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

Supreme Court briefAug 20, 2024

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No. 23-852

In the Supreme Court of the United States

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

Petitioners,

JENNIFER VANDERSTOK, ET AL.,

Respondents.

On Writ of Certiorari to

the United States Court of Appeals

for the Fifth Circuit

BRIEF FOR AMICUS CURIAE

NATIONAL SHOOTING SPORTS

FOUNDATION, INC. IN SUPPORT OF

RESPONDENTS AND AFFIRMANCE

LAWRENCE G. KEANE

SHELBY BAIRD SMITH

NATIONAL SHOOTING

SPORTS FOUNDATION, INC.

400 N. Capitol Street NW

Suite 475

Washington, DC 20001

H. CHRISTOPHER BARTOLOMUCCI

Counsel of Record

KENNETH A. KLUKOWSKI

SCHAERR | JAFFE LLP

1717 K Street NW

Suite 900

Washington, DC 20006

(202) 787-1060

cbartolomucci@schaerr-jaffe.com

STEPHEN P. HALBROOK

3925 Chain Bridge Road

Suite 403

Fairfax, VA 22030

Counsel for Amicus Curiae

AUGUST 20, 2024

QUESTION PRESENTED

In this brief, Amicus Curiae will focus on the

second question presented in this case:

Whether “a partially complete, disassembled, or

nonfunctional frame or receiver” that is “designed

to or may readily be completed, assembled,

restored, or otherwise converted to function as a

frame or receiver,” 27 C.F.R. 478.12(c), is a “frame

or receiver” regulated by the Act.

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iv

INTRODUCTION AND INTEREST OF

AMICUS CURIAE ................................................... 1

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ................................................................ 8

II.

Statutory

History

Confirms

the

Meanings of “Firearm” and “Frame or

Receiver.” ........................................................ 8

Origins of the Federal Firearms Act ...... 9

Legislation changing “part or parts”

to “frame or receiver” ............................ 12

Congress refuses to delegate the

power to criminalize violations of

law to firearm regulators. ..................... 13

“Firearm” and “frame or receiver”

under the GCA ...................................... 15

FOPA reduced ATF’s regulatory

power and retained the definition of

“frame or receiver.” ............................... 18

ATF’s Regulatory Overreach Will Impose

Significant Compliance Burdens on

Businesses in the Firearms Industry. ......... 20

iii

ATF jettisoned the dictionary and

adopted a hopelessly vague standard

for “partially complete” and readily

“converted” frames and receivers. ........ 20

ATF’s

unlawful

rejection

commonsense definitions imposes

immense burdens and costs on

business. ................................................ 24

III. The Canon of Constitutional Doubt and

Rule of Lenity Provide Further Support

for Respondents’ Interpretation. .................. 28

The canon of constitutional doubt ........ 28

The rule of lenity ................................... 31

CONCLUSION .......................................................... 33

TABLE OF AUTHORITIES

Cases

Page(s)

Abramski v. United States,

573 U.S. 169 (2014) ................................................ 33

Apex Hosiery Co. v. Leader,

310 U.S. 469 (1940) ................................................ 19

Arnold v. United States,

13 U.S. 104 (1815) .................................................. 32

Bittner v. United States,

598 U.S. 85 (2023) .................................................. 32

Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837 (1984) ......................... 29

Citizens United v. FEC,

558 U.S. 310 (2010) ................................................ 30

District of Columbia v. Heller,

554 U.S. 570 (2008) ................................................ 30

Edward J. DeBartolo Corp. v. Florida Gulf

Coast Bldg. & Constr. Trades Council,

485 U.S. 568 (1988) ................................................ 28

Firearms Regul. Accountability Coal., Inc.

v. Garland, -- F.4th --, 2024 WL 3737366

(8th Cir. Aug. 9, 2024) ........................................... 25

Fischer v. United States,

144 S. Ct. 2176 (2024) .............................................. 8

Garland v. Cargill,

602 U.S. 406 (2024) .......................................... 20, 25

Jennings v. Rodriguez,

583 U.S. 281 (2018) ................................................ 29

Leocal v. Ashcroft,

543 U.S. 1 (2004) .................................................... 32

Liparota v. United States,

471 U.S. 419 (1985) ................................................ 32

Loper Bright Enters. v. Raimondo,

144 S. Ct. 2244 (2024) .................................. 7, 18, 29

McDonald v. City of Chicago,

561 U.S. 742 (2010) ................................................ 30

Mont v. United States,

587 U.S. 514 (2019) ................................................ 10

National Cable & Telecomms. Ass’n

v. Brand X Internet Srvcs.,

545 U.S. 967 (2005) ................................................ 22

New York State Rifle & Pistol

Ass’n, Inc. v. Bruen,

597 U.S. 1 (2022) ................................................ 8, 31

Pereira v. Sessions,

585 U.S. 198 (2018) .................................................. 3

Sackett v. EPA,

598 U.S. 651 (2023) ................................................ 33

Snyder v. United States,

144 S. Ct. 1947 (2024) .............................................. 8

Solid Waste Agency of N. Cook Cnty.

v. U.S. Army Corps of Eng’rs,

531 U.S. 159 (2001) ................................................ 29

United States v. Apel,

571 U.S. 359 (2014) ................................................ 33

United States v. Jin Fuey Moy,

241 U.S. 394 (1916) ................................................ 29

United States v. Lauchli,

371 F.2d 303 (7th Cir. 1966) .................................. 11

United States v. Rutherford,

442 U.S. 544 (1979) ................................................ 19

United States v. Thompson/Ctr. Arms Co.,

504 U.S. 505 (1992) ................................................ 32

United States v. Wiltberger,

18 U.S. 76 (1820) .................................................... 32

Utility Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) ................................................ 20

West Virginia v. EPA,

597 U.S. 697 (2022) ................................................ 20

Whitman v. United States,

574 U.S. 1003 (2014) .............................................. 32

Wisconsin Cent. Ltd. v. United States,

585 U.S. 274 (2018) ................................................ 20

Statutes

6 U.S.C. § 531 ............................................................ 10

15 U.S.C. § 901 (1938) ................................................. 9

15 U.S.C. § 905 (1938) ............................................... 10

15 U.S.C. § 907 (1938) ............................................... 10

18 U.S.C. § 921 ...................... 4, 5, 8, 19, 21, 22, 26, 31

vii

18 U.S.C. § 923 .................................................... 27, 28

18 U.S.C. § 924 .......................................................... 32

18 U.S.C. § 926 .................................................... 18, 21

26 U.S.C. § 5845 ........................................................ 25

Act of October 3, 1961,

Pub. L. No. 87-342, 75 Stat. 757.............................. 9

Bipartisan Safer Communities Act,

Pub. L. No. 117-159, 136 Stat. 1313 (2022) .......... 19

Brady Handgun Violence Prevention Act,

Pub. L. No. 103-159, 107 Stat. 1536 (1993) .......... 19

Federal Firearms Act,

Pub. L. No. 75-785, 52 Stat. 1250 (1938) ...... 4, 9, 10

Firearms Owners’ Protection Act,

Pub. L. No. 99-308, 100 Stat. 449 (1986) ...... 5, 9, 18

Gun Control Act of 1968,

Pub. L. No. 90-618, 82 Stat. 1213........ 2, 5, 8, 14, 15

Homeland Security Act of 2002,

Pub. L. No. 107-296, 116 Stat. 2135...................... 10

National Firearms Act,

Pub. L. No. 73-474, 48 Stat. 1236 (1934) ............ 4, 8

Omnibus Crime Control and Safe

Streets Act of 1968,

Pub. L. No. 90-351, 82 Stat. 197...................... 14, 21

Public Safety & Recreational Firearms

Use Protection Act, Pub. L. No. 103-322,

108 Stat. 1796 (1994) ............................................. 19

viii

Regulations

4 Fed. Reg. 1903 (May 5, 1939) ................................. 10

13 Fed. Reg. 4383 (July 30, 1948) ............................. 10

23 Fed. Reg. 343 (Jan. 18, 1958) ............................... 12

26 C.F.R. § 177.50 (1958) .......................................... 12

26 C.F.R. § 315.10 (1939) .......................................... 10

26 C.F.R. § 315.10 (1948) .......................................... 10

27 C.F.R. § 478........................................................... 25

27 C.F.R. § 478.11...................................................... 21

27 C.F.R. § 478.12................................................... i, 21

27 C.F.R. § 478.123.................................................... 24

27 C.F.R. § 478.129.................................................... 28

27 C.F.R. § 478.50...................................................... 28

27 C.F.R. § 478.92.......................................... 23, 26, 27

27 C.F.R. § 479........................................................... 25

27 C.F.R. § 479.102.................................................... 26

28 C.F.R. § 0.130........................................................ 21

Definition of “Frame or Receiver”

and Identification of Firearms,

87 Fed. Reg. 24,652

(Apr. 26, 2022) .................... 21, 22, 23, 24, 26, 27, 28

Factoring Criteria for Firearms

with Attached “Stabilizing Braces”,

88 Fed. Reg. 6,478 (Jan. 31, 2023) ........................ 25

Final Rule, Commerce in Firearms

and Ammunition, 33 Fed. Reg. 18,555

(Dec. 14, 1968) ............................................ 15, 17, 21

Notice of Proposed Rulemaking,

Commerce in Firearms and Ammunition,

33 Fed. Reg. 16,285 (Nov. 6, 1968) .................. 15, 16

Title and Definition Changes,

43 Fed. Reg. 13,531 (Mar. 31, 1978)...................... 15

Treatises

Stephen P. Halbrook,

Firearms Law Deskbook § 6:9

(Oct. 2023 Update) ................................................... 2

Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of

Legal Texts (2012) ............................................ 28, 33

Other Authorities

114 Cong. Rec. 14,792 (May 23, 1968) ...................... 14

Br. for NSSF as Amicus Curiae,

Loper Bright Enters. v. Raimondo,

144 S. Ct. 2244 (2024) (No. 22-451)....................... 30

Abbe R. Gluck & Lisa S. Bressman,

Statutory Interpretation from the

Inside—An Empirical Study of

Congressional Drafting, Delegation,

and the Canons: Part I,

65 Stan. L. Rev. 901 (2013) ................................... 29

Stephen P. Halbrook,

The Meaning of ‘Firearm’ and ‘Frame or

Receiver’ in the Federal Gun Control Act:

The ATF’s 2022 Final Rule in Light of

Text, Precedent, and History, SSRN

(Aug. 17, 2024) ....................................................... 19

Investigation of Juvenile Delinquency

in the United States: Hearings on

S. Res. 63 Before the Subcomm. to

Investigate Juvenile Delinquency of

the S. Comm. on the Judiciary,

88th Cong. (1963) ............................................. 12, 13

Chester Mueller & John Olson,

Small Arms Lexicon and Concise

Encyclopedia (1968) ............................................... 16

Rev. Rul. 55-175, 1955-1 C.B. 562,

1955 WL 10177 ...................................................... 11

S. 917, 90th Cong. (1968) .......................................... 13

S. Rep. No. 89-1866 (1966) ........................................ 13

S. Rep. No. 90-1097 (1968),

as reprinted in 1968 U.S.C.C.A.N. 2112 ............... 13

Sporting Arms & Ammunition Mfrs.’ Inst.,

Statement Suggesting Modifications to

Proposed Regulations (26 C.F.R. Part 178)

Under the Gun Control Act of 1968

(Nov. 21, 1968) ....................................................... 17

Tr. of Proceedings, Dep’t of Treasury, IRS,

Determining the Suitability of Proposed

Regulations to Implement Recently Enacted

Legislation Concerned with Federal

Regulation of Commerce in Firearms and

Ammunition (Nov. 21, 1968) ................................. 17

U.S. Dep’t of Treasury,

Comments and Suggested Changes

on Section 1(3) of Subcomm. Draft,

Technical Memorandum Re Draft of

Proposed Bill to Amend the Federal

Firearms Act (Mar. 18, 1963) ................................ 13

INTRODUCTION AND

INTEREST OF AMICUS CURIAE 1

National Shooting Sports Foundation, Inc.

(NSSF) is the trade association of the firearm,

ammunition, hunting, and shooting sports industry.

Founded in 1961, NSSF has approximately 10,500

members, including federally licensed firearm and

ammunition

manufacturers,

distributors,

and

retailers, as well as manufacturers, distributors, and

retailers of products for the hunting, shooting, and

self-defense markets, public and private shooting

ranges, gun clubs, and sportsmen’s organizations, in

addition to individual hunters and recreational target

shooters. NSSF’s mission is to promote, protect, and

preserve hunting and the shooting sports.

As in this case, NSSF submits amicus briefs

addressing legal issues that affect its members and the

industry. See, e.g., Br. for NSSF as Amicus Curiae,

Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244

(2024) (No. 22-451); Br. for Amicus Curiae NSSF,

VanDerStok v. Garland, 86 F.4th 179 (5th Cir. 2023)

(No. 23-10718), ECF No. 146. NSSF also submitted

comments to the Bureau of Alcohol, Tobacco, Firearms

and Explosives (ATF) on its proposed rule. See Ltr. of

Lawrence G. Keane, Sec’y & Gen. Counsel, NSSF, to

Marvin Richardson, Acting Dir., ATF, Docket No. ATF

1 Pursuant to this Court’s Rule 37.6, Amicus Curiae states that

no counsel for any party authored this brief in whole or in part

and that no person or entity, other than Amicus Curiae, its

members, or its counsel, made a monetary contribution toward

the preparation or submission of this brief.

2021R-05 (Aug. 18, 2021), available at https://

tinyurl.com/4a5cts8j.

NSSF submits this brief to present its views on

ATF’s expansive redefinition of “frame or receiver” as

defined in the Gun Control Act of 1968 (GCA). For

decades, ATF interpreted the GCA’s clear definition of

“frame or receiver” to not encompass an untold

number of products—including “partially complete”

frames or receivers—that could be “converted” into a

frame or receiver. NSSF’s members have long relied

upon that interpretation to comply with the plethora

of attendant regulations governing frames or

receivers. But ATF upended that settled definition to

include “partially complete” products that may become

“frames or receivers” in contravention of the GCA’s

plain statutory text. As a result, ATF’s regulatory

overreach will impose significant costs and compliance

burdens on industry members. What is more, failure

to divine the magical point at which a product can be

“converted to function as a frame or receiver” risks

criminal penalties.

It is common sense that a precursor to a frame is

not a frame, and a precursor to a receiver is not a

receiver. “In ordinary nomenclature, a frame or

receiver is a finished part which is capable of being

assembled with the other parts to put together a

firearm.

Raw material which is only partially

machined requires further fabrication.” Stephen P.

Halbrook, Firearms Law Deskbook § 6:9 (Oct. 2023

Update) (footnote omitted).

Concluding that a potential frame or receiver does

not qualify as a frame or receiver does not require any

expertise in firearms because the GCA’s definition is

unequivocal. It may be, as Justice Alito has said, that

“a person who sees an old Chevy with three wheels in

a junkyard would still call it a car.” Pereira v.

Sessions, 585 U.S. 198, 231 (2018) (Alito, J.,

dissenting). But if a statute defined a car to include

its chassis, no one reading the law would call a partial

chassis a chassis—much less a car. Congress has

defined a “firearm” to include a “frame or receiver”—

not a precursor to a frame or receiver. ATF may not

depart from the congressional definition and declare

by regulatory fiat that an incomplete frame or receiver

or potential frame or receiver is—voilà!—a firearm.

SUMMARY OF ARGUMENT

It is imperative to our separation of powers that

federal agencies act within the limits of the authority

that Congress grants those agencies by statute. The

Bureau of Alcohol, Tobacco, Firearms and Explosives

(ATF) brazenly exceeds its mandate here. While the

advancement of firearm technology since Congress

passed the Gun Control Act of 1968 (GCA) may

present new challenges, only Congress can amend that

language to expand ATF’s authority. And, in any

event, when ATF considers a new regulation, it must

take into account the significance of the burden it may

pose.

While Congress overhauled gun control in

America when it enacted the GCA, it empowered the

Executive Branch to promulgate only those

regulations necessary to administer the GCA. ATF

argues that it exercised this delegated power when it

redefined frames and receivers, which are central

components of modern firearms that house the firing

mechanism and related essential items for the firearm

to function.

The Final Rule, as relevant here,

reinterprets the statutory term “frame or receiver” in

18 U.S.C. § 921(a)(3)(B) to henceforth mean that serial

numbers must be included on “partially complete”

frames and receivers, jettisoning a definition that was

first adopted by regulation in 1968 and then recodified

in a regulation that had been untouched since 1978.

ATF then muddied the waters still further, adding

that the Final Rule covers objects that can be

“converted to function as a frame or receiver.” In doing

so, ATF violated the Administrative Procedure Act

(APA).

I. The statutory history of 18 U.S.C.

§ 921(a)(3)(B) confirms that the Final Rule violates the

APA. Congress’s initial foray into gun control was the

National Firearms Act in 1934 (NFA), which was

followed shortly thereafter in 1938 by the Federal

Firearms Act (FFA). Those statutes first defined

terms such as “firearm” and established the first

serialization regime. Ironically, the FFA explicitly

included regulating “any part or parts” of firearms.

But when Congress massively expanded federal

regulation of firearms in 1968 when it passed the

GCA, it also repealed that provision from the FFA.

Legislative debates during the 1960s leading up

to the enactment of the GCA confirm that this was not

an oversight on Congress’s part, as it found the FFA’s

language “impractical, if not impossible” insofar as it

treated all weapons parts as actual firearms. The

Senate Report accompanying the GCA specifically

noted this deliberate change. This history also

includes a debate over language in an early version of

the GCA that allowed criminalization of violations of

rules promulgated under GCA rulemaking authority,

which was removed when Senators made the point

that only politically accountable lawmakers should

define what constitutes a crime under the GCA.

Congress definitively defined “firearm” in the

GCA, and included in that definition “frame or

receiver.” Pub. L. No. 90-618, § 102, 82 Stat. 1213,

1214.

This definition accorded with the one

recommended by the Treasury Department (which is

where ATF was originally situated as an agency

component), as well as technical dictionaries at the

time. When Treasury held a public hearing on the

topic, one industry witness specifically praised the

clarity of the GCA’s definition.

Subsequent legislation, including the Firearms

Owners’ Protection Act in 1986, Pub. L. No. 99-308,

100 Stat. 449 (1986), continued to pare back ATF’s

regulatory reach, including specifying that the

Attorney General (through ATF) may prescribe “only

such rules and regulations as are necessary” to

implement the GCA. None of those subsequent

statutes modified the definitions at issue here in 18

U.S.C. § 921(a)(3).

II. Expanding the frame or receiver definition to

include “partially complete” products is unworkable.

A firearm part is “partially complete” if it is anywhere

between raw materials and a ready-to-sell final form

at a retail outlet, and ATF’s scant guidance referring

to a “critical stage of manufacture” does nothing to tell

industry participants when they must shoulder the

burden of serializing the object that will eventually

become a frame or a receiver, risking their license (as

a Federal Firearms Licensee—or “FFL”) and potential

criminal penalties if they do not correctly guess where

ATF’s magic line is drawn in the manufacturing

process. The only stage of manufacture at which a gun

maker or a gun seller knows the law does not require

a serial number is when it is a “primordial ooze”:

completely unformed blocks of metal or plastic, or

liquid versions thereof.

But the earlier in the

gunsmithing process that serialization must occur, the

greater the cost to the industry and consumers.

Laws are written by Congress, not regulators, and

Congress chose to require a serial number on an

actual—and thus finished—frame or receiver. To

interpret the term differently is to redefine it. In

recent years, ATF has demonstrated a pattern and

practice of plaguing the industry with Orwellian

redefinitions of Congress’s policy choices, which this

Court—and lower federal courts—have increasingly

held unlawful, including redefining terms such as

“machinegun” and “short-barreled rifles.”

ATF’s redefinition of “frame or receiver” not only

exceeds Congress’s statutory mandate, but also adds

significant burdens on both manufacturers and

retailers, far beyond ATF’s estimated cost of $14.3

million. The most obvious burden is the need to

serialize objects well before they are true frames and

receivers. Additionally, the Final Rule requires that

firearms with multi-part frames or receivers must

include a serial number on each part. Yet another

burden will often be borne by retailers but at times

also by manufacturers: Personally made firearms

(PMFs), when accepted for repairs or servicing, must

be serialized and fully documented in the inventory

books of those establishments unless those firearms

can be returned to their owners prior to close of

business. Finally, the Final Rule will impose an

additional obligation on firearms dealers by changing

the current 20-year requirement for keeping inventory

records to extend in perpetuity until the business

closes permanently.

III. Common canons of statutory interpretation

confirm that ATF’s redefinition of “frame or receiver”

is unlawful. ATF rules like the Final Rule here have

regularly leaned on an expectation of Chevron

deference, but with Chevron’s recent demise ATF does

not have a leg to stand on. See Loper Bright Enters. v.

Raimondo, 144 S. Ct. 2244, 2273 (2024).

First is the canon of constitutional doubt. When

a provision in a statute is fairly susceptible to multiple

interpretations, one of which would raise doubts about

the statute’s constitutionality, this Court adopts a

narrower reading that obviates the doubt. The

problematic interpretation need not even be

determined to be invalid; the fact that it merely raises

a serious question is reason enough for this Court to

eschew it unless Congress expressly states its

intention to press into that territory. The canon is

implicated here because the Second Amendment is a

fundamental right for private citizens in the United

States, but one that requires gunmakers and sellers as

an antecedent to its exercise. ATF’s Final Rule raises

unacceptable doubts on that score as it is not evident

that this burden on the Second Amendment is

analogous to Framing-era restrictions as required by

New York State Rifle & Pistol Association, Inc. v.

Bruen, 597 U.S. 1 (2022), so this Court must avoid

engaging the conflict by setting aside the Final Rule’s

broader sweep.

And second is the rule of lenity, under which

ambiguities in criminal statutes must be resolved in

favor of a potential defendant. As another separationof-powers rule, it reserves defining criminality to

Congress, not the Executive. But more than that, the

Due Process Clause guarantees that private actors

must have adequate notice and fair warning of what

the law expects of them. The rule extends to civil

applications of criminal statutes, and both

applications are relevant here.

The Court should affirm the judgment below.

ARGUMENT

Statutory History Confirms the Meanings of

“Firearm” and “Frame or Receiver.”

“It makes sense to read” parts of a statutory

provision “in light of the history of the provision.”

Fischer v. United States, 144 S. Ct. 2176, 2186 (2024).

After analyzing the statutory text, a court may look at

“the statutory history, which reinforces that textual

analysis.” Snyder v. United States, 144 S. Ct. 1947,

1955 (2024). Congress was not writing on a blank

slate when it passed the Gun Control Act of 1968, Pub.

L. No. 90-618, 82 Stat. 1213 (codified at 18 U.S.C.

§ 921 et seq.) (GCA), defining “firearm” in 18 U.S.C.

§ 921(a)(3)(B). Two federal statutes had been on the

books for three decades at that point. One is the

National Firearms Act, Pub. L. No. 73-474, 48 Stat.

1236 (1934) (NFA). The other is the Federal Firearms

Act, Pub. L. No. 75-785, 52 Stat. 1250 (1938) (FFA)

(repealed 1968). 2 The meanings of “firearm” and

“frame or receiver” are shaped by the FFA, the GCA,

and contemporaneous regulations adopted in 1968,

which subsequent enactments and regulations did not

alter.

As the Fifth Circuit noted, the FFA gave the

Executive Branch the authority to regulate “any part

or parts of” firearms, but “Congress removed this

language when it enacted the GCA, replacing ‘any part

or parts’ with just ‘the frame or receiver of any such

weapon.’” Pet. App. 20a. Congress also removed

criminal penalties for violations of FFA regulations in

passing the GCA. Moreover, the Firearms Owners’

Protection Act, Pub. L. No. 99-308, 100 Stat. 449

(1986) (FOPA), further curtailed agency regulatory

power.

Origins of the Federal Firearms Act

The FFA defined a firearm as “any weapon, by

whatever name known, which is designed to expel a

projectile or projectiles by the action of an explosive …

or any part or parts of such weapon.” Pub. L. No. 75785, § 1(3), 52 Stat. 1250 (previously codified at 15

U.S.C. § 901(3) (1938)) (repealed 1968). As pertinent

here, it also stated: “Any person violating any of the

provisions of this Act or any rules and regulations

promulgated hereunder” was subject to fines and

imprisonment, id., § 5, 52 Stat. at 1252 (previously

2 This

statutory regime established by the NFA and FFA was

augmented seven years before the GCA in the Act of October 3,

1961, Pub. L. No. 87-342, 75 Stat. 757, in a manner not relevant

here.

codified at 15 U.S.C. § 905 (1938)), with the latter

being a hallmark of a criminal statute, see Mont v.

United States, 587 U.S. 514, 521–22 (2019).

Furthermore, under the FFA, “The Secretary of the

Treasury may prescribe such rules and regulations as

he deems necessary to carry out the provisions of this

Act.” Pub. L. No. 75-785, § 7, 52 Stat. at 1252

(previously codified at 15 U.S.C. § 907 (1938)). 3

Regulations under the FFA required a licensed

manufacturer to maintain records of firearms disposed

of, including a description thereof and “the serial

numbers if such weapons are numbered.” 26 C.F.R.

§ 315.10(a)(1) (1939). 4 A licensed dealer was required

to maintain “records of all firearms acquired or

disposed of[.]” Id. § 315.10(b). And a later amendment

required that records include “firearms in an

unassembled condition, but not including parts of

firearms.” 26 C.F.R. §§ 315.10(a), (b) (1948). 5

A Revenue Ruling issued a few years later

determined that “a barrel[ed] action comprised of the

barrel …; front and rear stock bands; receiver with

complete bolt, trigger action, magazine, etc., is a

weapon, complete except for the stock, which is

capable of expelling a projectile or projectiles by the

action of an explosive.” Whether “assembled or

3 Originally a Treasury component, ATF was later transferred to

the Justice Department, under the Attorney General. Homeland

Security Act of 2002, Pub. L. No. 107-296, § 1111, 116 Stat. 2135,

2274–75 (codified at 6 U.S.C. § 531).

4 Fed. Reg. 1903, 1910 (May 5, 1939), available at

https://www.loc.gov/item/fr004087/.

4 See

13 Fed. Reg. 4383, 4386 (July 30, 1948), available at

https://tinyurl.com/y8u4y8mx.

5 See

unassembled,” it was held to be a “firearm” and not

“parts of firearms” under the FFA. Rev. Rul. 55-175,

1955-1 C.B. 562, 1955 WL 10177, at *1.

Two years before the GCA’s enactment, the

Seventh Circuit held that “Browning automatic rifle

magazines” were “parts” within the FFA’s “part or

parts” definition because “such weapons could not be

fired automatically without the magazines.” United

States v. Lauchli, 371 F.2d 303, 313–14 (7th Cir. 1966).

These finished parts contained in machineguns were

“serviceable parts, thus bringing them within the

scope of the [FFA].” Id. at 314.

In sum, under the FFA, a “firearm” was a

“weapon” designed to expel a projectile, whether

assembled or unassembled. To be a “part or parts,” the

items had to be serviceable. A “receiver” housed the

bolt, trigger action, and magazine. This background

precludes coverage of partially completed material

that had not become an actual weapon or useable

parts.

Despite modern political jargon about “ghost

guns,” from the ratification of the Second Amendment

in 1791 to 1958, no federal legislation required that

anyone—even a firearm manufacturer—mark a

firearm with a serial number.

Then in 1958,

manufacturers and importers were required to

serialize certain firearms:

Each licensed manufacturer and importer of a

firearm produced on and after July 1, 1958, shall

identify it by stamping ... the name of the

manufacturer or importer, and the serial number,

caliber, and model of the firearm.... However,

individual serial numbers and model designation

will not be required on any shotgun or .22 caliber

rifle ....

26 C.F.R. § 177.50 (1958). 6

Legislation changing “part or parts” to

“frame or receiver”

In 1963, a bill was drafted to amend the definition

of “firearm” under the FFA to provide that: “The term

‘firearm’ means any weapon, by whatever name

known, which will, or is designed to, expel a projectile

or projectiles by the action of an explosive, [or] the

frame or receiver of any such weapon ….”

Investigation of Juvenile Delinquency in the United

States: Hearings on S. Res. 63 Before the Subcomm. to

Investigate Juvenile Delinquency of the S. Comm. on

the Judiciary, 88th Cong., pt. 14 at 3414 (1963). 7

During congressional deliberations, the Department of

the Treasury underlined the practical need for

tightening the definition because including all “parts”

of a firearm had become unwieldy:

The present definition includes any “part” of a

weapon within the term. It has been found that

it is impracticable, if not impossible, to treat all

parts of a firearm as if they were a weapon

capable of firing. This is particularly true with

respect to recordkeeping provisions since small

parts are not easily identified by a serial number.

Accordingly, there are no objections to modifying

23 Fed. Reg. 343, 346 (Jan. 18, 1958), available at

https://tinyurl.com/ysapjh6a.

6 See

7 Available at https://tinyurl.com/4hca2ewe.

the definition so that all parts, other than frames

and receivers, are eliminated.

Id. (U.S. Dep’t of Treasury, Comments and Suggested

Changes on Section 1(3) of Subcomm. Draft, Technical

Memorandum Re Draft of Proposed Bill to Amend the

Federal Firearms Act (Mar. 18, 1963)).

Three years later, another bill added “which may

be readily converted to” to the definition of “firearm,”

Federal Firearms Amendments of 1966, S. Rep. No.

89-1866, at 24 (1966). The motivation for that change

was “to include specifically any starter gun designed

for use with blank ammunition which will or which

may be readily converted to expel a projectile or

projectiles by the action of an explosive.” Id. at 14.

By 1968, the definition of “firearm” was settled.

As a Senate Report on the bill that eventually became

the GCA noted: “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, at 111 (1968), as reprinted in 1968

U.S.C.C.A.N. 2112, 2200.

Congress refuses to delegate the power

to criminalize violations of law to

firearm regulators.

Initially, the precursor bills to the GCA included

a provision—like the FFA—making it a crime to

violate the Act or a regulation. Senate Bill 917 (S. 917,

90th Cong.) in 1968 would have penalized anyone who

“violates any provision of this chapter or any rule or

regulation promulgated thereunder,” and empowered

the Secretary of the Treasury to “prescribe such rules

and regulations as he deems reasonably necessary.”

114 Cong. Rec. 14,792 (May 23, 1968) (statement of

Sen. Griffin reading from S. 917 at 101, 105).

Debating that legislation, Senator Robert Griffin

objected, arguing that lawmakers “should not delegate

our legislative power … in the area of criminal law,”

and that due process required that “we should spell

out in the law what is a crime.” Id. (statement of Sen.

Griffin). Likewise, Senator Howard Baker rejected

“plac[ing] in the hands of an executive branch

administrative official the authority to fashion and

shape a criminal offense to his own personal liking.”

Id. (statement of Sen. Baker). After that exchange,

S. 917 was amended to delete the provision making it

a criminal offense to violate “any rule or regulation

promulgated thereunder.” Id. at 14,792–93.

That deletion was reflected in the Omnibus Crime

Control and Safe Streets Act of 1968, Pub. L. No. 90351, 82 Stat. 197, which repealed the FFA and

punished “[w]hoever violates any provision of this

chapter,” with no reference to criminal sanctions for

violating regulations promulgated by the Secretary.

Id. § 902, 82 Stat. at 233 (penalties); id. § 906, 82 Stat.

at 234 (FFA repeal). Before that statute took effect, it

was superseded by the GCA, which enacted the same

penalty clause providing criminal sanctions for

violations of the statute, but not rules promulgated

under the statute. See Pub. L. No. 90-618, § 102, 82

Stat. at 1223–24, 1226.

D. “Firearm” and

under the GCA

“frame

receiver”

The GCA’s definition of “firearm” has been in

effect since the statute’s enactment in 1968: “The term

‘firearm’ means (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

….” Id., 82 Stat. at 1214. The simplicity of this

statutory language leaves no room for reinvention, as

it clearly delineates between a weapon that can be

readily converted to function as a “firearm” and a

“frame or receiver.” Put another way, even if the

statute left room for the Executive to fill in any gaps

with regards to what qualifies as a “frame or receiver,”

there is no room to expand upon what qualifies as a

“firearm,” which is defined by the definitive list in the

statutory provision.

In the initial implementing regulations, the

Treasury Department proposed the following

definition which was approved without change in the

final rule in 1968: “Firearm frame or receiver. 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.” Notice of Proposed Rulemaking,

Commerce in Firearms and Ammunition, 33 Fed. Reg.

16,285, 16,287 (Nov. 6, 1968); Final Rule, Commerce

in Firearms and Ammunition, 33 Fed. Reg. 18,555,

18,558 (Dec. 14, 1968), later recodified in Title and

Definition Changes, 43 Fed. Reg. 13,531, 13,537 (Mar.

31, 1978). It also proposed that manufacturers and

importers must mark the serial number and all other

required markings on the frame or receiver. 33 Fed.

Reg. at 16,293.

The definition reflected the ordinary meaning of a

“frame or receiver” in 1968. The Small Arms Lexicon

published that year defined “frame” as “the basic

structure and principal component of a firearm.”

Chester Mueller & John Olson, Small Arms Lexicon

and Concise Encyclopedia 87 (1968). “Receiver” was

“the part of a gun that takes the charge from the

magazine and holds it until it is seated in the breech.

Specifically, the metal part of a gun that houses the

breech action and firing mechanism[.]” Id. at 168.

The Small Arms Lexicon also clearly defined the

other terms used in the regulation. “Breech” means

“the end of the barrel into which the cartridge is

inserted,” id. at 35, and a “breechblock” is “the

movable block of metal that closes and seals the breech

preparatory to firing the gun,” id. A “bolt” is “the

sliding part in a breechloader that pushes a cartridge

into position and locks or holds the mechanism to

prevent it from opening when the gun is fired.” Id. at

31. A “hammer” is “the piece that pivots on an axis to

deliver a blow to a firing pin.” Id. at 99. A “firing

mechanism” is “those parts of a gun that cooperate to

cause the propelling charge to fire.” Id. at 82.

Again, the definition for “frame or receiver” in the

Treasury Department’s proposed implementing

regulations for the GCA reflected the commonsense

determination that a frame or receiver is “[t]hat part

of a firearm which provides housing for” for all of these

parts. And so a block of metal that does not “provide”

(in the present tense) such housing was not a frame or

receiver as those terms were used in 1968.

The Treasury Department held a public hearing

on the proposed regulations. Not a single witness

objected to the definition of a frame or receiver. Quite

to the contrary, an industry witness praised the “very

clear definition of a … receiver[.]” 8

Several witnesses objected to the requirement

that all required information be marked on the frame

or receiver, which in “many firearms is not large

enough”; and moreover, “the use of interchangeable

barrels … alter[s] the caliber or gauge of a firearm.” 9

The final rule was changed to allow the barrel to be

marked with all of the information other than the

serial number. 33 Fed. Reg. at 18,564.

The 1968 regulation’s definition of “frame or

receiver,” retained without change in the 1978

regulation that remained in force until the Final Rule

at issue here, makes clear that a “frame or receiver” as

used in the GCA is the actual, finished housing for the

8 Tr.

of Proceedings, Dep’t of Treasury, IRS, Determining the

Suitability of Proposed Regulations to Implement Recently

Enacted Legislation Concerned with Federal Regulation of

Commerce in Firearms and Ammunition, at 133 (Nov. 21, 1968)

(comment of Charles Steen, Sarco, Inc.), available at

https://stephenhalbrook.com/wp-content/uploads/2024/07/

Transcript-Hearing-GCA-Regs-11-21-68.pdf.

9 Sporting

Arms & Ammunition Mfrs.’ Inst., Statement

Suggesting Modifications to Proposed Regulations (26 C.F.R.

Part 178) Under the Gun Control Act of 1968, at 26–27 (Nov. 21,

1968) (attach. 2 to Treasury Tr., supra, note 8), available at

https://stephenhalbrook.com/wp-content/uploads/2024/07/

SAAMI-Statements.pdf.

main parts, not material that requires any further

manufacturing steps or can be converted into finished

housing. Since the days of the Early Republic, “respect

was thought especially warranted when an Executive

Branch

interpretation

was

issued

roughly

contemporaneously with enactment of the statute and

remained consistent over time.” Loper Bright Enters.

v. Raimondo, 144 S. Ct. 2244, 2258 (2024).

FOPA reduced ATF’s regulatory power

and retained the definition of “frame or

receiver.”

The Firearms Owners’ Protection Act reduced

ATF’s regulatory reach, modifying the rulemaking

authority conferred upon the Executive to what it is

today: The Attorney General may prescribe “only such

rules and regulations as are necessary to carry out the

provisions of this chapter” (i.e., Chapter 44 of Title 18).

18 U.S.C. § 926(a) (emphases added). FOPA deleted

the prior language that “the Secretary may prescribe

such rules and regulations as he deems reasonably

necessary[,]” Pub. L. No. 99-308, § 106(3), 100 Stat.

449, 459, narrowing the statutory grant of authority

from that which the relevant Cabinet officer deemed

reasonably necessary to only authorize rules that

actually are necessary.

FOPA did not disturb the definition of “firearm”

or modify ATF’s definition of a frame or receiver that

had been adopted in 1968. Further amendments to

the GCA were enacted in 1993, 1994, and 2022,

without touching the definition of “firearm” or

repudiating ATF’s definition of “frame or receiver.”

See Brady Handgun Violence Prevention Act, Pub. L.

No. 103-159, 107 Stat. 1536 (1993); Public Safety &

Recreational Firearms Use Protection Act, Pub. L. No.

103-322, tit. XI, 108 Stat. 1796 (1994); Bipartisan

Safer Communities Act, Pub. L. No. 117-159, 136 Stat.

1313, 1326–27 (2022). “[O]nce an agency’s statutory

construction has been ‘fully brought to the attention of

the public and the Congress,’ and the latter has not

sought to alter that interpretation although it has

amended the statute in other respects, then

presumably the legislative intent has been correctly

discerned.” United States v. Rutherford, 442 U.S. 544,

554 n.10 (1979) (quoting Apex Hosiery Co. v. Leader,

310 U.S. 469, 487–89 (1940)).

The statutory and regulatory history align as

weighty evidence of the meaning of “frame or

receiver.” That history confirms Respondents’ and

amicus’ interpretation, that Congress’s choice of words

codified at 18 U.S.C. § 921(a)(3)(B) cannot include a

frame or a receiver that is only “partially complete.”

Likewise, this history underscores the industry’s

settled expectation that the Executive branch would

adhere to Congress’s explicit language and its own

commonsense interpretation of the statute. 10

10 For more detail on the statutory and administrative history

during 1938–1968, see Stephen P. Halbrook, The Meaning of

‘Firearm’ and ‘Frame or Receiver’ in the Federal Gun Control Act:

The ATF’s 2022 Final Rule in Light of Text, Precedent, and

History, SSRN 35–37 (Aug. 17, 2024) (under review),

https://tinyurl.com/ys7pu88w.

II. ATF’s Regulatory Overreach Will Impose

Significant

Compliance

Burdens

Businesses in the Firearms Industry.

Federal agencies can only act within the scope of

the power Congress grants those agencies by statute.

West Virginia v. EPA, 597 U.S. 697, 723 (2022). There

is no question that there have been significant

advances in firearms technology over the past halfcentury that give rise to debates on how best to deal

with new challenges for combatting criminal misuse of

firearms. But the separation of powers makes clear

that even when policy changes are desirable, and

permitted by the Constitution, updating statutory

language is the province of lawmakers, not regulators

or courts. See Wisconsin Cent. Ltd. v. United States,

585 U.S. 274, 284 (2018); see, e.g., Garland v. Cargill,

602 U.S. 406, 414–15 (2024); id. at 429 (Alito, J.,

concurring).

What is more, even if agencies were permitted to

make regulatory changes based on new circumstances,

they must consider the economic costs imposed by

changes to the regulatory framework of industries

under their statutory jurisdiction. See West Virginia,

597 U.S. at 714; Utility Air Regul. Grp. v. EPA, 573

U.S. 302, 322–24, 333 (2014). ATF did not adequately

factor in that burden here.

ATF jettisoned the dictionary and

adopted a hopelessly vague standard for

“partially

complete”

and

readily

“converted” frames and receivers.

Congress overhauled the Nation’s statutory

regime regulating the ownership of firearms when it

enacted the GCA. 11 In that statute, Congress defined

“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.” 18 U.S.C. § 921(a)(3). Congress empowered

the Secretary of the Treasury (later changed to the

Attorney General) to engage in rulemaking regarding

the GCA, but he “may prescribe only such rules and

regulations as are necessary to carry out” its

provisions.

Id. § 926(a).

The Attorney General

subsequently delegated this authority to ATF. 28

C.F.R. § 0.130.

As discussed above, ATF settled on a definition of

“frame or receiver” that interpreted 18 U.S.C.

§ 921(a)(3)(B) to mean: “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.” 33 Fed.

Reg. at 18,558. That commonsense, clear definition

has thus endured for more than five decades.

In 2022, ATF changed the longstanding

definitions of “firearm” and “frame or receiver” in

Definition of “Frame or Receiver” and Identification of

Firearms, 87 Fed. Reg. 24,652 (Apr. 26, 2022) (codified

in relevant part at 27 C.F.R. §§ 478.11, 478.12(c))

(“Final Rule”). Under the Final Rule:

11 GCA amended a law enacted just months earlier, the Omnibus

Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351,

tit. IV, 82 Stat. 197.

The terms “frame” and “receiver” shall include a

partially

complete,

disassembled,

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[.]

Id. at 24,739.

The wrongheadedness of ATF’s new definition is

manifest. While Congress can define statutory terms

however it sees fit, ATF cannot rewrite statutes. Thus,

it is bound by Congress’s language choice, and must

define terms with reference to objective sources like

dictionaries. See, e.g., National Cable & Telecomms.

Ass’n v. Brand X Internet Srvcs., 545 U.S. 967, 989

(2005). But ATF’s definition of “frame or receiver”

cannot be supported by any dictionary, as it defies

common sense: Now “frame or receiver” somehow

means “partially complete frame or receiver.” It is bad

enough that “frame or receiver” now means

“disassembled frame or receiver,” “nonfunctional

frame or receiver;” and “frame or receiver parts kit.”

But at least words like “disassembled” and

“nonfunctional” have ascertainable definitions (even if

those definitions cannot be reconciled with the

language

Congress

codified

U.S.C.

§ 921(a)(3)(B)).

To say the terms “frame” and “receiver” now

include a “partially complete” frame or a “partially

complete” receiver is hopelessly vague. As Judge

Oldham noted below, “This is perhaps ATF’s most

aggressive attempt to bootstrap hunks of metal and

plastic into the GCA’s definition of a ‘firearm.’” Pet.

App. 58a–59a (Oldham, J., concurring). There is no

way to ascertain where ATF draws the line. ATF says

that an object “becomes a frame or receiver when it has

reached a ‘critical stage of manufacture.’” 87 Fed. Reg.

at 24,685. But that term, too, is undefined—floating

in the ether. Not to worry, ATF assures the public,

because a manufacturer crosses the line when an

object “may readily be completed, assembled, restored,

or otherwise converted” to functionality. Id. But

ATF’s expansion of the definition to cover objects that

can “readily” be “converted” into a frame or receiver is

likewise hopelessly flawed, involving a test of no fewer

than eight factors a court must examine, with no

indication that the list is comprehensive. Id. at

24,735.

This “I know it when I see it” standard is in the

eye of the beholder—and that beholder is ATF. Under

ATF’s new definition, “anything beyond primordial

ooze, liquid polymer, and wholly unformed raw metal”

might now be deemed a “firearm” or as a “frame” or

“receiver.” Pet. App. 59a (Oldham, J., concurring). An

FFL risks its license, and with it the ability to do

business—if not criminal penalties—if it cannot see

the line ATF draws with invisible ink as to when a

frame or receiver is “partially complete,” but

sufficiently far along in the manufacturing process,

such that it triggers additional regulatory measures,

including

serialization

and

recordkeeping

requirements.

See, e.g., 27 C.F.R. § 478.92

(serialization requirements for frame or receivers); see

also id. § 478.123(a) (requiring that manufacturers

and importers of a “frame or receiver” create a record

within seven days of “manufacture or other

acquisition”). That is not a workable standard.

Indeed, the result is Orwellian, as ATF is determined

to stretch the definition of “frame or receiver” to

encompass products that cannot be supported by the

statutory text or simple logic, completely subject to the

whims of an agency that holds the power to revoke

FFL licenses. It is no wonder that such a rule imposes

significant costs and other negative consequences on

the industry that has the misfortune of being the

target of such an anti-lexicon campaign.

ATF’s

unlawful

rejection

commonsense

definitions

imposes

immense burdens and costs on business.

ATF has a pattern and practice of these

unknowable standards. Like many highly regulated

industries, the firearms industry is continually subject

to evolving regulations from ATF. This regulatory

churning imposes significant costs on the private

sector, impacting not only the manufacturers and

retailers in each such industry, but also the prices and

choices available to consumers. There are substantial

costs of various types imposed here because of reliance

on the previous regulatory framework. And rejecting

basic, longstanding, and self-evident definitions

inevitably imposes costs on the firearms industry.

ATF acknowledges costs of $14.3 million per year, 87

Fed. Reg. at 24,654, but as explained below, the full

burden on the industry and consumers is ultimately

greater than that.

1. ATF has a pattern and practice of imposing

counter-textual redefinitions of words found in

longstanding statutes. Indeed, in Cargill the Court

recently rejected an ATF rule reinterpreting the word

“machinegun” in 26 U.S.C. § 5845(b), holding that the

definition cannot extend to firearms with bump stocks.

602 U.S. at 414–15. Cargill rejected ATF’s argument

that statutory terms can be non-legislatively updated

to account for newer technologies, reasoning that “it is

never [this Court’s] job to rewrite statutory text under

the banner of speculation about what Congress might

have done.” Id. at 428 (cleaned up).

Likewise, the Eighth Circuit recently rebuffed

ATF’s latest attempt to impose another of its

dictionary-noncompliant definitions when it rejected

ATF’s pistol brace rule.

See Firearms Regul.

Accountability Coal., Inc. v. Garland, -- F.4th --, 2024

WL 3737366 (8th Cir. Aug. 9, 2024) (FRAC). At issue

in that case, id. at *1 & n.1, is another final rule from

ATF—Factoring Criteria for Firearms with Attached

“Stabilizing Braces”, 88 Fed. Reg. 6,478 (Jan. 31, 2023)

(codified at 27 C.F.R. §§ 478, 479). ATF made a

similar move—this time “reclassif[ying] pistols

equipped with stabilizing braces (braced weapons) as

[National Firearms Act]-regulated ‘short-barreled

rifles’[.]” FRAC, 2024 WL 3737366, at *1. Following

this Court’s lead in Cargill, the Eighth Circuit rejected

ATF’s final rule, holding it was arbitrary and

capricious. Id. at *11–12.

In this case, the Fifth Circuit rejected the Final

Rule on much clearer ground—that it amounts to an

assault on the English language. This Court should

affirm and once again conclude that ATF cannot defy

the clear statutory text by regulating an industry on a

whim, imposing standards that involve reading ATF’s

collective mind as to where lines are drawn.

ATF’s engrafting of “partially complete” into the

definition of “frame or receiver” in 18 U.S.C.

§ 921(a)(3)(B) is not just unsalvageable—it is also

costly. So too with “convertible.” Firearms and

firearm parts are made from costly raw materials and

are transformed into completed firearms or completed

parts—like a frame or receiver—by skilled craftsmen

using precision-engineered heavy machinery. The

financial impact of expanding ATF’s regulatory reach

is thus significant both to the companies in that

industry and to the citizens purchasing those

products.

2. The Final Rule burdens FFLs on the

manufacturing side in a self-evident fashion. They

must now serialize frames and receivers at some

unknowable point in the manufacturing process before

that manufacturer has completed the production of

that component, as opposed to during the completion

of the fabrication process, though of course requiring

serialization of a “partially complete” frame or receiver

is internally inconsistent with the separate provision

in the same Final Rule specifying the timeframe in

which a serial number must be added to a frame after

the

manufacturing

process

has

concluded.

See 27 C.F.R. § 478.92(a)(1)(vi)(A). Yet another new

imposition in the Final Rule is that it requires a serial

number to be listed multiple times on a firearm in the

case of a firearm with a multi-piece frame or receiver.

87 Fed. Reg. at 24,747 (now codified at 27 C.F.R.

§ 479.102(a)(3)). While clarifying that such a firearm

does not require (indeed, cannot have) multiple serial

numbers that differ from one another, a multi-piece

frame or receiver would be required to be stamped in

more than one place in the same firearm, imposing

additional costs in time and resources for each such

firearm.

The Final Rule also imposes a burden on FFLs on

the retail side, specifically with additional

administrative burdens when dealers service PMFs. If

a dealer’s work on the firearm cannot be completed

before close of business on the day the firearm is

received at the business, “the firearm must be

recorded as an ‘acquisition,’” and once the firearm is

returned to its customer, it must recorded as a

“‘disposition.’” 87 Fed. Reg. at 24,730. As a necessary

consequence, the PMF must be serialized, either by

the dealer or by another. Id. at 24,742 (codified at 27

C.F.R. § 478.92(a)(2)); accord id. at 24,729–30. While

it is permissible for someone other than the dealer to

make that marking, if no other person places

identifying marks on the firearm, then the dealer is

required to shoulder that burden. See id. at 24,729–

31. This new requirement is another violation of the

GCA, as only licensed importers and manufacturers,

not dealers, are required to “identify by means of a

serial number engraved or cast on the receiver or

frame” of a firearm in a manner prescribed by

regulation. 18 U.S.C. § 923(i).

Nor is that the only additional recordkeeping

burden. FFLs are required to maintain records of

firearm transfers, which includes purchases and other

activities resulting in firearms being added to, or

removed from, the firearms held in inventory. See 18

U.S.C. § 923(a), (c). Under the previous regime, FFLs

were required to retain those records for 20 years. 87

Fed. Reg. at 24,730. The Final Rule modified the

requirement, codified at 27 C.F.R. §§ 478.50(a),

478.129, to now require FFLs to retain those records

for as long as the business exists. 87 Fed. Reg. at

24,730, 24,731, 24,746.

These burdens on the firearms industry are

unjustified and unlawful under the APA. This Court

should accordingly set aside the Final Rule.

III. The Canon of Constitutional Doubt and Rule

of Lenity Provide Further Support for

Respondents’ Interpretation.

Several of this Court’s most common interpretive

tools confirm that ATF’s interpretation of the various

statutory provisions in the Final Rule challenged here

cannot be reconciled with the statutory text.

The canon of constitutional doubt

First, the canon of constitutional doubt counsels

against ATF’s interpretation of the GCA. It is wellsettled that “where an otherwise acceptable

construction of a statute would raise serious

constitutional problems, the Court will construe the

statute to avoid such problems unless such

construction is plainly contrary to the intent of

Congress.” Edward J. DeBartolo Corp. v. Florida Gulf

Coast Bldg. & Constr. Trades Council, 485 U.S. 568,

575 (1988) (citation omitted); accord Antonin Scalia &

Bryan A. Garner, Reading Law: The Interpretation of

Legal Texts 247–51 (2012). Also known as the canon

of constitutional avoidance, it requires that “when

statutory language is susceptible of multiple

interpretations, a court may shun an interpretation

that raises serious constitutional doubts and instead

may adopt an alternative that avoids those problems.”

Jennings v. Rodriguez, 583 U.S. 281, 286 (2018).

This canon does not require the Court to conclude

that a broader interpretation would necessarily be

unconstitutional, only that it would raise serious

doubts on that score. United States v. Jin Fuey Moy,

241 U.S. 394, 401 (1916) (citation omitted). As a

result, “[w]here an administrative interpretation of a

statute invokes the outer limits of Congress’ power,”

this Court requires “a clear indication that Congress

intended that result.” Solid Waste Agency of N. Cook

Cnty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 172

(2001). As a prudential matter, this Court assumes

“that Congress does not casually authorize

administrative agencies to interpret a statute to push

the limit of congressional authority.” Id. at 172–73.

The Court adhered to that

jurisprudential

balance with regards to agency power even during the

era of Chevron deference. Now Chevron, U.S.A., Inc.

v. Natural Resources Defense Council, Inc., 467 U.S.

837 (1984), has been overruled by Loper Bright, 144

S. Ct. at 2273. For decades, courts struggled to find

the optimal balance between Chevron deference and

clear-statement rules in administrative law cases

where both interpretive guides were present as

countervailing factors. See Abbe R. Gluck & Lisa S.

Bressman, Statutory Interpretation from the Inside—

An Empirical Study of Congressional Drafting,

Delegation, and the Canons: Part I, 65 Stan. L. Rev.

901, 938–45, 995–98 (2013). And few agencies took

greater advantage of Chevron deference than ATF,

prevailing in numerous interpretive battles merely

because courts concluded that ATF’s interpretation of

the GCA and other federal laws met the minimal

standard of being “reasonable.” See Br. for NSSF as

Amicus Curiae at 6–10, Loper Bright, 144 S. Ct. 2244

(No. 22-451).

The constitutional-doubt canon comes to bear

here because ATF’s interpretation burdens the Second

Amendment right to keep and bear arms. The right to

keep and bear arms is not only an individual right,

District of Columbia v. Heller, 554 U.S. 570, 598

(2008), it is also a right that is fundamental under the

Constitution. McDonald v. City of Chicago, 561 U.S.

742, 778 (2010). Enumerated rights are “[p]remised

on mistrust of governmental power,” Citizens United

v. FEC, 558 U.S. 310, 340 (2010), and one of the most

common manifestations of that mistrust is when the

government seeks to restrict an exercise of that right

through regulation.

The Second Amendment is unusual among

constitutional rights in that most people are incapable

of exercising it without antecedent actions by third

parties. Given that the right to keep and bear arms

can be exercised only when a citizen is able to obtain

functional firearms, and that few Americans have the

skill or materials to create personally made firearms

(PMFs), regulatory burdens imposed on companies

who manufacture or sell firearms erect obstacles to

law-abiding American citizens being able to exercise

their Second Amendment rights.

Burdens on the right to keep and bear arms must

be analogous to those accepted by the American people

in 1791 to be permissible under the Second

Amendment. New York State Rifle & Pistol Ass’n v.

Bruen, 597 U.S. 1, 17 (2022). That would extend to

frames and receivers, because the “reference to arms

does not apply only to those arms in existence in the

18th century.” Id. at 28 (cleaned up). A firearm is a

composite device comprised of various components. A

frame is a central component of a modern pistol, and a

receiver is similarly essential to modern long guns. If

a frame or receiver is not covered by the Second

Amendment, then neither are modern pistols, rifles, or

shotguns, which would contravene this Court’s central

holding in Bruen.

It is not necessary for this Court to conclude that

ATF’s interpretation of “frame or receiver” violates the

Second Amendment. Instead, this Court need only

conclude that the Final Rule would raise a doubt

regarding the constitutionality of ATF’s interpretation

of the GCA. ATF’s definition of frames and receivers

reaches so deeply into the manufacturing process that

it includes intermediate stages of making such

components. As explained above, that overreach will

have significant impacts on routine industry

processes, which requires historical analysis that ATF

did not provide in the Final Rule. But Congress did

not write 18 U.S.C. § 921(a)(3) in a manner that makes

this question unavoidable, so this Court should

therefore set aside ATF’s novel interpretation.

The rule of lenity

A second reason to reject ATF’s interpretation of

18 U.S.C. § 921(a)(3)(B) is the rule of lenity. It is

simply the well-established principle that ambiguity

regarding the reach of a criminal statute should be

resolved against the government’s claim of authority.

Liparota v. United States, 471 U.S. 419, 427 (1985).

Lenity is based “on the plain principle that the power

of punishment is vested in the legislative” branch of

government. United States v. Wiltberger, 18 U.S. 76,

95 (1820). That “rule exists in part to protect the Due

Process Clause’s promise that a fair warning should be

given to the world in language that the common world

will understand, of what the law intends to do if a

certain line is passed.” Bittner v. United States, 598

U.S. 85, 102 (2023) (cleaned up).

Such criminal penalties obtain here. See 18

U.S.C. § 924(a)(1). And even if they did not, “if a law

has both criminal and civil applications, the rule of

lenity governs its interpretation in both settings.”

Whitman v. United States, 574 U.S. 1003, 1003 (2014)

(Scalia, J., respecting denial of cert.); see Leocal v.

Ashcroft, 543 U.S. 1, 11–12 n.8 (2004); United States

v. Thompson/Ctr. Arms Co., 504 U.S. 505, 518 n.10

(1992) (plurality). Thompson/Ctr. Arms is especially

relevant here, as it involved the interpretation of a

term in a federal gun-control statute, the NFA. 504

U.S. at 507–08.

Only a duly enacted statute is a “manifestation of

the legislative will,” Arnold v. United States, 13 U.S.

104, 119 (1815), as the court below noted, Pet. App. 2a

n.1. That has particular application regarding the

GCA, because “criminal laws are for courts, not for the

Government, to construe.” Abramski v. United States,

573 U.S. 169, 191 (2014); see also United States v. Apel,

571 U.S. 359, 369 (2014). 12

The rule of lenity is “so deeply ingrained” that,

when it comes to the GCA, it “must be known to both

drafter and reader alike so that [it] can be considered

inseparable from the meaning of the text.” Scalia &

Garner, Reading Law, supra, at 31. “Due process

requires Congress to define penal statutes with

sufficient definiteness that ordinary people can

understand what conduct is prohibited and in a

manner that does not encourage arbitrary and

discriminatory enforcement.” Sackett v. EPA, 598 U.S.

651, 680–81 (2023) (cleaned up). In the heavily

regulated space of federal gun control laws, such a rule

is at its apogee.

CONCLUSION

For the foregoing reasons, as well as those set

forth by Respondents, the judgment of the Court of

Appeals should be affirmed.

Respectfully submitted,