.

Id. ¶¶ 6-7. Individual Plaintiffs, Tactical Machining, LLC,

BlackHawk Manufacturing Group, Inc. d/b/a 80 Percent Arms, and

Defense Distributed are members of FPC. Id.

Id. ¶ 8.

Orig. Pls.’ Reply 5, ECF No. 191.

See generally Compl., ECF No. 1.

Orig. Pls.’ Mot. for Prelim. Inj., ECF No. 15; Mem. Opinion,

ECF No. 56.

76a

through sales of those products. 15 Defense Distributed

is a private defense contractor that primarily manufactures and deals products now subject to the Final Rule. 16

Defense Distributed is also a member of its co-intervenor, the Second Amendment Foundation (“SAF”), a

non-profit organization that promotes and defends constitutional rights through educational and legal efforts. 17

Like FPC, SAF brings this suit on behalf of itself and

its members.18 The Court subsequently allowed these

parties to intervene in the suit and granted BlackHawk

and Defense Distributed their preliminary injunctions

on the same grounds as the Original Plaintiffs. 19

In the weeks after BlackHawk, Defense Distributed,

and SAF were permitted to join the lawsuit, and after

summary judgment briefing had begun, movants Not

An LLC d/b/a JSD Supply and Polymer80, Inc. filed

their pending motions to intervene. 20 JSD Supply is a

manufacturer and distributor that earns most of its revenue through sales of products now subject to the Final

Rule.21 Likewise, Polymer80, Inc. is a designer, manufacturer, and distributor of firearms and non-firearm

products. 22 Through letters issued by ATF since the

Final Rule’s enactment, Polymer80 learned that some of

its products are considered subject to the Final Rule

Lifschitz Decl. 6-8, ECF No. 62-5 ¶¶ 8, 11, 13.

See generally Defense Distributed Compl., ECF No. 143.

Id. ¶¶ 11-12.

Id.

Mem. Opinions, ECF Nos. 118, 188.

JSD Supply Mot. to Intervene, ECF No. 149; Polymer80 Mot.

to Intervene, ECF No. 157.

JSD Supply Br. 4-5, ECF No. 150.

Polymer80 Br. 1-3, ECF No. 158.

77a

and, if not afforded relief, that its “corporate existence”

is at stake.23

Plaintiffs and Intervenor-Plaintiffs claim the Final

Rule violates several of the Administrative Procedure

Act’s (“APA”) substantive and procedural requirements

and various constitutional guarantees. 24 Though some

raise unique claims, all contend that the Final Rule was

issued in excess of the agency’s statutory authority and

the Court preliminarily agreed. 25 Earlier in the proceedings, the Court considered consolidating its hearing

See generally id.; id. at 4.

Orig. Pls.’ Am. Compl., ECF No. 93 (claiming Final Rule: Exceeds Statutory Authority (Count I), Violates APA’s Notice and

Comment Requirement (Count II), Violates APA’s Ban on Arbitrary and Capricious Conduct (Count III), Violates Nondelegation

Principles (Count IV), Violates Take Care Clause (Count V), Violates Due Process (Count VI), Violates the First Amendment

(Count VII)); see also BlackHawk’s Compl., ECF No. 99 (claiming

Final Rule: Exceeds Statutory Authority (Count I), Violates Separation of Powers (Count II), is Unconstitutionally Vague (Count

III), is Arbitrary and Capricious (Count IV), Violates the APA’s

Procedural Requirements (Count V), Violates the Nondelegation

Doctrine (VI), is Contrary to Constitutional Right, Power, Privilege, or Immunity (VII), Violates the Commerce Clause (VIII), Unlawfully Chills First Amendment Speech (IX), Constitutes an Unconstitutional Taking Without Just Compensation (Count X)); see

also Defense Distributed, et al.’s Compl., ECF No. 143 (claiming

Final Rule: Exceeds Statutory Authority (Count I), Violates the

APA’s Procedural Requirements (Counts II and IV), Violates Delegation Principles (Count III), Violates the Second Amendment

(Count V), Violates Due Process (Count VI)); see also JSD Supply’s

Mem. 10, ECF No. 150 (expressing intent to adopt Plaintiffs’

claims and legal theories in full); see also Polymer80’s Mem. 6-7,

ECF No. 158 (expressing intent to adopt the current plaintiffs’

pending claims in full but to assert several additional claims).

Mem. Opinion, ECF No. 56.

78a

on the parties’ motions for preliminary injunction with a

trial on the merits under Federal Rule of Civil Procedure 65(a)(2).26 After review of the parties’ responsive

briefing, however, the Court did not consolidate and now

considers Plaintiffs’ and Intervenor-Plaintiffs’ claims at

the summary judgment stage.

Thus, based on the Court’s prior decisions in this

case, Defendants are preliminarily enjoined from enforcing the Final Rule against Individual Plaintiffs

VanDerStok and Andren; and, with limited exception,

Tactical Machining, BlackHawk, and Defense Distributed and the companies’ customers. Now ripe for the

Court’s review are the parties’ cross-motions for summary judgment on all statutory and constitutional

claims, as well as JSD Supply’s and Polymer80’s motions to intervene. In part A below, the Court will resolve the motions to intervene before turning to the parties’ cross-motions for summary judgment in part B.

IV. DISCUSSION

Legal Standard 27

Federal Rule of Civil Procedure 24(b) vests a district

court with considerable discretion to permit permissive

intervention in a lawsuit, provided (1) the movant’s inSee Orders, ECF Nos. 33, 107.

Original Plaintiffs and Defendants (the “opponents” for purposes of the following intervention analysis only) contest the propriety of allowing additional intervenors to join the lawsuit by either intervention as of right or permissive intervention. Because

the Court concludes that permissive intervention under Rule 24(b)

is appropriate in this case, it does not reach the merits of intervention as of right under Rule 24(a)(2). FED. R. CIV. P. 24.

79a

tervention is timely, (2) the movant “has a claim or defense that shares with the main action a common question of law or fact,” and (3) intervention will not “unduly

delay or prejudice the adjudication of the original parties’ rights.” FED. R. CIV. P. 24(b)(1)(B), (b)(3); United

States v. City of New Orleans, 540 F. App’x 380, 380-81

(5th Cir. 2013). With respect to the first element of

“timeliness,” courts are to consider four distinct factors:

(1) the length of time between the would-be intervenor’s learning of his interest and his petition to

intervene;

(2) the extent of prejudice to existing parties from

allowing late intervention;

(3) the extent of prejudice to the would-be intervenor if the petition is denied; and

(4) any unusual circumstances [weighing in favor of

or against intervention].

In re Lease Oil Antitrust Litig., 570 F.3d 244, 247-48

(5th Cir. 2009) (quoting Stallworth v. Monsanto Co., 558

F.2d 257 (5th Cir. 1977)). Like permissive intervention

itself, any determination of timeliness is committed to

the court’s discretion. Id. at 248.

Finally, in addition to the three permissive elements

above, courts may also consider factors such as “whether the intervenors’ interests are adequately represented

by other parties” and whether the intervenors “will significantly contribute to full development of the underlying factual issues in the suit.” New Orleans Pub. Serv.,

Inc. v. United Gas Pipe Line Co. (“NOPSI”), 732 F.2d

452, 472 (5th Cir. 1984) (citations omitted).

80a

Analysis

The Court begins with timeliness, which requires

consideration of four factors. In re Lease Oil Antitrust

Litig., 570 F.3d at 247. With respect to the first factor,

opponents of intervention argue that JSD Supply and

Polymer80’s interventions are untimely because they

“waited five months after the commencement of this action to seek intervention” 28 and that they were presumably aware of the other “multiple competing lawsuits

challenging the Final Rule filed before [it] took effect on

August 24, 2022.” 29 In other words, they waited too

long. But these arguments fail because the relevant inquiry for timeliness is how soon the movant intervened

in the instant lawsuit after learning its interest was at

risk, which may or may not occur when the complaint is

filed. Id. at 248. Moreover, a movant’s decision to

forego intervention in another case is irrelevant to the

issue of timeliness in the instant case. See id. (“The

first timeliness factor is ‘[t]he length of time during

which the would-be intervenor actually knew or reasonably should have known of his interest in the case before

he petitioned for leave to intervene.”) (emphasis added).

Thus, “[t]he timeliness clock runs either from the time

the applicant knew or reasonably should have known of

his interest [in the instant litigation] or from the time he

became aware that his interest would no longer be protected by the existing parties to the lawsuit.” Edwards

v. City of Houston, 78 F.3d 983, 1000 (5th Cir. 1996) (emphasis added) (citation omitted). Either way, there

“are no absolute measures of timeliness,” id., and any

Defs.’ Opp. to JSD Supply 3, ECF No. 207; Defs.’ Opp. to Polymer80 5, ECF No. 206.

Orig. Pls.’ Opp. 6-7, ECF No. 212.

81a

assessment of this factor is wholly committed to the

court’s discretion. In re Lease Oil Antitrust Litig., 570

F.3d at 248.

Here, the Original Plaintiffs commenced this suit and

moved for injunctive relief in early August 2022, shortly

before the Final Rule took effect. 30 Among those was

Firearms Policy Coalition, a nonprofit organization that

sought to protect the interests of its entire member

base—of which JSD Supply is a part. 31 On October 1,

2022, the Court concluded that FPC had not demonstrated its associational right to seek injunctive relief on

its members’ behalf.32 At that point, JSD Supply recognized its interests would no longer be protected via its

membership in FPC and, within three months, it moved

to intervene. 33 Days later, on January 9, 2023, Polymer80 similarly moved to intervene. 34 Polymer80 says

it sought to intervene only 13 days after ATF issued letters identifying Polymer80’s products as violative of the

Final Rule.35 And while the Court will not consider evidence “outside the administrative record” in deciding

the merits of an APA claim, the Court is not aware of

any rule that prohibits it from considering extrinsic evidence for purposes of timeliness of intervention.36 Under these circumstances, the Court is of the view that

neither movant waited too long between the time it

ECF Nos. 1, 15.

Vinroe Decl. ¶ 3, ECF No. 213-1.

Mem. Opinion 15, ECF No. 89.

JSD Supply’s Mot., ECF No. 151.

Polymer80’s Mot., ECF No. 157.

Id. at 2-6.

Orig. Pls.’ Opp. 7, ECF No. 212.

82a

learned of its interests in the suit and its motion to intervene.

Next, the Court considers “the extent of prejudice to

existing parties from allowing late intervention.” In re

Lease Oil Antitrust Litig., 570 F.3d at 247. The opponents claim permitting intervention will prejudice the

existing parties by delaying ultimate resolution of the

case. 37 But here the proper inquiry is the extent to

which the existing parties were prejudiced by the intervenors’ delay in seeking to intervene, not how the existing parties may be inconvenienced after the intervenors

have successfully joined. Sierra Club v. Espy, 18 F.3d

1202, 1206 (5th Cir. 1994); Adam Joseph Res. v. CNA

Metals Ltd., 919 F.3d 856, 865 (5th Cir. 2019). Delay of

proceedings, on its own, is not equivalent to prejudice.

And the opponents to intervention have offered no explanation about how a purported delay of proceedings

would be prejudicial. Instead, the opponents have

claimed prejudice due to the resulting inconvenience associated with the intervenors’ subsequent participation

in the lawsuit. That is not enough. “Any potential

prejudice caused by the intervention itself is irrelevant,

because it would have occurred regardless of whether

the intervention was timely.” In re Lease Oil Antitrust Litig., 570 F.3d at 248 (emphasis added) (citation

omitted). Moreover, as permitted by Rule 54, the

Court finds no just reason it should delay entry of summary judgment on the existing parties’ pending claims,

Defs.’ Opp. to JSD Supply 3, 7, ECF No. 207; Defs.’ Opp. to

Polymer80 5-6, 9-10, ECF No. 206 (noting Polymer80 asserts ten

causes of action separate from those of the existing plaintiffs);

Original Pls.’ Opp. 8, ECF No. 212.

83a

which the intervenors have expressly agreed to adopt. 38

FED. R. CIV. P. 54(b). Thus, any prejudice that delayed

proceedings might cause the parties (though doubtful)

is cured by this Court’s resolution and entry of judgment now as to those shared claims.

Third, the Court considers the “extent of prejudice to

the would-be intervenor if the petition is denied.” In

re Lease Oil Antitrust Litig., 570 F.3d at 247-48. Denying intervention would prejudice the would-be intervenors by delaying a favorable judgment, without which

their declining revenues would be prolonged, potentially

forcing their dissolution. 39

Polymer80 concedes it

would not be prejudiced if denied intervention in this

case, provided its separate lawsuit and preliminary injunction in that case is not dismissed. 40 This conditional concession undoubtedly minimizes its claims of

JSD Supply’s Mem. 10, ECF No. 150 (expressing intent to

adopt Plaintiffs’ claims and legal theories in full); Polymer80’s

Mem. 6-7, ECF No. 158 (expressing intent to adopt Plaintiffs’ summary judgment briefing in full and to assert additional distinct

claims). To the extent Polymer80 wishes to seek summary judgment on its alternate claims, it may do so. That Defendants may

be required to litigate the additional claims is irrelevant, because

they would be required to do so whether Polymer80 brought those

claims in this case or a separate case.

Kelley Decl. ¶¶ 13-14, Polymer80 App. 6, ECF No. 159 (noting

the “profound economic harm” that Polymer80 has experienced following the Final Rule’s effective date); Vinroe Supp. Decl. ¶ 3, ECF

No. 213-1 (noting JSD Supply’s revenues have dropped by more

than 73% since the Final Rule’s effective date).

Polymer80’s Reply 6, ECF No. 214. After it sought intervention and learned resolution of that motion would be deferred for

several months, Polymer80 filed an independent lawsuit before this

Court. See Polymer80, Inc. v. Garland, Civil Action No. 4:23-cv00029-O (N.D. Tex. Jan. 9, 2023).

84a

prejudice in the instant suit. But because the “most

important consideration” in determining intervention is

the prejudice to the parties opposing intervention—and

the Court finds that none exists—this concession is of

little weight in the Court’s decision. Rotstain v. Mendez, 986 F.3d 931, 938 (5th Cir. 2021).

Fourth, the Court finds no “unusual circumstances”

that weigh heavily for or against intervention. In re

Lease Oil Antitrust Litig., 570 F.3d at 248. Defendants

contend that permitting Polymer80’s intervention in

this case while the company’s independent and duplicative suit is pending would violate the rule against claimsplitting.41 That rule permits—but does not require—

a court to dismiss a second complaint that “alleg[es] the

same cause of action as a prior, pending, related action.”

Friends of the Earth, Inc. v. Crown Cent. Petroleum

Corp., 95 F.3d 358, 362 (5th Cir. 1996) (authorizing

courts to dismiss a second complaint whether it is duplicative of a previously filed and still active suit). The

claim-splitting rule is permissive, however, and does not

require the Court to take any action at all. Id. In any

event, if the rule were applied here, the appropriate

course would be to dismiss Polymer80’s independent

suit, which it filed after attempting its initial intervention here.

Nor are the other permissible timeliness factors—

“whether the intervenors’ interests are adequately represented by other parties” and whether the intervenors

“will significantly contribute to full development of the

underlying factual issues in the suit”—particularly compelling. NOPSI, 732 F.2d at 472. Defendants argue

Defs.’ Opp. to Polymer80 3-4, 9, ECF No. 206.

85a

intervention will not “significantly contribute to the full

development of the underlying factual issues” because

the existing parties have already “fully developed and

briefed their claims,” and intervenors therefore cannot

meaningfully contribute. 42 Elsewhere, however, Defendants point out that Polymer80 raises ten distinct

causes of action, all of which presumably require further

development.43 In response, Polymer80 says its status

as “the industry leader in the design, manufacture, and

distribution of the products that ATF” seeks to regulate

will significantly contribute to the factual development

of the underlying issues in dispute but offers no more

than that bare assertion. 44 For its part, JSD Supply offers no rebuttal to Defendants. Thus, on the briefing

before it, the Court finds that this factor is, at best, neutral for purposes of intervention or weighs slightly

against intervention. But given that the other factors

favor intervenors, the Court does not find this sufficient

to bar intervention.

Finally, the opponents also argue that JSD Supply

and Polymer80 have other means of asserting their interests.45 Indeed, Polymer80 has a separate suit currently pending before this Court. 46 But whether an intervenor has other adequate means of protecting its inDefs.’ Opp. to Polymer80 9, ECF No. 206; Defs.’ Opp. to JSD

Supply 7, ECF No. 207.

Defs.’ Opp. to Polymer80 6 n.3, ECF No. 206.

Polymer80’s Reply 8, ECF No. 214.

Defs.’ Opp. to JSD Supply 6-7, ECF No. 207; Defs.’ Opp. to

Polymer80 9-10, ECF No. 206; Original Pls.’ Opp. 5-6, ECF No.

212.

Polymer80, Inc. v. Garland, Civil Action No. 4:23-cv-00029-O

(N.D. Tex. Jan. 9, 2023).

86a

terests is not a dispositive or necessary factor for the

Court’s decision to grant permissive intervention.

Though the Court could require the parties to initiate or

maintain their own lawsuits, the purpose of Rule 24 and

the principle of judicial efficiency counsel against that

course of action. See United States v. Tex. E. Transmission Corp., 923 F.2d 410, 412 (5th Cir. 1991) (noting

Rule 24’s goals of achieving “judicial economies of scale

by resolving related issues in a single lawsuit” while preventing the single lawsuit “from becoming fruitlessly

complex or unending”) (cleaned up). Allowing intervention preserves judicial resources by preventing multiple parallel proceedings from running concurrently in

multiple courts or before multiple jurists when this

Court is already well-acquainted with the parties’ respective claims. Nor is there a need to divide lawsuits

where, as here, the would-be intervenors largely agree

to adopt the claims and briefing schedule already before

the Court, which reduces the complexity of the case.

In sum, the Court holds that all requisite elements

for permissive intervention—timeliness, shared causes

of action, and prejudice—weigh in favor of allowing the

intervenors to join the lawsuit. For these reasons, the

Court GRANTS JSD Supply’s and Polymer80’s motions

to intervene on permissive grounds. Because JSD

Supply and Polymer80 have agreed to adopt the current

Plaintiffs’ summary judgment briefing with respect to

their shared claims, and because those express intentions inform the Court’s discretionary decision to permit

intervention here, the intervenors are barred from separately moving for summary judgment or filing supplemental briefing on any of the existing claims. How-

87a

ever, Polymer80 may move for summary judgment on

its unique claims to the extent those claims are not

mooted by the Court’s decision today.

Legal Standards

Disputes arising under the APA are commonly resolved on summary judgment, wheredistrict courts sit

as an appellate tribunal to decide legal questions on the

basis of the administrative record.

See Amin v.

Mayorkas, 24 F.4th 383, 391 (5th Cir. 2022). Summary

judgment is proper where the Court finds that there are

no genuine disputes of material fact and the movant is

entitled to judgment as a matter of law. FED. R. CIV.

P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986). Upon review of agency action, district courts apply the APA, which requires the reviewing court to “hold

unlawful and set aside agency action” that the court

finds to be “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or

limitations, or short of statutory right; [and] (D) without

observance of procedure required by law.” 5 U.S.C.

§ 706(2).

Among other procedural requirements, the APA requires agencies to provide “legislative” rules (i.e., substantive regulations) for public notice and comment, id.

§ 553(b), and to ensure that the final version of such a

rule is a “logical outgrowth” of the agency’s initial regulatory proposal. Huawei Techs. USA, Inc. v. FCC, 2

F.4th 421, 447 (5th Cir. 2021). The APA’s arbitrary

and capricious standard requires that agency action be

88a

both “reasonable and reasonably explained,” FCC v.

Prometheus Radio Project, 141 S. Ct. 1150, 1158 (2021),

meaning agencies must not “rel[y] on factors which Congress has not intended it to consider” or “entirely fail[]

to consider an important aspect of the problem” when

issuing regulations. Motor Vehicle Mfrs. Ass’n of U.S.,

Inc. v.State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983).

Once a court determines the contested agency action

falls short of the APA’s substantive or procedural requirements, the reviewing court “shall” set aside the unlawful agency action. 5 U.S.C. § 706(2); Data Mktg.

P’ship, LP v. United States Dep’t of Labor, 45 F.4th 846,

859 (5th Cir. 2022).

Article III Standing

As a preliminary defense, Defendants argue that

some of the plaintiffs, the Individual Plaintiffs and the

non-profit organizations, are not entitled to entry of

summary judgment because they lack standing to challenge the Final Rule. Because “standing is not dispensed in gross,” the general rule is that each plaintiff

must demonstrate a personal stake in the outcome of the

case or controversy at bar. Town of Chester v. Laroe

Ests., Inc., 137 S. Ct. 1645, 1650 (2017). This means

each plaintiff to a case “must demonstrate standing for

each claim he seeks to press and for each form of relief

that is sought.” Id. (cleaned up). When there are

multiple plaintiffs or intervenors to a lawsuit that request the same form of relief, however, only “one plaintiff must have standing to seek each form of relief requested.” Id. at 1651 (emphasis added).

89a

Here, among other requested forms of relief, all

plaintiffs and intervenors—including those litigants

whose standing is not in question—ask this Court to declare unlawful and set aside the Final Rule. 47 Accordingly, the Court could address the legality of the Final

Rule regardless of whether the Individual Plaintiffs and

the non-profit organizations have standing. Nevertheless, because these parties will not be entitled to unique

forms of relief (e.g., party-specific injunctive relief or attorneys’ fees) without independently demonstrating

standing, the Court addresses the individuals’ and the

organizations’ standing before turning the merits of

their claims.48

To establish Article III standing, a plaintiff must

show it has suffered (1) an injury-in-fact (2)that is fairly

traceable to the defendants’ conduct, and (3) is likely to

be redressed by a favorable judicial decision. Id. at

1650. As the parties invoking federal jurisdiction,

plaintiffs bear the burden of proving each element of

standing. Lujan v. Defs. Of Wildlife, 504 U.S. 555, 561

(1992).

Orig. Pls.’ Am. Compl. 57, ECF No. 93 (seeking vacatur, injunctive relief, attorneys’ fees and costs, etc.); BlackHawk’s Compl.

33, ECF No. 99 (same); Defense Distributed, et al.’s Compl. 27,

ECF No. 143 (same); JSD Supply’s Proposed Compl. 29-30, ECF

No. 149-2 (same); Polymer80’s Proposed Compl. 43-44, App. 10102, ECF No. 159 (same).

To be entitled to attorneys’ fees, a plaintiff must independently

establish standing and prevail on the merits of an underlying claim.

See, e.g., Steel Co. v. Citizens for a Better Environment, 523 U.S.

83, 107 (1998) (“An interest in attorney’s fees is insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim.”) (cleaned up) (emphasis added).

90a

i. Individual Plaintiffs

First, Defendants argue that Individual Plaintiffs

VanDerStok and Andren cannot demonstrate standing

because “the only purported injury they plausibly

invoke—a $30 transfer fee that certain FFLs purportedly would charge them to facilitate a firearm purchase

—is not fairly traceable to the Rule.” 49 Defendants

contend that an FFL’s independent decision to charge

Individual Plaintiffs a transfer fee to facilitate purchase

of newly regulated products bears no causal relationship

to the Final Rule, and is therefore not fairly traceable to

Defendants’ conduct.50 But Defendants are wrong on

this point.

While the Supreme Court has declined to endorse

theories of standing “that rest on speculation about the

decisions of independent actors,” where a plaintiff can

make a showing of de facto causality, standing’s traceability element is satisfied. Dep’t of Com. v. New York,

139 S. Ct. 2551, 2566 (2019) (emphasis added). Here,

Individual Plaintiffs’ theory of standing is not speculative. Instead, it relies “on the predictable effect of

Government action on the decisions of third parties.”

Id. Individual Plaintiffs have confirmed that the FFLs

they would use to facilitate their purchases will in fact

charge a transfer fee. 51 And it is highly predictable

that FFLs would charge for this service, particularly

when faced with the prospect of an influx of customers

who need to make purchases of certain products through

Defs.’ Reply 2, ECF No. 204; Defs.’ Cross-Mot. 11-12, ECF No.

181.

Defs.’ Reply 2-3, ECF No. 204.

VanDerStok Decl. ¶¶ 2-6, ECF No. 62-1; Andren Decl. ¶¶ 2-6,

ECF No. 62-2.

91a

an FFL as a result of a recent government mandate.

Absent the requirements of the Final Rule, the Individual Plaintiffs would not purchase the regulated products

through an FFL and would therefore not incur an associated transfer fee. This is sufficient to show de facto

causality. Thus, the Court is satisfied that Individual

Plaintiffs’ purported injury is fairly traceable to Defendants’ actions.

Even if the FFLs’ independent decision to charge a

transfer fee broke the chain of causation, Individual

Plaintiffs have an alternative basis for standing that Defendants largely ignore. In a footnote, Defendants dismiss Individual Plaintiffs’ other alleged injury—the

threat of criminal prosecution should they violate the

Rule—as simply “not credible.” 52 They say the risk of

criminal prosecution is not a cognizable injury because

the costs Individual Plaintiffs would have to incur to

avoid criminal liability “are merely de minimis.”53

Here, however, Defendants conflate the injury analysis required for Article III standing with the irreparable harm analysis required for a preliminary injunction.54 It is true that, for purposes of injunctive relief,

Defs.’ Reply 2 n.3, ECF No. 204.

Id. (“ “Plaintiffs do not face a ‘Hobson’s choice’ whether to comply with a regulation or risk criminal prosecution when the costs of

compliance are merely de minimis.”).

Plaintiffs respond that “[t]he Agencies provide no argument as

to . . . how Individual Plaintiffs could suffer irreparable harm

[as the Court previously held] and yet not have standing.” Pls. ’

Reply 3, ECF No. 191. But irreparable harm for purposes of injunctive relief and Article III injury-in-fact are not equivalents.

And Plaintiffs offer no authority indicating that a showing of irreparable harm for purposes of injunctive relief automatically satisfies

Article III’s injury-in-fact requirement. Moreover, many courts

92a

a plaintiff must allege an irreparable injury that is more

than merely de minimis. See Dennis Melancon, Inc.

v. City of New Orleans, 703 F.3d 262, 279 (5th Cir. 2012).

But Defendants offer no authority for the proposition

that a plaintiff ’s alleged injury must pass a certain

threshold to be cognizable for purposes of Article III.

Nor is the Court aware of any such requirement.

It is well established that a credible threat of government action, on its own, provides a plaintiff with a sufficient basis for bringing suit. MedImmune, Inc. v.

Genentech, Inc., 549 U.S. 118, 128-29 (2007). This remains true even if a plaintiff takes steps to protect themselves from prosecution. As the Supreme Court has

made clear, a “plaintiff ’s own action (or inaction) in failing to violate the law eliminates the imminent threat of

prosecution, but nonetheless does not eliminate Article

III jurisdiction.” Id. Thus, even if Individual Plaintiffs in this case ameliorated the threat of government

enforcement by making their purchases through an

FFL and paying the associated fee (action), or by simply

refraining from purchasing the regulated products they

want to buy (inaction), they do not lose their right to

challenge the Final Rule. 55 Defendants offer no arguaddress these issues separately, confirming that the analysis is distinct. See, e.g., Memphis A. Philip Randolph Inst. v. Hargett, 978

F.3d 378 (6th Cir. 2020) (analyzing Article III standing and irreparable harm for purposes of injunctive relief separately); East Bay

Sanctuary v. Trump, 932 F.3d 742, 762 (9th Cir. 2018) (same);

Geer’s Ranch Café v. Guzman, 540 F. Supp. 3d 638 (N.D. Tex. 2021)

(same) (O’Connor, J.).

For the same reasons, Defendants’ argument that FPC cannot

establish Article III standing in its own right fails. See Defs.’ Reply 3 n.4. As FPC avers, it owns and uses products now subject to

the Final Rule and, though a corporate entity, will suffer the same

93a

ment regarding the traceability or redressability of this

alternative injury. Nor could they. Thus, the Court

holds that Individual Plaintiffs’ threat of civil or criminal

penalties is a cognizable injury under Article III and

that, on this basis also, they have demonstrated standing to pursue their claims.

ii.

Non-profit Organizations

Second, Defendants claim the organizations—Firearms

Policy Coalition and the Second Amendment Foundation

—have failed to demonstrate associational (or organizational) standing. The associational standing doctrine

permits a traditional membership organization “to invoke the court’s [injunctive or declaratory] remedial

powers on behalf of its members.” Warth v. Seldin,

422 U.S. 490, 515 (1975). To do so, the organization

must satisfy a three-prong test showing that “(a) its

members would otherwise have standing to sue in their

own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the

claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 20-1199, --- S. Ct. ---, 2023

WL 4239254, at *8 (U.S. June 29, 2023) (quoting Hunt v.

Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343

(1977)).

financial injury as Individual Plaintiffs if required to comply and

the same threat of prosecution for non-compliance. Orig. Pls.’ Br.

50, ECF No. 141; Combs Decl. ¶¶ 9-11, ECF No 62-4.

94a

Defendants do not meaningfully contend that FPC

and SAF cannot satisfy the three-prong Hunt test. 56

Instead, they challenge the non-profits’ statuses as “traditional membership organizations” arguing that, because they cannot satisfy this threshold requirement,

they cannot establish associational standing. Defendants contend that, under Fifth Circuit precedent, an organization can only prove itself a “traditional membership organization” if it provides evidence that its members both fund and control the organization’s activities.

By contrast, FPC and SAF contend that they are traditional membership organizations because they have

members nationwide who, by donating to their organizations, have “joined voluntarily to support [the nonprofits’] mission[s].”57 Students for Fair Admissions,

Inc. v. University of Texas at Austin, 37 F.4th 107

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