United States Court of Appeals

For the Eighth Circuit 

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No. 22-2812

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Morehouse Enterprises, LLC, doing business as Bridge City Ordinance; Eliezer 

Jimenez; Gun Owners of America, Inc.; Gun Owners Foundation

 Plaintiffs - Appellants

State of Arizona; State of West Virginia; State of Alaska; State of Arkansas; State 

of Idaho; State of Indiana; State of Kansas; Commonwealth of Kentucky; State of 

Louisiana; State of Missouri; State of Montana; State of Nebraska; State of 

Oklahoma; State of South Carolina; State of Texas; State of Utah; State of 

Wyoming

 Plaintiffs 

v.

Bureau of Alcohol, Tobacco, Firearms and Explosives; United States Department 

of Justice; Bureau of Alcohol, Tobacco & Firearms, Director, Steven M. 

Dettelbach (formerly Gary M. Restaino)

 Defendants - Appellees

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District of Columbia; State of New Jersey; State of Pennsylvania; State of 

California; State of Colorado; State of Connecticut; State of Delaware; State of 

Hawaii; State of Illinois; State of Maine; State of Maryland; State of 

Massachusetts; State of Michigan; State of Minnesota; State of New York; State of 

North Carolina; State of Oregon; State of Rhode Island; State of Washington; State 

of Wisconsin; Prosecutors Against Gun Violence; 16 Major Cities; Gun Violence 

Prevention Groups

 Amici on Behalf of Appellee(s)

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___________________________

No. 22-2854

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Morehouse Enterprises, LLC, doing business as Bridge City Ordinance; Eliezer 

Jimenez; Gun Owners of America, Inc.; Gun Owners Foundation; State of Arizona

 Plaintiffs 

State of West Virginia; State of Alaska; State of Arkansas; State of Idaho; State of 

Indiana; State of Kansas; Commonwealth of Kentucky; State of Louisiana; State of 

Missouri; State of Montana; State of Nebraska; State of Oklahoma; State of South 

Carolina; State of Texas; State of Utah; State of Wyoming

 Plaintiffs - Appellants

v.

Bureau of Alcohol, Tobacco, Firearms and Explosives; United States Department 

of Justice; Bureau of Alcohol, Tobacco & Firearms, Director, Steven M. 

Dettelbach (formerly Gary M. Restaino)

 Defendants - Appellees

------------------------------ 

District of Columbia; State of New Jersey; State of Pennsylvania; State of 

California; State of Colorado; State of Connecticut; State of Delaware; State of 

Hawaii; State of Illinois; State of Maine; State of Maryland; State of 

Massachusetts; State of Michigan; State of Minnesota; State of New York; State of 

North Carolina; State of Oregon; State of Rhode Island; State of Washington; State 

of Wisconsin; Prosecutors Against Gun Violence; 16 Major Cities; Gun Violence 

Prevention Groups

 Amici on Behalf of Appellee(s)

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Appeal from United States District Court 

for the District of North Dakota - Eastern

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Submitted: March 14, 2023

Filed: August 22, 2023

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Before COLLOTON, MELLOY, and GRUENDER, Circuit Judges. 

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MELLOY, Circuit Judge. 

Two organizations, one individual, one business, (collectively “Private 

Plaintiffs”) and seventeen states (“the States”) sued the Bureau of Alcohol, Tobacco, 

Firearms and Explosives (“ATF”) for overstepping its statutory authority and for 

violating federal law in promulgating the “Definition of ‘Frame or Receiver’ and 

Identification of Firearms” (“Final Rule”). 87 Fed. Reg. 24,652 (April 26, 2022) 

(codified at 27 C.F.R. pts. 447, 478, and 479). The plaintiffs appeal the district 

court’s1 denial of a motion for a preliminary injunction. We affirm. 

I. 

The Gun Control Act of 1968 (“the Act”) requires anyone “engag[ing] in the 

business of importing, manufacturing, or dealing in firearms” to be licensed and 

places certain requirements—such as record keeping—on licensed persons. 18 

U.S.C. § 923(a), (g); see generally Gun Control Act of 1968, Pub. L. No. 90-618, 

§ 101, 82 Stat. 1213-1236 (1968) (codified at 18 U.S.C. § 921–28). The Act defines

“firearm” as “(A) any weapon (including a starter gun) which will or is designed to 

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

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

silencer; or (D) any destructive device. Such term does not include an antique

firearm.” 18 U.S.C. § 921(a)(3). The responsibility for administering and enforcing 

1

The Honorable Peter D. Welte, Chief Judge, United States District Court for 

the District of North Dakota. 

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the Act is delegated to the Director of the ATF subject to the direction of the 

Attorney General. See 26 U.S.C. § 599A. 

The ATF has promulgated rules and regulations defining terms necessary to 

enforce the Act, such as “frame or receiver.” In 2021, ATF began the process of 

updating these rules and regulations to reflect changes to firearms in circulation. In 

May 2021, the ATF issued a Notice of Proposed Rule Making (“Notice”). See

generally Definition of “Frame or Receiver” and Identification of Firearms, 86 Fed. 

Reg. 27,720 (proposed May 21, 2021) (to be codified at 27 CFR pts. 447, 478, and 

479). The summary of the Notice stated: 

The Department of Justice (“Department”) proposes amending Bureau 

of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) regulations to 

provide new regulatory definitions of “firearm frame or receiver” and 

“frame or receiver” because the current regulations fail to capture the 

full meaning of those terms. The Department also proposes amending 

ATF’s definitions of “firearm” and “gunsmith” to clarify the meaning 

of those terms, and to provide definitions of terms such as “complete 

weapon,” “complete muffler or silencer device,” “privately made 

firearm,” and “readily” for purposes of clarity given advancements in 

firearms technology. Further, the Department proposes amendments to 

ATF’s regulations on marking and recordkeeping that are necessary to 

implement these new or amended definitions.

Notice, 86 Fed. Reg. at 27,720. The Notice contained the text of the proposed rule.

The comment period closed on August 19, 2021. ATF and the DOJ reviewed over 

290,000 public comments, made several changes to the proposed definitions, and 

published the Final Rule on April 26, 2022. The Final Rule became effective on 

August 24, 2022. See Final Rule, 87 Fed. Reg. 24,652. 

On July 5, 2022, Private Plaintiffs filed a complaint in the district court. 

Private Plaintiffs include: 1) an individual who lives in North Dakota and buys 

materials online to make firearms; 2) an LLC that holds an active federal firearms 

license and sells firearms in North Dakota; 3) a California corporation formed to 

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protect the Second Amendment rights of gun owners; and 4) a Virginia corporation 

that operates as a nonprofit legal defense and educational foundation. Private 

Plaintiffs and the States filed an amended complaint on July 27.2 The two complaints 

assert the same causes of action. The complaints discuss distinct harms for the 

different categories of plaintiffs. 

The plaintiffs have three categories of claims. First, the plaintiffs argue the 

Final Rule violates the APA because the Notice did not give interested parties fair 

notice. Second, the plaintiffs argue the Final Rule violates federal law in several 

ways including: 1) updating definitions in a way that impermissibly expands the 

scope of the Act; 2) creating a new requirement that dealers put serial numbers on

firearms; 3) creating a national gun registry in violation of 18 U.S.C. § 926 (“no such 

rule . . . may require that records required to be maintained under this chapter or any 

portion of the contents of such records, be recorded at or transferred to a facility 

owned, managed, or controlled by the United States[]”); and 4) generating 

requirements in violation of the Second Amendment. Finally, the plaintiffs argue the 

rule is arbitrary and capricious. 

On August 23, 2022, the district court denied a motion for a preliminary 

injunction. On October 4, this court denied a motion for an injunction pending

appeal. All parties have agreed to stay the case in the district court pending the result 

of this interlocutory appeal.3

2

The States were: Arizona, West Virginia, Alaska, Arkansas, Idaho, Indiana, 

Kansas, Kentucky, Louisiana, Missouri, Montana, Nebraska, Oklahoma, South 

Carolina, Texas, Utah, Wyoming. Arizona was voluntarily dismissed from the 

lawsuit on March 20, 2023. 

3

A February 2023 joint status report in the district court stated: “it would best 

serve the interests of all parties involved” to stay the case pending this interlocutory 

appeal. The next status report is due to the district court by September 1, 2023.

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II. 

“A plaintiff seeking a preliminary injunction must establish four factors 

showing such relief is warranted: (1) he is likely to succeed on the merits; (2) he is 

likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance 

of equities tips in his favor; and (4) an injunction is in the public interest.” MPAY

Inc. v. Erie Custom Comput. Applications, Inc., 970 F.3d 1010, 1015 (8th Cir. 2020) 

(quotation marks and citations omitted). When deciding whether to grant a 

preliminary injunction, courts ask “whether the balance of equities so favors the 

movant that justice requires the court to intervene to preserve the status quo until the 

merits are determined.” Nebraska v. Biden, 52 F.4th 1044, 1046 (8th Cir. 2022) (per 

curiam) (citation omitted). The movant bears the burden of demonstrating the 

preliminary injunction is warranted because a preliminary injunction is an 

“extraordinary remedy never awarded as of right.” Progressive Techs., Inc. v. 

Chaffin Holdings, Inc., 33 F.4th 481, 485 (8th Cir. 2022) (citation omitted). 

The district court concluded the plaintiffs had not demonstrated a likelihood 

of success on any of their claims. The district court also concluded “the Plaintiffs 

had not met their burden to demonstrate irreparable harm.” Due to the failure to show 

the first two factors, the district court found neither the balance of equities nor the 

public interest favored a preliminary injunction. The Eighth Circuit “review[s] a 

district court’s ultimate ruling on a preliminary injunction for abuse of discretion, 

though we review its underlying legal conclusions de novo. . . . A district court 

abuses its discretion in denying a preliminary injunction if it rests its conclusion on 

clearly erroneous factual findings or erroneous legal conclusions.” MPAY Inc., 970 

F.3d at 1015 (citations omitted). 

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III. 

A.

Because, as discussed below, we find the plaintiffs have failed to show they 

will suffer irreparable harm absent a preliminary injunction, we need not address the 

likelihood of success on the merits. Grasso Enters., LLC v. Express Scripts, Inc., 

809 F.3d 1033, 1040 (8th Cir. 2016) (holding the absence of irreparable harm “is an 

independently sufficient ground upon which to deny a preliminary injunction.”). 

This is especially true when, as is the case here, we are not the only court addressing 

the merits of these arguments. See Garland v. VanDerStok, U.S. Sup. Ct. No. 23A82

(Miscellaneous Order Aug. 8, 2023).4

B. 

To show irreparable harm, “a party must show that the harm is certain and 

great and of such imminence that there is a clear and present need for equitable 

relief.” Dakotans for Health v. Noem, 52 F.4th 381, 392 (8th Cir. 2022) (citation 

omitted). The plaintiffs must show the harm is “not merely a ‘possibility’” but is 

likely to occur absent preliminary injunctive relief. Tumey v. Mycroft AI, Inc., 27 

F.4th 657, 665 (8th Cir. 2022) (citations omitted). The plaintiffs argue two categories 

of irreparable harms: 1) Second Amendment harms; and 2) economic harms.5 Here, 

4

The VanDerStok case is in a somewhat unusual procedural posture. The 

Northern District of Texas entered a final order invaliding the entire Final Rule 

which had become effective on August 24, 2022. On appeal, the Fifth Circuit issued 

a stay pending appeal as to part of that district court’s order. The result of the stay 

pending appeal would have been for the majority of the Final Rule to remain in effect 

while two provisions would have been vacated. Then, on an application for stay, the 

Supreme Court issued an order granting a stay pending appeal as to the entire district 

court order. The net effect of these orders is that the Final Rule will remain in effect 

in its entirety while the Fifth Circuit considers the appeal. 

5

The States present several distinct harms. We need not address these harms 

as we find the states lack standing. The states allege several harms they claim warrant 

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the harms, if any, are so slight and speculative that we find the district court did not 

error in denying a preliminary injunction. 

i.

The plaintiffs assert they will suffer Second Amendment harm absent a 

preliminary injunction. We conclude that the plaintiffs have alleged a mere 

“possibility of irreparable harm before a decision on the merits can be rendered.” Id.

(quotation marks and citation omitted). They have failed to “show that irreparable 

injury is likely in the absence of an injunction[.]” Id. Our conclusion, at this early

stage of litigation, does not speak to the merits of a Second Amendment claim later 

in this litigation. 

In most instances, constitutional violations constitute irreparable harm. See

Powell v. Ryan, 855 F.3d 899, 904 (8th Cir. 2017) (en banc). However, the assertion 

of a possible constitutional violation does not release plaintiffs from their burden of 

showing that irreparable harm is more than just a “mere possibility.” See Sessler v.

City of Davenport, Iowa, 990 F.3d 1150, 1156 (8th Cir. 2021). 

The plaintiffs have not clearly shown how the Final Rule will prevent them 

from engaging in constitutionally protected conduct. Regarding the business

plaintiff in this case, we are left unsure what behavior it wishes to engage in, as an 

LLC, that is protected by the Second Amendment. For the individual plaintiff, as 

well as the advocacy organizations purporting to represent the rights of individual 

standing: 1) the Final Rule will result in fewer firearms in circulation and therefore 

less crime deterrence; 2) the Final Rule frustrates state firearm policy; and 3) the 

Final Rule will force firearm dealers to close thus decreasing state tax revenue. These 

alleged harms are vague and speculative. The states have not shown these injuries 

are “concrete, particularized, and actual or imminent[.]” Davis v. Fed. Election 

Comm’n, 554 U.S. 724, 733 (2008). Nor have plaintiffs shown these alleged harms 

are “fairly traceable to the defendant’s challenged behavior; and likely to be 

redressed by a favorable ruling.” Id. 

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firearm owners, we are left unsure how the Final Rule—that creates no new 

obligations on individuals—will prevent individuals from engaging in protected 

Second Amendment activity. See id. (finding the plaintiff failed to show irreparable 

harm when he could not show he would have engaged in constitutionally protected 

conduct absent the government regulation). The record needs to be developed further 

to explain both the Second Amendment rights of the plaintiffs in this case and how 

the Final Rule will impact those rights. 

ii.

The plaintiffs also argue they will suffer economic harm without a preliminary 

injunction. The plaintiffs assert generally that compliance costs and uncertainty 

surrounding the validity and scope of the Final Rule will be costly to businesses and 

lead to fewer sales of firearms. However, the plaintiffs do not explain the economic 

harm in definite enough terms to show the extent of any harm is “actual and not 

theoretical.” Packard Elevator v. I.C.C., 782 F.2d 112, 115 (8th Cir. 1986). The 

plaintiffs do not try to quantify, or clearly explain, their generally alleged compliance 

costs. The plaintiffs also fail to explain how the Final Rule’s regulations will impact 

their overall business model in a way that will result in closures. “Injunctive relief 

‘will not be granted against something merely feared as liable to occur at some 

indefinite time’; the party seeking injunctive relief must show that ‘[t]he injury 

complained of [is] of such imminence that there is a “clear and present” need for 

equitable relief to prevent irreparable harm.’” Id. (citations omitted). Without more 

information about the financial impact of the Final Rule, we find no clear and present 

need for preliminary injunctive relief. 

In asking for a preliminary injunction, the plaintiff “is not required to prove 

with certainty the threat of irreparable harm, but it must prove that ‘irreparable injury 

is likely in the absence of an injunction.’” Sleep No. Corp. v. Young, 33 F.4th 1012, 

1018 (8th Cir. 2022) (citation omitted). The district court did not abuse its discretion 

in concluding plaintiffs have not met their burden.

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C. 

The third and fourth factors for a preliminary injunction—harm to the 

opposing party and the public interest—merge when the Government is the party 

opposing the preliminary injunction. Nken v. Holder, 556 U.S. 418, 435 (2009). 

Given the lack of irreparable harm, we do not find that “the balance of equities so 

favors the movant that justice requires the court to intervene to preserve the status 

quo until the merits are determined.” Nebraska v. Biden, 52 F.4th at 1046 (citation 

omitted). 

IV. 

Given a lack of irreparable harm, we conclude the district court did not abuse 

its discretion in denying the preliminary injunction. 

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