UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JENNIFER VANDERSTOK, et al.,

 Plaintiffs, 

BLACKHAWK MANUFACTURING 

GROUP INC. d/b/a 80 Percent Arms,

 Intervenor-Plaintiff,

DEFENSE DISTRIBUTED, and

THE SECOND AMENDMENT 

FOUNDATION, INC.

 Intervenors-Plaintiffs,

v.

MERRICK GARLAND, in his Official 

Capacity as Attorney General of the United 

States, et al.,

 Defendants.

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Civil Action No. 4:22-cv-00691-O

BRIEF IN SUPPORT OF

DEFENSE DISTRIBUTED AND THE

SECOND AMENDMENT FOUNDATION, INC.’S

MOTION TO INTERVENE

Case 4:22-cv-00691-O Document 117 Filed 11/02/22 Page 1 of 10 PageID 1470
Argument

Defense Distributed and the Second Amendment Foundation, Inc. (SAF) move to intervene 

in this action for the purpose of challenging the regulation already at issue in this case, Definition 

of “Frame or Receiver” and Identification of Firearms, 87 Fed. Reg. 24,652 (Apr. 26, 2022)

(hereinafter the new Final Rule), and obtaining relief from the Defendants’ enforcement thereof. 

The Court recently granted the motion to intervene of Blackhawk Manufacturing Group, 

Doc. 98, whose circumstances closely parallel Defense Distributed and SAF’s. Defense 

Distributed’s case for intervention is just as compelling as Blackhawk’s in every relevant respect. 

The case for intervention is likewise well-established for SAF, a prominent national organization

that promotes its members’ Second Amendment interests. SAF’s membership includes both 

Defense Distributed and individuals that, but for the challenged regulation, would be exercising 

their Second Amendment rights by doing business with firms like Defense Distributed. 

The test for intervention of right is met as to both Defense Distributed and SAF, since each 

has interests relating to this action that are not currently represented adequately and will be 

impaired without intervention. The test for permissive intervention is met as well, since Defense 

Distributed and SAF’s claims and the existing share a common legal core. The requested 

intervention is timely and will not delay the case or prejudice its existing parties. Defense 

Distributed and SAF have filed this motion with due diligence and are prepared to comply with all 

of the Court’s existing scheduling orders. In particular, Defense Distributed and SAF’s 

intervention would not hinder the Court’s intended exercise of authority under Rule 65(a)(2) to 

consolidate the hearing on preliminary injunction to a trial on the merits for Count I of Plaintiffs’ 

and Intervenor-Plaintiff’s complaints. See Doc. 107. That keystone claim is common to all 

plaintiffs and is presented by these intervenors’ proposed complaint as Count I as well.

Case 4:22-cv-00691-O Document 117 Filed 11/02/22 Page 2 of 10 PageID 1471
I. The Court should grant intervention of right under Rule 24(a)(2).

Primarily, Defense Distributed and SAF move to intervene of right under Federal Rule of 

Civil Procedure 24(a)(2). That requires showings of “(1) timeliness, (2) an interest relating to the 

action, (3) that the interest would be impaired or impeded by the case, and (4) that the interest is 

not adequately represented by existing parties.” In re Lease Oil Antitrust Litig., 570 F.3d 244, 247 

(5th Cir. 2009); see generally 7C Charles A. Wright & Arthur R. Miller et al., Federal Practice & 

Procedure § 1908 (3d ed. West 2022). Defense Distributed and SAF meet all four elements here. 

Exhibit A to this motion is Defense Distributed and SAF’s proposed complaint. It begins 

with a summary showing that all of Rule 24’s requisite interests are clearly present:

1. Defense Distributed and the Second Amendment Foundation, Inc. 

challenge the federal government’s new regulatory definition of “firearm,” 

Definition of “Frame or Receiver” and Identification of Firearms, 87 Fed. Reg. 

24,652 (Apr. 26, 2022) (Exhibit A) (hereinafter the new Final Rule), which illegally 

expands that keystone term of criminal law far beyond both its statutory and 

constitutional borders. The new regulatory definition of “firearm” is 

unprecedented. It uses supposedly delegated power to deem illegal for the first time 

ever vast swaths of traditional Second Amendment conduct that Congress itself did 

not and could not choose to make illegal.

2. The new Final Rule contradicts the statute it is supposed to be 

administering. Congress in the Gun Control Act defined “firearm” to include a 

weapon’s actually finished “frame or receiver.” Yet the new Final Rule expands 

the definition to criminalize (1) unfinished frames and receivers—i.e., non-frame 

and non-receiver articles that may become a frame or receiver if additional 

processes sufficiently alter its material constitution, and (2) frame and receiver 

“part kits”—i.e., kits of non-frame and non-receiver articles that may become a 

frame or receiver if additional processes sufficiently alter its material constitution. 

Both expansions contradict the Gun Control Act’s “firearm” definition, which 

plainly understands that an unfinished frame or receiver is not an actual frame or 

receiver and that a part kit to make a frame or receiver is also not an actual frame 

or receiver. Such obvious statutory overreaches violate the Administrative 

Procedure Act.

3. The new Final Rule also violates the Administrative Procedure Act 

by failing to perform the inquiries mandated by New York State Rifle & Pistol Ass'n, 

v. Bruen, 142 S.Ct. 2111 (2022). To comply with the Second Amendment, the 

promulgating agencies needed to jettison balancing tests and consider only whether 

Case 4:22-cv-00691-O Document 117 Filed 11/02/22 Page 3 of 10 PageID 1472
their regulation is “consistent with this Nation's historical tradition of firearm 

regulation.” Id. at 2126-32. Yet because that did not happen—itself a key APA 

violation—it is no surprise that the new Final Rule tramples true historical 

traditions.

4. More fundamentally, the new Final Rule is an exercise of 

Legislative power that Congress did not in fact and could not have constitutionally 

delegated to the agencies at issue. Because the task of defining the Gun Control 

Act’s “firearm” term has vast economic and political significance, a valid 

delegation of that power would have to have been (1) articulated clearly, and (2) 

accompanied by intelligible principles for its exercise. But because Congress did 

not clearly articulate a delegation of the power to define the Gun Control Act’s 

“firearm” term, no such delegation occurred in fact. The major questions doctrine 

establishes this. See, e.g., West Virginia v. EPA, 142 S. Ct. 2587 (2022). And 

because Congress did not accompany any such delegation with intelligible 

principles for its exercise, the separation of powers would not permit it. The 

nondelegation doctrine establishes this. See, e.g., Jarkesy v. SEC, 34 F.4th 446 (5th 

Cir. 2022).

5. For these and other reasons, the federal government’s new 

regulatory definition of “firearm” should be held unlawful and set aside. Relief is 

especially critical for the instant plaintiffs, Defense Distributed and the Second 

Amendment Foundation, Inc., who but for the new Final Rule would be exercising 

their Second Amendment rights by engaging in the conduct that these Agencies 

have illegally criminalized. The resulting harms are concrete, particularized, and 

in many respects irreparable.

6. For years, Defense Distributed’s entire business model has 

depended on its ability to deal in items that are not “firearms” under Gun Control 

Act itself and not “firearms” under prior regulations, but that are defined for the 

first time ever as “firearms” by the new Final Rule. The new Final Rule cuts a 

foundation of Defense Distributed’s business model out from under it, sweeping 

away critical revenues, saddling it with massive new compliance costs, causing 

service provider disruptions, and damaging Defense Distributed’s reputation and 

goodwill in the business community. These harms are largely irreparable and very 

probably existential.

7. The Second Amendment Foundation’s members are suffering 

massive irreparable harms as well. Despite having a well-established constitutional 

right to manufacture their own firearm for self-defense at home, the new Final Rule 

stops SAF members from acquiring from firms like Defense Distributed the 

“unfinished” frames and receivers and/or frame and receiver “parts kits” that SAF 

members reasonably need to exercise their Second Amendment rights.

Ex. A at 2-4. 

Case 4:22-cv-00691-O Document 117 Filed 11/02/22 Page 4 of 10 PageID 1473
 A. The motion is timely.

The timeliness inquiry looks at “(1) the length of time between the would-be intervenor's 

learning of his interest and his petition to intervene, (2) the extent of prejudice to existing parties 

from allowing late intervention, (3) the extent of prejudice to the would-be intervenor if the petition 

is denied, and (4) any unusual circumstances.” In re Lease Oil Antitrust Litig., 570 F.3d at 247. 

Here the inquiry shows a diligent, non-prejudicial effort that favors intervention.

The length of time between Defense Distributed and SAF learning of their interest and the 

intervention request was reasonable, especially given the case’s unique procedural posture. 

Defense Distributed is a member of FPC, Ex. A at ¶ 10, and FPC has in the case always sought to 

litigate on behalf of its members. See Doc. 89 at 13. The Court only recently resolved the issue 

of whether to have the preliminary injunction cover FPC’s members. On October 1, 2022, the 

Court—in an order that expressly mentioned Defense Distributed—found that “FPC ha[d] not 

carried its burden to demonstrate its associational right to seek injunctive relief on behalf of its 

members.” Doc. 89 at 15. In the wake of that circumstance comes the current intervention effort,

which has proceeded with due diligence as swiftly as practicable. See, e.g., Ass’n of Professional 

Flight Attendants v. Gibbs, 804 F.2d 318, 320–21 (5th Cir. 1986) (five-month delay is reasonable).

Prejudice to existing parties is minimal or nonexistent. In this respect, the “only proper 

concern is how much more prejudice would result from [Defense Distributed and SAF’s]

intervention at this stage, versus an intervention earlier in the first 30 days of this litigation.” Doc. 

98 at 6. Just as with Blackhawk, Defense Distributed and SAF’s intervention at this point (rather

than slightly earlier) causes only “mere inconvenience.” Id. And indeed, as compared to the 

burdens to defendants of Defense Distributed and SAF suing separately, intervening in this case 

now is by far the best use of resources for all parties and the courts. Unified litigation benefits all.

Case 4:22-cv-00691-O Document 117 Filed 11/02/22 Page 5 of 10 PageID 1474
Defense Distributed and SAF are willing to comply with the case’s current schedule. See

Doc. 98 at 6. They, like all of the current parties, desire the fastest case resolution possible. In 

particular, Defense Distributed and SAF are perfectly willing to comply with the Court’s intended 

advancement of a trial on the merits for Count I of Plaintiffs’ and Intervenor-Plaintiff’s complaints,

see Docs. 107, 110, which overlap and subsume Count I of Defense Distributed and SAF’s 

proposed complaint, see Ex. A at Part V.A. This “mitigates any purported prejudice on this 

ground.” Doc. 98 at 6. It is also still true that this litigation has not yet reached a “critical stage.” 

Id. And just as with Blackhawk’s effort, id. the allegations (to be taken as true at this stage) show 

that both Defense Distributed and SAF will be prejudiced if intervention is denied because both 

are suffering ongoing irreparable harm. Ex. A at Part II.B-C. “As for unusual circumstances 

weighing for or against the timeliness of the intervention,” Doc. 98 at 6, this factor either pushes 

in neither direction or weighs slightly in favor of intervention.1

 

B. The requisite interests are claimed and not already represented.

Defense Distributed and SAF meet the requirement of having an interest relating to the 

action that may be impaired or impeded by the case’s outcome. See Fed. R. Civ. P. 24(a)(2); In re 

Lease Oil Antitrust Litig., 570 F.3d at 247. The Court rightly found that Blackhawk met these

parts of the test, Doc. 98 at 7-8, and for essentially those same reasons the test is met here as well. 

1 Defense Distributed and SAF are private parties with finite resources and litigation capacities, and both are already 

stretched thin by the need to prosecute important preexisting litigation against federal officials violating other rights 

about firearms and the Constitution. The federal government should not be heard to complain when citizens take any 

longer to initiate one lawsuit because they are busy litigating against that same government’s extraordinary 

wrongdoing in another. See Def. Distributed & SAF v. Bruck, 30 F.4th 414, 421 (5th Cir. 2022) (“Since 2013, [Defense 

Distributed and the Second Amendment Foundation, Inc.] have been challenging publication restraints imposed by 

the U.S. State Department, federal courts, and the State of New Jersey after Defense Distributed published to the 

Internet computer assisted design (‘CAD’) files for a single-round plastic pistol. . . . [Defense Distributed and SAF] 

ha[ve] yet to secure a court decision condemning what appear to be flagrant prior restraints.”); id. at 430 (“Just when 

the Plaintiffs, after several years of litigation, thought they had obtained relief from a signed settlement agreement 

with the State Department, the NJAG loudly led a bevy of states in opposition. . . . [T]he State Department opted not 

to complete the settlement. Accordingly, the State Department did not modify relevant federal regulations, disavowed 

the license and exemption from regulations it had promised Defense Distributed, and refused to appeal adverse 

decisions by the Washington federal court.”).

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Defense Distributed’s “protectible interest—in continued operation of its business—might be 

impaired or impeded by the outcome of this litigation.” Id. at 7. “Indeed, absent expanded 

injunctive relief, [Defense Distributed’s] cognizable property interest may not only be impeded, it 

will likely dissolve entirely.” Id. at 7-8. The same is true for SAF, who advances the interests of 

members suffering irreparable harm akin to the individual plaintiffs. See Ex. A at Part. IV.B-C.

Finally, Defense Distributed and SAF’s interests are not “adequately represent[ed]” at 

present. See Fed. R. Civ. P. 24(a)(2); In re Lease Oil Antitrust Litig., 570 F.3d at 247. The Court 

rightly found that Blackhawk met this part of the test, Doc. 98 at 8-9, and for essentially those 

same reasons the test is met by Defense Distributed and SAF as well. Defense Distributed’s status 

as a competitor seller vis-à-vis Tactical Machining “is a practical nuance sufficient to overcome” 

the relevant threshold. Id. The “current scope of the preliminary injunction, which affords 

protective relief to only Individual Plaintiffs and Tactical Machining, and Defendants’ continued 

opposition to expansion of relief to FPC members—and specifically BlackHawk—satisfies this 

minimal threshold” too. Id. That Defense Distributed and SAF make unique arguments against 

the regulation (e.g., their Count II), is another point in favor of allowing intervention. See Aransas 

Project v. Shaw, 404 F. App’x 937, 941 (5th Cir. 2010) (per curiam) (an existing party’s failure to 

“articulate legal arguments that [the intervenor] would put forth” can support intervention). 

II. Alternatively, the Court should grant permissive intervention under Rule 24(b).

Alternatively, if the Court does not grant intervention of right, Defense Distributed and 

SAF move to intervene permissively under Federal Rule of Civil Procedure 24(b). This is 

warranted because Defense Distributed and SAF’s request for permissive intervention is timely 

and because Defense Distributed and SAF’s claims share common questions of law and fact with 

those of the main action. See Fed. R. Civ. P. 24(b); see generally Wright & Miller § 1911.

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The Court rightly found that Blackhawk met this part of the test, Doc. 98 at 8-9, and for 

essentially those same reasons the test is met by Defense Distributed and SAF as well. The same 

showing of timeliness and lack of delay or prejudice for Rule 24(a)(2) meets the analogous 

threshold for Rule 24(b). See id. “Thus, the only remaining question is whether [Defense 

Distributed and SAF] ha[ve] a claim that shares with the main action a common question of law 

or fact.” Id. Just like Blackhawk, Defense Distributed and SAF assert “claims and requests for

relief that largely overlap with those of the existing Plaintiffs.” Id. at 9-10. So this element is 

“clearly satisfied.” Id. Thus, the Court should again conclude that “intervention is both 

permissible and accomplishes Rule 24’s competing goals of judicial efficiency by consolidating 

multiple parties’ challenges to the Final Rule while avoiding fruitless complexity.” Id.

Conclusion

The Court should grant the motion and direct the Clerk of the Court to add Defense 

Distributed and the Second Amendment Foundation, Inc. as parties to this case.

Case 4:22-cv-00691-O Document 117 Filed 11/02/22 Page 8 of 10 PageID 1477
Respectfully submitted,

BECK REDDEN LLP

By /s/ Chad Flores

Chad Flores

cflores@beckredden.com

Texas Bar No. 24059759

Nicholas M. Bruno

nbruno@beckredden.com

Texas Bar No. 24097432

Zachary T. Nelson

znelson@beckredden.com

Texas Bar No. 24127240

1221 McKinney St., Suite 4500

Houston, Texas 77010-2010

Telephone: (713) 951-3700

Facsimile: (713) 951-3720

Counsel for Defense Distributed and 

The Second Amendment Foundation, Inc.

Case 4:22-cv-00691-O Document 117 Filed 11/02/22 Page 9 of 10 PageID 1478
CERTIFICATE OF SERVICE

I certify that a true and correct copy of this submission was served on all counsel of record 

by the Court’s CM/ECF system in accordance with the Federal Rules of Civil Procedure on 

November 2, 2022.

/s/ Chad Flores

Chad Flores

Case 4:22-cv-00691-O Document 117 Filed 11/02/22 Page 10 of 10 PageID 1479