Amicus Curiae Brief — Pamela Bondi, Attorney General, et al., Petitioners v. Jennifer VanDerStok, et al.

No. 23-852

IN THE

Supreme Court of the United States

_______________

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

Petitioners,

v.

JENNIFER VANDERSTOK, ET AL.,

_______________

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

_______________

BRIEF OF THE FIREARMS REGULATORY

ACCOUNTABILITY COALITION AND

PALMETTO STATE ARMORY, LLC

AS AMICI CURIAE SUPPORTING

RESPONDENTS

_______________

STEPHEN J. OBERMEIER

Counsel of Record

JEREMY J. BROGGI

MICHAEL D. FAUCETTE

BOYD GARRIOTT

WILEY REIN LLP

2050 M Street NW

Washington, DC 20036

(202) 719-7000

SObermeier@wiley.law

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

Table Of Authorities................................................. ii

Introduction .............................................................. 1

Interest Of Amici Curiae.......................................... 2

Summary Of Argument............................................ 3

Argument .................................................................. 7

I.

The Government’s Multifactor Tests Violate The

Statute. ............................................................... 7

A. The Rule Imposes Unweighted, Multifactor

Balancing Tests That Make Compliance

Virtually Impossible. .................................. 7

B. The Rule’s Unweighted, Multifactor

Balancing Tests Are Not The Single, Best

Meaning Of The Gun Control Act. .......... 10

II. Lenity

Forecloses

The

Government’s

Interpretations. ................................................ 17

A. Under The Separation Of Powers, Only

Congress May Make An Act A Crime. ..... 17

B. The Rule Of Lenity Prevents The Executive

From Defining New Crimes Through

Rulemaking. ............................................. 18

C. Lenity Precludes The Government’s

Amorphous Interpretation Of A Criminal

Statute. ..................................................... 22

III. The Rule Is Part Of A Disturbing Trend By ATF

To Deter Gun Ownership Through Vague,

Overinclusive Regulations. .............................. 25

Conclusion .............................................................. 29

ii

TABLE OF AUTHORITIES

Cases

Page(s)

14 Penn Plaza LLC v. Pyett,

556 U.S. 247 (2009) .............................................. 11

Abramski v. United States,

573 U.S. 169 (2014) .............................................. 18

American Broadcasting Companies v.

Aereo, Inc.,

573 U.S. 431 (2014) .............................................. 28

Campos-Chaves v. Garland,

144 S. Ct. 1637 (2024) .......................................... 10

Carter v. Welles-Bowen Realty, Inc.,

736 F.3d 722 (6th Cir. 2013) ................................ 21

City of Arlington v. FCC,

569 U.S. 290 (2013) .............................................. 23

Connally v. General Construction Co.,

269 U.S. 385 (1926) .............................................. 15

Crandon v. United States,

494 U.S. 152 (1990) .............................................. 20

District of Columbia v. Heller,

554 U.S. 570 (2008) .............................................. 16

FBI v. Fazaga,

595 U.S. 344 (2022) .............................................. 15

FCC v. Fox Television Stations, Inc.,

567 U.S. 239 (2012) .............................................. 15

iii

FDA v. Brown & Williamson Tobacco

Corp.,

529 U.S. 120 (2000) .............................................. 12

FRAC v. Garland,

No. 23-3230, 2024 WL 3737366 (8th

Cir. Aug. 9, 2024) ............................. 3, 6, 25–26, 28

Garland v. Cargill,

602 U.S. 406 (2024) .............................................. 26

Guedes v. ATF,

920 F.3d 1 (D.C. Cir. 2019) .................................. 18

Gun Owners of America, Inc. v.

Garland,

19 F.4th 890 (6th Cir. 2021) ................................ 18

Holy Trinity Church v. United States,

143 U.S. 457 (1892) .............................................. 11

Innovator Enterprises, Inc. v. Jones,

28 F. Supp. 3d 14 (D.D.C. 2014) .......................... 27

Kirtsaeng v. John Wiley & Sons, Inc.,

568 U.S. 519 (2013) .............................................. 12

LeMoyne-Owen College v. NLRB,

357 F.3d 55 (D.C. Cir. 2004) ............................ 9, 28

Leocal v. Ashcroft,

543 U.S. 1 (2004) .............................................. 5, 20

Loper Bright Enterprises v. Raimondo,

144 S. Ct. 2244 (2024) ................ 4, 7, 10–11, 21–22

iv

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) ............................... 18

In re: MCP No. 185,

No. 24-7000, 2024 WL 3650468 (6th

Cir. Aug. 1, 2024) ................................................. 13

Michigan v. EPA,

576 U.S. 743 (2015) .......................................... 4, 12

Mock v. Garland,

75 F.4th 563 (5th Cir. 2023) ............................ 6, 26

Peoples Rights Org., Inc. v. City of

Columbus,

152 F.3d 522 (6th Cir. 1998) ................................ 15

Reno v. ACLU,

521 U.S. 844 (1997) .............................................. 16

Rowland v. California Men’s Colony,

Unit II Men’s Advisory Council,

506 U.S. 194 (1993) .............................................. 14

Rudisill v. McDonough,

601 U.S. 294 (2024) .............................................. 23

Ryan v. Gonzales,

568 U.S. 57 (2013) ................................................ 14

Smiley v. Citibank (South Dakota),

N.A.,

517 U.S. 735 (1996) .............................................. 24

Snyder v. United States,

144 S. Ct. 1947 (2024) .......................................... 15

v

Tripoli Rocketry Association, Inc. v.

ATF,

437 F.3d 75 (D.C. Cir. 2006) .................... 23, 27–28

Turkiye Halk Bankasi A.S. v. United

States,

598 U.S. 264 (2023) .............................................. 13

United States v. 16,179 Molso Italian

.22 Caliber Winler Derringer

Convertible Starter Guns,

443 F.2d 463 (2d Cir. 1971) ................................. 23

United States v. Bass,

404 U.S. 336 (1971) .............................. 5, 18, 20, 24

United States v. Comstock,

560 U.S. 126 (2010) .............................................. 12

United States v. Davis,

588 U.S. 445 (2019) .................................... 5, 17–18

United States v. George,

228 U.S. 14 (1913) ................................................ 17

United States v. Granderson,

511 U.S. 39 (1994) ...................................... 5, 19, 24

United States v. Hansen,

599 U.S. 762 (2023) .............................................. 16

United States v. Mead Corp.,

533 U.S. 218 (2001) ................................................ 7

United States v. Nixon,

418 U.S. 683 (1974) .............................................. 17

vi

United States v. Rowold,

429 F. Supp. 3d 469 (N.D. Ohio

2019) ..................................................................... 23

United States v. Santos,

553 U.S. 507 (2008) .............................................. 24

United States v. Thompson/Center

Arms Co.,

504 U.S. 505 (1992) .................................... 5, 19–20

United States v. Wiltberger,

18 U.S. (5 Wheat.) 76 (1820) .......................... 18–19

Wooden v. United States,

595 U.S. 360 (2022) .............................................. 19

Statutes

18 U.S.C. § 921 ........................................ 3, 7–8, 13, 22

18 U.S.C. § 924 .......................................................... 13

18 U.S.C. § 926 .......................................... 4, 11, 22–23

26 U.S.C. § 5845 ........................................................ 19

Pub. L. No. 90-618, 82 Stat. 1213 (Oct.

22, 1968) ............................................................... 14

Regulatory Materials

27 C.F.R. § 478.11 ................................................... 3, 8

27 C.F.R. § 478.12 ................................................... 3, 8

vii

Definition of “Frame or Receiver” and

Identification of Firearms, 87 Fed.

Reg. 24,652 (April 26, 2022) .. 3–4, 8–13, 15, 23–24

Factoring Criteria for Firearms With

Attached “Stabilizing Braces,” 88

Fed. Reg. 6478 (Jan. 31, 2023) ............................ 26

Title and Definition Changes, 43 Fed.

Reg. 13531 (Mar. 31, 1978) .................................. 22

Other Authorities

The Federalist No. 47 (James Madison)

(Clinton Rossiter ed., 1961) ................................. 17

The Federalist No. 51 (James Madison

or Alexander Hamilton) (Clinton

Rossiter ed., 1961) ................................................ 17

INTRODUCTION1

The Gun Control Act (“GCA”) regulates guns that

shoot projectiles and guns that “may readily be converted” to shoot projectiles. For decades, and consistent with the phrase’s plain meaning, courts have

interpreted “readily be converted” to reach inoperative guns that can be made operational in a few

minutes.

The GCA also regulates “the frame or receiver” of

a gun. And again, courts and the Bureau of Alcohol,

Tobacco, Firearms and Explosives (“ATF”) have for

decades interpreted this phrase in accordance with a

longstanding, well-settled technical meaning.

These clear and consistent interpretations of the

GCA have allowed the gun industry and the gun-owning public to comply with the law and avoid the felony

criminal penalties that attach to noncompliance.

Now, under the guise of providing additional

“clarity” where none was needed, the Government has

created regulatory chaos. In the Rule under review,

ATF “defines” the key statutory terms using a pair of

non-exhaustive, unweighted, and subjective multifactor tests. These standards are practically impossible

to apply—and intentionally so. The Government

claimed vague definitions were necessary to preserve

“flexibility” and to “deter” the creation of unregulated

guns that would escape “the spirit and intent of the

No party’s counsel authored this brief in whole or in part, and

no person or entity other than amici or their counsel made a monetary contribution to fund the brief’s preparation or submission.

1

2

GCA.” This unbounded agency discretion and in terrorem regulation is patently unlawful.

The Government’s amorphous balancing tests

misinterpret the GCA. They flout the text, structure,

and purpose of the statute, and raise difficult constitutional questions under this Court’s fair-notice and

Second Amendment precedents. At minimum, the

multifactor tests are not unambiguously compelled by

the statutory text and thus flunk the rule of lenity.

And if this Court upholds ATF’s vague standards, the

agency will be emboldened to continue wielding regulatory uncertainty as a tool to undermine lawful gun

ownership.

For these reasons, the Court should affirm.

INTEREST OF AMICI CURIAE

The Firearms Regulatory Accountability Coalition, Inc. (“FRAC”) is a non-profit association

working to improve business conditions for the firearms industry by ensuring the industry receives fair

and consistent treatment from firearms regulatory

agencies. FRAC is the premiere national trade association representing U.S. firearms manufacturers, retailers, importers, and innovators on regulatory and

legislative issues impacting the industry in the

United States.

Palmetto State Armory, LLC (“PSA”) designs

and manufactures guns, parts, and accessories for use

by civilians and law enforcement. Because PSA’s

business is regulated by ATF, it has an interest in ensuring that ATF’s regulations are lawful and offer

workable guidance for the public.

3

Amici oppose firearms regulatory agencies using

vague multifactor tests to define the scope of criminal

statutes. As amici know firsthand, these “multi-factor, weight-of-the-evidence test[s]” “make[ ] it nigh

impossible for a regular citizen” to comply with federal

gun laws. See, e.g., FRAC v. Garland, No. 23-3230,

2024 WL 3737366, at *11 (8th Cir. Aug. 9, 2024) (quotations omitted). They also offend basic constitutional

guarantees of due process and the right to gun ownership.

SUMMARY OF ARGUMENT

The Government adopted the Rule at issue in this

case ostensibly to provide a “more comprehensive definition” of “firearm.” See Definition of “Frame or Receiver” and Identification of Firearms, 87 Fed. Reg.

24,652, 24,652 (April 26, 2022). The GCA definition

reaches “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), and “the frame or receiver of

any such weapon,” id. § 921(a)(3)(B). The Rule focuses

on two phrases: (i) “readily be converted,” and

(ii) “frame or receiver.”

The Rule purports to define these terms using

non-exhaustive, multifactor balancing tests. It says

that it will assess “readily be converted” by analyzing

at least eight factors, including “time,” “expense,”

“equipment,” “scope,” and more. 27 C.F.R. § 478.11.

And to determine whether a piece of metal is a “frame”

or “receiver,” it will also assess a non-exhaustive list

of factors, including “templates,” “tools,” “marketing

materials,” and more. Id. § 478.12(c).

4

These standards are virtually impossible to apply.

For one, they do not define the relevant factors: “time”

and “expense” are listed as relevant factors, but there

is no indication of how much time or money is probative. The agency also does not weight the factors or

otherwise explain how to holistically apply them:

there is no way to assess an item that can be converted

in a lot of “time” but with little “expense” (or vice

versa). And because the lists of factors are non-exhaustive, the agency always retains discretion to

spring new factors on regulated parties.

From the agency’s perspective, these issues are

features, not bugs. The Government devised a vague

standard to give itself “flexibility.” 87 Fed. Reg. at

24,669. It expressly did not want to “provide guidance” on the precise scope of the GCA because “persons may structure transactions to avoid the requirements of the law,” id. at 24,692, which—in ATF’s

view—would “skirt[ ] the spirit and intent of the

GCA.” Id. at 24,669. In other words, the agency intends to use indeterminacy to “deter” unlicensed gunmaking, id. at 24,686, even legal unlicensed gunmaking that the agency does not like.

The agency’s unbounded standards are not the

“single, best meaning” of the GCA. Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2266 (2024). The

standards’ factors and amorphous methodologies appear nowhere in the statutory text. And multifactor

tests that intentionally obscure the meaning of a statute carrying criminal penalties are not “necessary to

carry out” that statute, 18 U.S.C. § 926(a), and thus

exceed the agency’s rulemaking authority, see Michigan v. EPA, 576 U.S. 743, 751–54 (2015) (rejecting

5

agency’s interpretation of “appropriate and necessary”). Worse still, the agency’s unlawful interpretation puts the GCA on a collision course with this

Court’s fair-notice and Second Amendment precedents.

Even if ATF’s multifactor tests were permissible

under a de novo reading of the statute (they are not),

they would independently be foreclosed by the rule of

lenity. Lenity stems from the Constitution’s requirement that “[o]nly the people’s elected representatives

in the legislature are authorized to ‘make an act a

crime.’” United States v. Davis, 588 U.S. 445, 452

(2019). The result is that Congress must speak

“plainly and unmistakably” before courts will find

that it has criminalized conduct. United States v.

Bass, 404 U.S. 336, 348 (1971) (citations and quotations omitted). If there is any doubt about Congress’s

language, lenity resolves the ambiguity in favor of the

citizen.

In the context of a rulemaking like this one, lenity

means ATF’s regulation cannot be upheld unless “the

Government’s position is unambiguously correct.”

United States v. Granderson, 511 U.S. 39, 54 (1994).

As a statute with both criminal and noncriminal applications, the GCA must be interpreted consistently

in both settings. See Leocal v. Ashcroft, 543 U.S. 1, 11

n.8 (2004). Thus, this Court has held it “proper” when

interpreting criminal gun-control statutes “in a civil

setting” “to apply the rule of lenity and resolve the ambiguity in [the citizen]’s favor,” United States v.

Thompson/Center Arms Co., 504 U.S. 505, 517–18

(1992) (plurality); see also id. at 519 (Scalia & Thomas,

JJ., concurring).

6

In this case, lenity applies because ATF’s broad,

amorphous multifactor tests are not unambiguously

compelled by the GCA. To the contrary, the agency

for years applied narrower, more precise interpretations of the statute. And if the agency has discretion

to employ amorphous standards, it also has discretion

to employ more precise tests that put the public on notice of what is unlawful. The availability of interpretations that favor the citizen forecloses the agency’s

interpretation that favors the prosecutor.

Finally, the agency is badly in need of a course correction. It regularly interprets criminal gun-control

statutes the way it has done in this Rule: attempting

to use vague, qualitative standards that give the

agency unbridled discretion to surprise regulated parties with felony prosecutions. Just this month, the

Eighth Circuit found a different ATF multifactor test

unlawful because it “articulated no standard whatsoever” and “allow[ed] ATF to reach whatever result it

wants.” FRAC, 2024 WL 3737366, at *9, *11; accord

Mock v. Garland, 75 F.4th 563, 578–88 (5th Cir. 2023).

An inscrutable methodology is unacceptable in a statutory context where compliance mistakes result in

“felony conviction and imprisonment followed by a

lifetime ban on firearm ownership.” FRAC, 2024 WL

3737366, at *2.

This Court should affirm.

7

ARGUMENT

I. THE

GOVERNMENT’S

MULTIFACTOR

TESTS VIOLATE THE STATUTE.

A. The Rule Imposes Unweighted, Multifactor Balancing Tests That Make Compliance Virtually Impossible.

All statutes “have a single, best meaning” that “is

fixed at the time of enactment.” Loper Bright, 144 S.

Ct. at 2266. According to the Government, the single,

best meaning of the GCA mandates the “test most beloved by [an agency] unwilling to be held to rules (and

most feared by litigants who want to know what to expect): th’ol’ ‘totality of the circumstances’ test.” United

States v. Mead Corp., 533 U.S. 218, 241 (2001) (Scalia,

J., dissenting).

First, the Rule purports to interpret the phrase

“readily be converted.” 18 U.S.C. § 921(a)(3)(A). That

phrase is important to the regulated public because it

determines whether an item is an unregulated piece

of metal or a “firearm”—the unlicensed manufacture

or sale of which carries heavy criminal penalties. The

agency asserts that the term “readily” mandates assessment of a non-exhaustive list of factors, including:

(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;

8

(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.

27 C.F.R. § 478.11.

The Rule also interprets the terms “frame” and

“receiver.” 18 U.S.C. § 921(a)(3)(B). The scope of

these terms is also important because the GCA defines “firearm” to include the “frame or receiver” of a

gun. Ibid. According to the agency, the best interpretation of these terms mandates assessment of a nonexhaustive list of factors, including an item or kit’s

“[1] templates, [2] jigs, [3] molds, [4] equipment,

[5] tools, [6] instructions, [7] guides, or [8] marketing

materials.” 27 C.F.R. § 478.12(c).

These non-exhaustive, multifactor tests make it

virtually impossible to determine whether any given

“piece of metal” is covered by the GCA. Pet. App. 39a.

For one, none of the factors are defined: for example,

“time” and “expense” are relevant, but there is no indication of how much time or how much expense triggers liability. In concrete terms, if it takes one hour

to convert an item into a functioning gun, does that

make it more likely or less likely that the agency will

classify the item as a “firearm”? There is no answer;

the agency did not want to spell out “time limits.” 87

Fed. Reg. at 24,700. What about $250 in expenses to

convert an item into a gun? Is that a lot or a little in

9

the agency’s view? Again, no answer. ATF did not

think it necessary to provide “exact definitions” for its

“expense” factor. Id. at 24,699. The same goes for

“ease,” “expertise,” “equipment,” and the like. All the

regulated public knows is that the agency considers

these factors “relevant.” It has no idea how the agency

will apply them.

Even if a party managed to divine how the agency

would apply its eight listed factors, that would only be

the start of his problems. That is because the factors

are not weighted. There is no way to analyze a kit

that can be put together quickly but at great expense,

or vice versa. There is no way to tell whether an item

is a frame if it has “jigs” and “molds,” but no “equipment” or “guides.” Worse still, the enumerated factors

are “nonexclusive.” 87 Fed. Reg. at 24,699. So even if

a party manages to figure out how the agency will apply and weight the factors, the agency can simply add

in new ones to reach a different outcome in an enforcement posture with prison time on the line.

In sum, the agency’s “multi-factor test” fails to

provide regulated parties with any of the required

“predictability and intelligibility.” LeMoyne-Owen

Coll. v. NLRB, 357 F.3d 55, 61 (D.C. Cir. 2004) (Roberts, J.). The result is that a law-abiding citizen “must

guess at what he is and is not allowed to do” under the

Rule. Pet. App. 27a.

The Government admits as much. The agency

says it deliberately chose to make its factors indiscernible to confer upon itself “flexibility” and to prevent “manufacturers” from “develop[ing] products

aimed at complying” with a clear interpretation of

“the GCA.” 87 Fed. Reg. at 24,699. In the agency’s

10

view, clarity was a problem. If ATF “provide[d] guidance” on what was covered by the GCA, the agency

explained, “persons may structure transactions to

avoid the requirements of the law.” Id. at 24,692.

Such compliance efforts, in the agency’s view, “skirt[ ]

the spirit and intent of the GCA.” Id. at 24,669. So,

rather than providing an “easily” understandable rule

explaining what is covered, the Rule instead offers a

vague sense of what “can be” covered to “deter” people

from any unlicensed gunmaking—even lawful unlicensed gunmaking. See id. at 24,686.

Judge Oldham recognized this policy for what it

was. “ATF’s rationale,” he explained, is to use “uncertainty” as “a Sword of Damocles hanging over the

heads of American gun owners.” Pet. App. 33a. By

imposing a “nebulous, impossible-to-predict Final

Rule,” the agency “hopes law-abiding Americans will

abandon” the lawful, unregulated gunmaking that is

disfavored by the Government but allowed by the

GCA. Ibid.

B. The Rule’s Unweighted, Multifactor Balancing Tests Are Not The Single, Best

Meaning Of The Gun Control Act.

The Rule’s indeterminate standards do not reflect

the “single, best meaning” of the GCA. Loper Bright,

144 S. Ct. at 2266.

The Government’s error is evident from “the text.”

Campos-Chaves v. Garland, 144 S. Ct. 1637, 1647

(2024). The agency’s paragraphs of factors appear nowhere in the statute. The Rule thus attempts to justify its byzantine multifactor tests not on the statutory language but on the “spirit and intent of the

11

GCA.” 87 Fed. Reg. at 24,669. Perhaps that analysis

would have been convincing a century ago. Cf. Holy

Trinity Church v. United States, 143 U.S. 457, 459

(1892). But today, the “text must prevail” over a purported legislative purpose. 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 259 n.6 (2009).

To be sure, the Government’s brief now tries to

cram some of the factors into the text. It says “readily”—in the phrase “readily be converted”—must include some consideration of the tools or expertise

needed for conversion. Pet. Br. 21–22. It also suggests that the terms “frame” and “receiver” are best

interpreted as considering whether a piece of metal

comes with “instructions” or certain “marketing materials.” Id. at 10–11. (Though where the agency gets

“instructions” and “marketing materials” from a word

like “frame” is never really explained.)

But even if the Government’s textual analysis

could justify the relevance of some of the Rule’s factors, it in no way justifies the Rule’s proffered application of those factors. Indeed, the Government offers

no textual defense of its methodology: a pair of unweighted, non-exhaustive multifactor balancing tests.

The GCA’s limited grant of rulemaking authority

forecloses that methodology. Under the statute, the

Attorney General “may prescribe only such rules and

regulations as are necessary to carry out the provisions of this chapter.” 18 U.S.C. § 926(a) (emphasis

added). Even if the phrase “necessary to carry out”

confers “a degree of discretion” on the agency, the

Court must still “independently interpret the statute

and effectuate the will of Congress.” Loper Bright, 144

12

S. Ct. at 2263; see Michigan, 576 U.S. at 751–54 (rejecting agency’s interpretation of “appropriate and

necessary”). “Necessary” means “convenient, or useful or conducive.” United States v. Comstock, 560 U.S.

126, 133 (2010) (cleaned). And here “necessary” modifies “to carry out” and is itself modified by “only.” So

to be a valid rulemaking exercise under § 926(a), the

Government must act only in a way that improves the

functioning of the GCA and that is consistent with

Congress’s enacted text.

Under this standard, the Rule is plainly not “necessary.” By the Government’s own admission, its multifactor tests will make it “difficult to determine”

whether a product is covered by the GCA. 87 Fed.

Reg. at 24,692. And that is no accident. The “purpose”

of the multifactor tests is not “to provide guidance so

that persons” can comply with “the law.” Id. at

24,692. Rather, they are designed to obfuscate the

meaning of statutory terms in order to “deter” the creation of products that in the agency’s view “can be”—

i.e. not necessarily are—“firearms within the meaning

of the governing law.” Id. at 24,686 (emphasis added).

An interpretation that makes it difficult to apply the

statute is not “necessary to carry out” the statute.

The textual shortcomings also reveal structural

problems with the Government’s interpretation. This

Court interprets “statute[s] as a symmetrical and coherent regulatory scheme.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (cleaned);

see Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519,

545 (2013). Here, the Rule’s intentional indeterminacy fails to “read the words Congress enacted in their

context and with a view to their place in the overall

13

statutory scheme.” Turkiye Halk Bankasi A.S. v.

United States, 598 U.S. 264, 275 (2023).

Namely, these provisions appear in the GCA—a

criminal statute. It is thus no small mistake to incorrectly ascertain the scope of the statutory text. Rather, it is a felony punishable by years behind bars,

fines, and a lifetime ban on gun ownership. See 18

U.S.C. § 924(a)(1), (g)(1). Such severe consequences

bely an interpretation that leaves people “uncertain”

about the law’s reach and that does not “provide guidance so that persons may” comply. 87 Fed. Reg. at

24,692. “Only a two-faced Congress,” In re: MCP No.

185, No. 24-7000, 2024 WL 3650468, at *6 (6th Cir.

Aug. 1, 2024) (Sutton, C.J., concurring), would pair

draconian criminal penalties with an “impossible-topredict” standard, Pet. App. 33a.

Neighboring GCA provisions confirm that the best

reading of the statute requires precision. When Congress used terms that were amenable to bright lines,

it provided them. A “short-barreled shotgun” must

have a barrel “less than eighteen inches in length” or

“an overall length of less than twenty-six inches.” 18

U.S.C. § 921(a)(6); see also id. § 921(a)(8) (similar for

“short-barreled rifle”). A gun is an “antique firearm”

if it was “manufactured in or before 1898.” Id.

§ 921(a)(16)(A). “Armor piercing ammunition” must

use enumerated metals or be “larger than .22 caliber”

with a “jacket” that “has a weight of more than 25 percent of the total weight of the projectile.” Id.

§ 921(a)(17)(B). Although aspects of these provisions

may still present ambiguities, the point is that Congress recognized it would be unjust to criminalize possession of specific guns without clearly defining those

14

guns to the extent possible. The structural import is

that when the agency issues rules “necessary to carry

out” the statute, the best reading of both that rulemaking authority and the underlying terms is one

that clearly delineates the scope of the statute.

The legislative history confirms that indiscernible

multifactor tests are not the best reading of the GCA.

When Congress enacted the GCA, there was a rich

“tradition of at-home gun-making” that “predates this

nation’s founding, extends through the revolution,

and reaches modern times.” Pet. App. 8a. Thus, “the

federal government has never required a license to

build a firearm for personal use.” Ibid. Undoubtedly

aware of this centuries-old tradition when it enacted

the GCA, Congress clarified that its law was “not intended to discourage or eliminate the private ownership or use of firearms by law-abiding citizens for lawful purposes.” Pub. L. No. 90-618, Title I, § 101, 82

Stat. 1213, 1214 (Oct. 22, 1968) (emphasis added). A

“subjective multi-factor test” that spawns “ambiguity

and vagueness,” Pet. App. 24a n.19, will plainly “discourage” and may “eliminate” the lawful gunmaking

activities of law-abiding citizens—directly contrary to

Congress’s statutory statement of purpose.

Not only do the Government’s multifactor tests

have no basis in the text, structure, and purpose, they

also violate the presumption “that, when Congress enacts statutes, it is aware of relevant judicial precedent” and does not impliedly “intend[ ] to depart from

[those] precedents.” Ryan v. Gonzales, 568 U.S. 57, 66

(2013); see also Rowland v. Cal. Men’s Colony, Unit II

Men’s Advisory Council, 506 U.S. 194, 201 (1993).

First, take fair notice. This Court has long held

15

that “a statute which … forbids … an act in terms so

vague that men of common intelligence must necessarily guess at its meaning … violates the first essential of due process of law.” Connally v. Gen. Constr.

Co., 269 U.S. 385, 391, (1926). That is, the Government “must give fair notice of conduct that is forbidden or required.” FCC v. Fox Television Stations, Inc.,

567 U.S. 239, 253 (2012). These principles apply with

special force in the criminal context. See infra. Even

when the Government has multiple “options for how

to read” a statute, it may not choose an option that

would not result in “any remotely clear lines.” Snyder

v. United States, 144 S. Ct. 1947, 1957–58 (2024) (rejecting Government’s interpretation over “lack of fair

notice”).

The Rule’s interpretation of the GCA violates

these fair-notice precedents. It expressly withholds

notice of the statute’s scope in order to preserve

agency “flexibility,” 87 Fed. Reg. at 24,668, and to “deter” even lawful unlicensed gunmaking, see id. at

24,686. An interpretation of a criminal statute that

wields “uncertainty” as a deterrent, Pet. App. 33a,

raises serious constitutional concerns and would thus

require “clear statutory language,” FBI v. Fazaga, 595

U.S. 344, 355 (2022). But the text here—“readily,”

“frame,” “receiver,” and “necessary”—offers no clear

statement to justify the agency’s constitutionally-dubious multifactor tests.2

The Government says the terms being interpreted “appear[ ]

in the Act itself, and [no one] suggests that the Act is unconstitutionally vague.” Pet. Br. 48. But even if the statute is not unconstitutionally vague, but see Peoples Rts. Org., Inc. v. City of

[Footnote continued on next page]

2

16

The Government’s interpretation also fails to comport with this Court’s teachings on the Second Amendment. The Constitution guarantees Americans “an individual right” to gun ownership. District of Columbia

v. Heller, 554 U.S. 570, 595 (2008). Thus, the Rule’s

indeterminate interpretation of the GCA raises “special” concerns because it combines a “vague” standard

with “criminal sanctions” to create an “obvious

chilling effect” on a constitutional right. See Reno v.

ACLU, 521 U.S. 844, 871–72 (1997). Indeed, as Judge

Oldham explained below, no gun is safe. The AR-15—

“the most popular rifle in America”—could theoretically “be converted to a machine gun using cheap,

flimsy pieces of metal—including coat hangers.” Pet.

App. 52a. Under the agency’s indeterminate standard, “millions and millions” of lawful gun owners

could “be felons-in-waiting.” Ibid. “When legislation

and the Constitution brush up against each other,”

this Court “seek[s] harmony, not to manufacture conflict.” United States v. Hansen, 599 U.S. 762, 781

(2023). The potential for such conflict here confirms

that a vague, multifactor balancing test is not the best

reading of the GCA.

In sum, the text, structure, legislative context,

and substantive canons confirm that the single, best

meaning of the GCA is not an indiscernible, unweighted, and non-exhaustive multifactor balancing

Columbus, 152 F.3d 522, 537 (6th Cir. 1998), that is no answer

to the claim asserted. It “is the text of the Final Rule, not the

text of the statute, which falls short of the Due Process Clause.”

Pet. App. 54a–55a & n.8. It was ATF—not Congress—that chose

to use an amorphous multifactor balancing test to intentionally

obscure the scope of the GCA as a deterrence mechanism.

17

test.

II. LENITY

FORECLOSES

THE

GOVERNMENT’S INTERPRETATIONS.

The Government’s interpretation of the GCA cannot survive ordinary de novo review under Loper

Bright. See supra. But even if it could, the rule of

lenity would require rejection of the Government’s capacious and indeterminate reading of a criminal statute.

A. Under The Separation Of Powers, Only

Congress May Make An Act A Crime.

The Framers believed the “separate and distinct

exercise of the different powers of government” is “essential to the preservation of liberty.” The Federalist

No. 51, at 321 (James Madison or Alexander Hamilton) (Clinton Rossiter ed., 1961). They warned that

the “accumulation of all powers, legislative, executive,

and judiciary, in the same hands” is “the very definition of tyranny.” The Federalist No. 47, at 301 (James

Madison) (Clinton Rossiter ed., 1961).

Thus, our constitutional system delineates specific roles for each branch of the federal government.

“Only the people’s elected representatives in the legislature are authorized to ‘make an act a crime.’” Davis, 588 U.S. at 451. The executive, for its part, may

“decide whether to prosecute a case,” United States v.

Nixon, 418 U.S. 683, 693 (1974) (citing The Confiscation Cases, 74 U.S. (7 Wall) 454 (1868)), but cannot

create administrative crimes, United States v. George,

228 U.S. 14, 22 (1913). Finally, when the executive

prosecutes a case under a law enacted by Congress,

18

the judiciary must “say what the law is,” Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 177 (1803), including

by holding the executive to account when “the Government interprets a criminal statute too broadly,”

Abramski v. United States, 573 U.S. 169, 191 (2014).

Because the Framers reserved the criminal lawmaking function to Congress—not the judiciary or the

executive—it must speak “plainly and unmistakably”

where it wishes to attach criminal liability to an activity. Bass, 404 U.S. at 348 (citations and quotations

omitted); see also Davis, 588 U.S. at 451. This “clearstatement rule” “reinforces” the “fundamental separation-of-powers principle” that “[t]he Constitution allows only Congress to create crimes.” Gun Owners of

Am., Inc. v. Garland, 19 F.4th 890, 917–18 (6th Cir.

2021) (“Gun Owners II”) (Murphy, J., dissenting);

Guedes v. ATF, 920 F.3d 1, 41–42 (D.C. Cir. 2019)

(Henderson, J., concurring in part and dissenting in

part). It also “embodies ‘the instinctive distastes

against men languishing in prison unless the lawmaker has clearly said they should.’” Bass, 404 U.S.

at 348.

Under these principles, the Constitution will not

tolerate ambiguity in penal statutes. As Chief Justice

Marshall explained long ago, “probability is not a

guide which a court, in construing a penal statute, can

safely take.” United States v. Wiltberger, 18 U.S. (5

Wheat.) 76, 105 (1820).

B. The Rule Of Lenity Prevents The Executive From Defining New Crimes Through

Rulemaking.

The “‘rule of lenity’ is a new name for an old idea—

19

the notion that ‘penal laws should be construed

strictly.’” Wooden v. United States, 595 U.S. 360, 388

(2022) (Gorsuch, J., concurring) (quoting The Adventure, 1 F.Cas. 202, 204 (No. 93) (CC Va. 1812) (Marshall, C. J.)). Under lenity, the Court will “resolve

[statutory] ambiguity in [a defendant]’s favor” unless

“the Government’s position is unambiguously correct.” Granderson, 511 U.S. at 54 (citing Bass, 404

U.S. at 347–49). Lenity safeguards the “principle that

the power of punishment is vested in the legislative”

branch. Wiltberger, 18 U. S. (5 Wheat.) at 95 (Marshall, C.J.).

Though it arose in the context of criminal prosecutions, lenity applies where, as here, a statute carrying criminal penalties is construed in a civil setting.

This Court’s decision in United States v. Thompson/Center Arms Co., 504 U.S. 505 (1992), makes that

clear. There, as here, the Court was called to review

ATF’s interpretation of a gun-control statute “in a civil

setting.” 504 U.S. at 517. The question was whether

a gun manufacturer “makes” a regulated short-barreled rifle when it sells “a pistol together with a kit

containing a shoulder stock and a 21-inch barrel, permitting the pistol’s conversion into an unregulated

long-barreled rifle, or, if the pistol’s barrel is left on

the gun, a short-barreled rifle that is regulated.” Id.

at 507. The plurality found the term “make,” 26

U.S.C. § 5845(i), ambiguous because of the dual-use

nature of the parts kit. Thompson, 504 U.S. at 512–

18. Given the ambiguity presented by the kit’s additional “useful purpose” that would not incur criminal

liability, the plurality held that the parts had “not

been ‘made’ into a short-barreled rifle for purposes of

the” National Firearms Act. Id. at 518. Justices

20

Scalia and Thomas concurred and found ambiguity

elsewhere: “whether the making of a regulated firearm includes the manufacture, without assembly, of

component parts.” Id. at 519. Because this question

was “sufficiently ambiguous to trigger the rule of lenity,” the concurring opinion agreed “that the kit is not

covered.” Ibid.

In Leocal v. Ashcroft, 543 U.S. 1 (2004), a unanimous Court cited Thompson as authority that it must

apply lenity when interpreting criminal statutes in a

civil setting. There, the Court considered whether a

conviction for driving under the influence of alcohol

was a “crime of violence” under the Comprehensive

Crime Control Act. 543 U.S. at 6–7. Although the interpretive issue arose “in the deportation context,” the

Court recognized that it “must interpret the statute

consistently, whether [it] encounter[s] its application

in a criminal or noncriminal context.” Id. at 11 n.8

(citing Thompson, 504 U.S. at 517–18). Thus, the

Court explained, if the statute was ambiguous, it

“would be constrained to interpret any ambiguity in

[the challenger]’s favor” under “the rule of lenity.”

Ibid.

In addition to maintaining consistency, lenity respects the roles of the coordinate branches. In a criminal prosecution, lenity restrains the judicial and executive branches alike—that is, the rule prevents

courts and prosecutors from reading statutes broadly

to capture activity they believe Congress ought to

have proscribed. See Bass, 404 U.S. at 348 (“legislatures and not courts should define criminal activity”);

Crandon v. United States, 494 U.S. 152, 178 (1990)

(Scalia, J., concurring) (“the Justice Department …

21

knows … an erroneously broad view will be corrected

by the courts when prosecutions are brought”). Because the basis for that restraint is Congress’s authority to make the criminal law, there is no reason it

should be different when the executive interprets that

law through rulemaking.

To hold otherwise would be to privilege the executive interpretation over judicial interpretation—applying lenity to judicial construction but not executive

construction of a statute. But “[r]ules of interpretation bind all interpreters, administrative agencies included.” Carter v. Welles-Bowen Realty, Inc., 736 F.3d

722, 731 (6th Cir. 2013) (Sutton, J., concurring).

“That means an agency, no less than a court, must interpret a doubtful criminal statute in favor of the defendant.” Ibid. Indeed, a rule that allowed agencies

to interpret criminal statutes more broadly than

courts would violate this Court’s teaching that “the reviewing court—not the agency whose action it reviews—is to decide all relevant questions of law.”

Loper Bright, 144 S. Ct. at 2265 (cleaned) (emphasis

altered). Thus, just as lenity protects Congress’s prerogative in a criminal prosecution, so too in administrative rulemakings.

Both considerations are at work here. This case,

just like Thompson and Leocal, calls for the interpretation of a criminal statute in a civil context—if ATF’s

rule is upheld, then anyone possessing a forbidden

piece of metal or proscribed set of parts faces years in

prison. And just as the rule of lenity would constrain

a court’s interpretation in a criminal prosecution, so

too it must constrain an identical interpretation advanced in an administrative rulemaking. Thus, if the

22

statute is ambiguous, then lenity requires construing

the statute in Respondents’ favor.

C. Lenity Precludes The Government’s

Amorphous Interpretation Of A Criminal Statute.

Lenity forecloses interpreting the GCA to require

a pair of vague, unweighted, non-exhaustive multifactor balancing tests.

To begin, the Government’s interpretation is not

the unambiguous import of the GCA. The relevant

phrases are “frame or receiver,” 18 U.S.C.

§ 921(a)(3)(B), and “readily be converted,” id.

§ 921(a)(3)(A). And ATF may issue “only” rules that

are “necessary to carry out” the GCA. Id. § 926(a). As

explained above, this text forecloses an interpretation

that would require amorphous, multifactor balancing

tests to assess the scope of the statute. But, at minimum, the GCA does not unambiguously compel the

agency’s vague standards.

First, take “frame or receiver.” For over 40 years,

ATF interpreted “frame or receiver” with a precise

technical definition: “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 tracked the common understanding of these terms. Pet. App. 15a–16a & n.12. It

was also issued much closer in time to the “enactment

of the statute,” and “remained consistent over time.”

Loper Bright, 144 S. Ct. at 2258. Courts recognized

this definition was “not difficult to understand” and

23

provided “unambiguous[ ]” guidance about what products fell “within the scope of … the GCA.” See, e.g.,

United States v. Rowold, 429 F. Supp. 3d 469, 473

(N.D. Ohio 2019). The agency’s previous definition

shows that the statute does not unambiguously require a broad, amorphous balancing test to ascertain

whether an item is a “frame” or a “receiver.”

“Readily be converted” is also amenable to a narrower, more precise definition. At minimum, Respondents and the Fifth Circuit are correct that this

phrase is best read to categorically exclude parts

kits—given the express reference to “parts” elsewhere

in the GCA and in a since-repealed definition of “firearm.” Pet. App. 19a–28a; see Rudisill v. McDonough,

601 U.S. 294, 308 (2024) (“differences in language like

this convey differences in meaning”) (cleaned). And

more generally, the agency could better “carry out” the

statute, see 18 U.S.C. § 926(a), through an interpretation that sets specific, numeric thresholds, cf. City of

Arlington v. FCC, 569 U.S. 290, 294–95 (2013) (upholding agency’s quantitative interpretation of “reasonable period of time” where it was expressly delegated “authority to implement” the provision). For example, instead of interpreting “readily” to mean that

“time” is merely “relevant,” 87 Fed. Reg. at 24,735, the

agency could more narrowly and precisely interpret

the statute to include “a range of” times, see Tripoli

Rocketry Ass’n, Inc. v. ATF, 437 F.3d 75, 81 (D.C. Cir.

2006); accord United States v. 16,179 Molso Italian .22

Caliber Winler Derringer Convertible Starter Guns,

443 F.2d 463, 465 (2d Cir. 1971) (finding covered items

that “could be converted to shoot live ammunition

within three to twelve minutes”). Thus, the agency’s

24

amorphous standards are not unambiguously mandated by the statutory text.

These viable competing interpretations of the

GCA confirm that lenity applies in this case. Lenity

comes into play where a statute is susceptible to at

least “two readings of what conduct Congress has

made a crime.” Bass, 404 U.S. at 347; see also Granderson, 511 U.S. at 41 (applying lenity where text was

“susceptible” to multiple “interpretations”). That is

because the existence of multiple viable interpretations shows the statute is not “unambiguous with regard to the point at issue.” Smiley v. Citibank (S. Dakota), N.A., 517 U.S. 735, 739 (1996).

Lenity thus requires rejection of the Government’s interpretations. The Government’s multifactor tests are not the narrowest reading of the criminal

statute. Quite the opposite. The Government adopted

its indeterminate “multi-factor analysis” to preserve

agency “flexibility” and “prevent[ ] … manufacturers

from developing products aimed at complying” with a

“narrow interpretation” that “skirt[s] the spirit and

intent of the GCA.” 87 Fed. Reg. at 24,669. It was

“not the purpose of the rule to provide guidance” on

the scope of the GCA. Id. at 24,692. A rule that maximizes agency discretion, eschews a “narrow interpretation,” and disclaims notice to the public is plainly

not the narrowest interpretation of a criminal statute.

The Government’s brief fails to refute lenity. It

asks this Court to apply an “anti-circumvention principle[ ]” to maximize the statute’s reach to avoid “evasion of the law.” Pet. Br. 41–45. But that “position

turns the rule of lenity upside down.” See United

States v. Santos, 553 U.S. 507, 519 (2008) (plurality).

25

The Government may not resolve ambiguity through

the invocation of a “presumptive intent to facilitate

[GCA] prosecutions.” Ibid. And, in all events, the

Government’s logic is flawed. One cannot “evade” the

law until its meaning is discerned. By putting the cart

(evasion) before the horse (meaning), the Government

assumes its own conclusion: the GCA must include

parts kits to avoid evasion of the GCA’s regulation of

parts kits. And finally, “[t]hat the regulated parties

wish to see more specific [requirements] does not

mean they wish to skirt or circumvent the law, as ATF

insinuates.” FRAC, 2024 WL 3737366, at *9. Rather,

they “may simply wish to comply with the law by producing” items that are not subject to the GCA. Ibid.

Lenity requires rejection of the Government’s

maximalist reading of a criminal statute.

III. THE RULE IS PART OF A DISTURBING

TREND

BY

ATF

TO

DETER

GUN

OWNERSHIP

THROUGH

VAGUE,

OVERINCLUSIVE REGULATIONS.

The Rule’s vague multifactor balancing tests are

no fluke. They are part of a disturbing pattern in

which ATF puts legal guns and gun accessories in regulatory purgatory by issuing “interpretations” of federal firearms statutes that require amorphous, subjective analyses the agency is then free to apply broadly.

By refusing to offer any concrete guidance on what

gun products carry “ruinous felony” penalties, the

agency uses “uncertainty” as “a Sword of Damocles” to

deter even lawful gun ownership with “impossible-topredict” regulatory standards. Pet. App. 33a.

The approach follows an insidious logic.

ATF

26

knows that this Court will find that the agency “exceeded its statutory authority” when it speaks clearly

about its unlawful interpretations. See, e.g., Garland

v. Cargill, 602 U.S. 406, 415 (2024). But by claiming

a mushy “qualitative” analysis that vests the agency

with unbounded discretion, Pet. Br. 48, perhaps the

courts will not see the agency’s rules for what they

are: naked power grabs.

Consider the agency’s recent rule on pistol braces.

See Factoring Criteria for Firearms With Attached

“Stabilizing Braces,” 88 Fed. Reg. 6478 (Jan. 31,

2023). Pistol braces are “orthotic devices that attach

to the rear of a firearm” to help individuals “fire heavy

pistols safely and comfortably.” FRAC, 2024 WL

3737366, at *2 (cleaned). ATF for years considered

braces beyond the purview of restrictive firearms statutes, resulting in “millions” of unregistered “braces in

circulation.” Id. at *4. But then the agency issued a

rule that purported to evaluate the classification of

braces with a “multifactor framework.” Ibid. That

framework, like the one here, failed to offer any “identifiable metric[s] that members of the public can use

to assess whether their weapon falls within the Final

Rule’s” ambit. Id. at *8. As a result, the agency’s test

“articulated no standard whatsoever” and allowed

“ATF to reach whatever result it wants.” Id. at *9,

*11. Under the guise of a qualitative analysis, the

agency could clandestinely achieve its substantive

goal: regulating “99% of braced weapons” and subjecting millions of Americans to potential felony prosecutions. Id. at *9. That rule was rightfully recognized

as unlawful by both courts of appeals that reviewed it.

See id. at *7–*13; see also Mock, 75 F.4th at 578–88.

27

ATF subjected muzzle brakes to a similar treatment. A muzzle brake is an accessory “used to reduce

recoil by redirecting combustion gases created from

discharging a firearm.” Innovator Enters., Inc. v.

Jones, 28 F. Supp. 3d 14, 18 (D.D.C. 2014) (quotation

omitted). ATF took the position that some muzzle

brakes functioned as heavily-regulated “firearm silencers” under the GCA and the National Firearms

Act. Id. at 18. But rather than setting clear rules for

when this felony-backed regulation kicked in, the

agency directed parties to “a list of six characteristics

that are allegedly common to ‘known silencers.’” Id.

at 25. The agency did not say whether its list was exhaustive, nor did it specify how many characteristics

in common were “enough” to trigger scrutiny. Ibid.

Thus, the “agency’s approach” left “regulated parties”

“guessing” at the legality of their products. Ibid. That

methodology was rightfully “set aside.” Id. at 26.

It is the same story with hobby-rocket fuel. ATF

classified a “commonly used” “fuel in hobby rockets”

as a heavily-regulated “explosive.” Tripoli Rocketry

Ass’n, 437 F.3d at 76. To make this determination,

the agency told parties it looked at “the speed at which

the material burns.” Id. at 77. So one might think

ATF would just tell parties the burn speed that qualifies as an explosive. Not so. The agency instead said

that the hobby-rocket fuel qualified as an explosive

because it burned “much faster” than other materials.

Id. at 81. But the agency “never” identified the burn

speed of the other materials, which is of course “necessary to make a comparison.” Id. at 82. Once again,

the agency, in reality, offered “no standard whatsoever for determining when a material” was regulated.

Id. at 84. That methodology was rightly rejected in

28

court. Ibid.

ATF’s analysis in this case is just like these prior

unlawful actions. Just as it did with pistol braces,

muzzle brakes, and hobby-rocket fuel, the agency purports to subject parts kits to “a qualitative standard.”

Pet. Br. 48. The standard lists “factors relevant” to its

analysis, id. at 9, but fails to explain “which factors

are significant and which less so, and why.” LeMoyneOwen, 357 F.3d at 61. In other words, the Government’s “totality-of-the-circumstances test” is “not a

test at all but merely [an] assertion of an intent to perform test-free, ad hoc, case-by-case evaluation.” Am.

Broad. Cos. v. Aereo, Inc., 573 U.S. 431, 461 (2014)

(Scalia, J., dissenting). Just as courts recognized in

these prior instances, the Rule here is likewise unlawful.

This Court should not allow ATF to continue using

its regulatory authority to render it “nigh impossible

for a regular citizen to determine” their obligations

under federal firearms statutes. FRAC, 2024 WL

3737366, at *11 (quotations omitted).

29

CONCLUSION

This Court should affirm.

Respectfully submitted.

STEPHEN J. OBERMEIER

Counsel of Record

JEREMY J. BROGGI

MICHAEL D. FAUCETTE

BOYD GARRIOTT

WILEY REIN LLP

2050 M Street NW

Washington, DC 20036

(202) 719-7000

SObermeier@wiley.law

Counsel for Amici Curiae

August 20, 2024