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.

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

§

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

BRIEF IN SUPPORT OF DEFENSE DISTRIBUTED AND 

THE SECOND AMENDMENT FOUNDATION, INC.’S 

MOTION FOR SUMMARY JUDGMENT

Case 4:22-cv-00691-O Document 166 Filed 01/12/23 Page 1 of 5 PageID 3062
2

Argument

Defense Distributed and the Second Amendment Foundation, Inc. (“SAF”) move for 

summary judgment against Defendants Merrick Garland, United States Department of Justice, Steven 

Dettelbach, and the Bureau of Alcohol, Tobacco, Firearms and Explosives on all counts of Defense 

Distributed and SAF’s complaint. For all but one of their claims, Defense Distributed and SAF’s 

motion seeks summary judgment by joining and adopting specified aspects of the motion for 

summary judgment filed by Plaintiffs Jennifer VanDerStok, Michael G. Andren, Tactical Machining, 

LLC, and Firearms Policy Coalition, Inc. (hereinafter “Plaintiffs”), Doc. 140 (motion); Doc. 141 

(brief), and/or the motion for summary judgment of Intervenor-Plaintiff BlackHawk Manufacturing 

Group Inc. d/b/a 80 Percent Arms (hereinafter “Blackhawk”), Doc. 144 (motion); Doc. 145 (brief). 

Defense Distributed and SAF’s Count Two is unique. No other party pleads it. So this

brief explains why Defense Distributed and SAF’s Count Two warrants a summary judgment

holding that the new Final Rule is “arbitrary, capricious, an abuse of discretion, or otherwise not 

in accordance with law” and setting it aside. 5 U.S.C. § 706(2)(A). The normal summary judgment 

standards for APA Section 706(2)(A) claims apply. See Fed. R. Civ. P. 56; § 706(2)(A).

I. Count Two: APA § 706(2)(A)—Failure to consider.

In Count Two, Defense Distributed and SAF assert a unique process-based claim about the 

Agencies having violated the Administrative Procedure Act by promulgating the Final Rule with 

insufficient considerations. See Doc. 143 at 22-23. It is not the same as Defense Distributed and 

SAF’s Count One, which asserts an outcome-based APA violation (the Final Rule’s contradiction 

of its enabling statute) and is asserted by other claimants. Nor is it the same as Defense Distributed 

and SAF’s Count Five, which asserts an outcome-based APA and constitutional violation (the 

Final Rule’s contradiction of the Second Amendment) and is asserted by other claimants as well. 

Defense Distributed and SAF’s Count Two is process-focused instead of outcome-focused and,

Case 4:22-cv-00691-O Document 166 Filed 01/12/23 Page 2 of 5 PageID 3063
3

though it invokes Second Amendment precedent, the resulting violation is of the APA and not the 

Constitution. No other party asserts this claim. See Doc. 137 at 8 (Order granting Defense 

Distributed and SAF’s motion to intervene) (“Putative Intervenors raise a unique claim implicating 

their rights under the Second Amendment that diverges from those brought by the current Plaintiffs.”). 

Defense Distributed and SAF’s Count Two shows that the new Final Rule is “arbitrary, 

capricious, an abuse of discretion, or otherwise not in accordance with law,” § 706(2)(A), because

the Agencies when promulgating the Final Rule failed to consider legally relevant factors and data. 

Whenever an agency makes a rule, the Agency’s rulemaking process “must examine” “relevant 

factors” and “relevant data.” Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm, 463 U.S. 29, 

43 (1983). For this rule, the Agencies had to consider the “relevant” Second Amendment inquiry 

upheld by New York State Rifle & Pistol Association, v. Bruen, 142 S.Ct. 2111 (2022). That is, 

the APA required the Agencies to consider whether this “regulation is consistent with this Nation's 

historical tradition of firearm regulation” and to do so strictly—i.e., without using the “means-end 

scrutiny” that Bruen deemed unconstitutional. Id. at 2126-32. No such inquiry occurred here.

When promulgating the new Final Rule, the Agencies doubly violated the APA by both (1) 

failing to consider the factors and data that Bruen deems constitutionally mandatory and (2) relying 

instead on factors and data that Bruen deems constitutionally improper. The administrative record

is glaring in both respects. Most importantly, the record shows no Bruen-compliant considerations 

because the Agencies did not even try to determine whether this “regulation is consistent with this 

Nation's historical tradition of firearm regulation.” Id. at 2126-32. The Agencies never attempted 

to consider whether the new Final Rule “addresses a general societal problem that has persisted 

since the 18th century,” and if so whether there was “a distinctly similar historical regulation 

addressing that problem.” Id. These failures are established as a matter of law. 

Case 4:22-cv-00691-O Document 166 Filed 01/12/23 Page 3 of 5 PageID 3064
4

Instead of promulgating the Final Rule by considering the legally relevant factors and data, 

the administrative record shows that the Agencies compounded their APA violation by relying 

upon legally irrelevant matters. They infected their rulemaking process with the very 

presumptions of legality and means-ends scrutiny that Bruen deems illegal. Compare 87 Fed. Reg. 

24,676-24,677 (relying on “compelling governmental interests” and “presumptively lawful 

regulatory measures”), with Bruen, 142 S. Ct. at 2126 (“Heller and McDonald do not support 

applying means-end scrutiny in the Second Amendment context. Instead, the government must 

affirmatively prove that its firearms regulation is part of the historical tradition that delimits the 

outer bounds of the right to keep and bear arms.”). This too is established as a matter of law.

Given that the Agencies did not even attempt to consider the correct Second Amendment 

factors and data, it is no surprise to see that the resulting Final Rule violates the Constitution. But 

that important result-based violation is a different and distinct problem addressed by other claims. 

At issue here in Defense Distributed and SAF’s Count Two is the Agencies’ procedural failure to 

consider the historical factors and data that Bruen deems relevant—a process-based APA illegality 

that warrants setting the Final Rule aside regardless of how outcome-based claims turn out.

For these reasons, Defense Distributed and SAF’s Count Two entitles them to a summary 

judgment holding that the Final Rule is “arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law” and ordering that it be “set aside.” 5 U.S.C. § 706(2); see Data Mktg. 

P’ship, LP v. United States Dep’t of Lab., 45 F.4th 846, 859 (5th Cir. 2022).

Conclusion

The motion should be granted both as to the grounds regarding Defense Distributed and 

SAF’s Counts One, Three, Four, Five, and Six that are shared with other claimants. Furthermore 

and independently, the motion should be granted as to the grounds regarding Defense Distributed 

and SAF’s Count Two that Defense Distributed and SAF alone assert.

Case 4:22-cv-00691-O Document 166 Filed 01/12/23 Page 4 of 5 PageID 3065
5

Date: January 12, 2022 Respectfully submitted, 

/s/ Chad Flores 

Chad Flores

Texas Bar No. 24059759

cflores@beckredden.com

Beck Redden LLP

1221 McKinney St., Suite 4500

Houston, TX 77010

(713) 951-3700

(713) 951-3720 Fax

Counsel for Defense Distributed and the Second 

Amendment Foundation, Inc.

Case 4:22-cv-00691-O Document 166 Filed 01/12/23 Page 5 of 5 PageID 3066