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No. 23A82 

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IN THE SUPREME COURT OF THE UNITED STATES 

_______________ 

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

v. 

JENNIFER VANDERSTOK 

_______________ 

REPLY IN SUPPORT OF APPLICATION FOR A STAY 

_______________ 

ELIZABETH B. PRELOGAR 

 Solicitor General 

 Counsel of Record 

 Department of Justice 

 Washington, D.C. 20530-0001 

 SupremeCtBriefs@usdoj.gov 

 (202) 514-2217

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IN THE SUPREME COURT OF THE UNITED STATES 

_______________ 

No. 23A82 

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

v. 

JENNIFER VANDERSTOK 

_______________ 

REPLY IN SUPPORT OF APPLICATION FOR A STAY 

_______________ 

Respondents do not and could not deny the stark practical 

stakes of this case: The district court’s universal vacatur would 

allow anyone with access to the Internet to anonymously buy a parts

kit or partially completed frame or receiver and easily assemble 

a working firearm in as little as twenty minutes. That result 

“would virtually repeal” the “core provisions” of the federal 

firearms laws. Abramski v. United States, 573 U.S. 169, 179-180 

(2014). And by making untraceable guns freely available to felons, 

minors, and other prohibited persons, it would endanger the public 

and thwart efforts to prevent and solve serious crimes. 

Respondents offer no good reason to tolerate those grave harms 

during what could be a years-long appellate process. On the merits, they do not seriously dispute that the weapon parts kits 

covered by the Rule fall squarely within the plain text of the 

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statute, or that an ordinary speaker of English would recognize 

that a company selling nearly complete frames and receivers is 

selling “frames” and “receivers.” Nor do respondents deny that 

their interpretation would frustrate the Gun Control Act by transforming its central definition into an invitation to evasion. Instead, respondents assert that the structure and context of the 

Act mandate that self-defeating result. But those interpretive 

tools actually point in precisely the opposite direction. 

Respondents also fail to justify the district court’s reflexive grant of universal relief. They do not dispute that such 

relief is a dramatic departure from traditional equitable principles. They assert that the Administrative Procedure Act (APA) 

compelled that departure by directing courts to “set aside” agency 

action found to be unlawful. 5 U.S.C. 706(2). But the APA was 

widely understood to codify, not revolutionize, traditional preAPA remedies. The lower-court practice of universal vacatur on 

which respondents rely emerged only decades later. And even if 

that sweeping remedy were authorized in some cases, respondents 

fail to show why a disruptive departure from party-specific relief 

was justified here -- indeed, they scarcely even try to do so. 

Finally, respondents’ filings further confirm that the balance of the equities overwhelmingly favors a stay. Allowing the 

vacatur to take effect would let tens of thousands of untraceable 

ghost guns flow into our Nation’s communities -- with many going 

to felons, minors, or those intending to use them in crimes. A 

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stay, in contrast, would simply require respondents to comply with 

the same straightforward, inexpensive requirements for commercial 

firearms sales that tens of thousands of dealers already comply 

with in millions of transactions each year. 

I. THIS COURT WOULD LIKELY GRANT CERTIORARI AND REVERSE IF THE 

FIFTH CIRCUIT AFFIRMED THE DISTRICT COURT’S UNIVERSAL VACATUR

Respondents do not seriously dispute that this Court would 

likely grant review if the Fifth Circuit affirmed the district 

court’s nationwide vacatur. And on the merits, respondents fail 

to rehabilitate either the district court’s analysis of the challenged provisions of the Rule or its grant of universal relief. 

A. A Weapon Parts Kit Falls Within The Plain Meaning Of The 

Act’s Definition Of “Firearm” 

 Respondents insist that a weapon parts kit that can readily 

be converted into a working firearm -- and that is designed, marketed, and used for that specific purpose -- is not a “firearm” 

under the Act. But respondents do not acknowledge, much less 

refute, our plain-text analysis of 18 U.S.C. 921(a)(3), which explicitly includes “any weapon” that “is designed to or may readily 

be converted to expel a projectile by the action of an explosive.” 

That is fatal to their argument: The parts kits covered by the 

Rule fall squarely within the statutory definition. Appl. 16-17. 

The plain text of the statute also answers respondents’ objection (VanDerStok Opp. 17-18) that the Rule impermissibly covers

parts kits that require what they call “additional manufacturing” 

of the frame or receiver. A kit that includes a partially complete 

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frame or receiver and the other parts necessary to “readily * * * 

complete[], assemble[], restore[], or otherwise convert[]” the kit 

into a functional firearm, 27 C.F.R. 478.11, fits within the statutory definition because it can “readily be converted” into a 

functional firearm, 18 U.S.C. 921(a)(3)(A). That the frame or 

receiver may only be partially complete does not change the analysis. And because the Rule, like the statute, reaches only kits 

that can “readily” be converted, what respondents call “additional 

manufacturing” (VanDerStok Opp. 18) typically involves drilling a 

few holes and removing some plastic rails -- a process that can be 

completed in a matter of minutes. Cf. Definition of “Frame or 

Receiver” and Identification of Firearms, 87 Fed. Reg. 24,652, 

24,669 (Apr. 26, 2022); see Appl. App. 70a-71a, 81a-88a. 

Respondents’ interpretation also violates the “cardinal principle of statutory construction” that requires courts to “‘give 

effect, if possible, to every clause and word of a statute.’” 

Williams v. Taylor, 529 U.S. 362, 404 (2000) (citation omitted). 

Respondents appear to maintain (VanDerStok Opp. 18) that the phrase 

“may readily be converted” reaches only a “disassembled firearm” 

that was “at one time” a “functioning firearm.” But because such 

a firearm would by definition “includ[e] a finished frame or receiver,” id. at 19, it would also be covered by Section 

921(a)(3)(B) -- rendering the phrase “may readily be converted” in 

Section 921(a)(3)(A) superfluous. 

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 Respondents invoke (VanDerStok Opp. 6-7; BlackHawk Opp. 4) a 

Senate Report stating that the statutory scheme that predated the 

Act had imposed “impractical * * * controls over each small part 

of a firearm,” and that the Act therefore regulates only frames 

and receivers, not “any part or parts.” S. Rep. No. 1097, 90th 

Cong., 2d Sess. 111 (1968) (citation omitted). But the Rule does 

not permit ATF to treat as firearms “any part or parts,” ibid. 

(citation omitted), because individual parts cannot “readily be 

completed, assembled, restored, or otherwise converted” into an 

operational weapon, 27 C.F.R. 478.11. Only parts kits that meet 

the Rule’s readily completed requirement are covered. 

Finally, respondents err in asserting (BlackHawk Opp. 15)

that the government has not previously treated weapon parts kits 

as firearms. The emergence of those kits is a recent phenomenon, 

but the government’s view that they can qualify as firearms spans 

multiple Administrations. In a December 2020 classification letter, for example, ATF determined that respondent Polymer80’s “Buy 

Build Shoot” kit is a firearm. Appl. App. 70a-76a. ATF explained 

that the kit had allowed a user to “mill and assemble the kit’s 

components into a complete pistol within 21 minutes,” and that the 

kit therefore qualified as a “firearm” because it was “designed 

to, or may readily be converted to expel a projectile by the action 

of an explosive.” Id. at 71a, 76a. The Rule’s provision addressing parts kits adheres to the same straightforward understanding 

of the statutory text. 

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B. A Partially Completed Or Nonfunctional Frame Or Receiver 

That Can Readily Be Completed Is A “Frame Or Receiver” 

Respondents also offer no persuasive defense of the district 

court’s invalidation of the provision of the Rule addressing partially complete frames or receivers. 

1. The Act does not define the terms “frame” and “receiver,” 

which should thus be given their “ordinary, contemporary, common 

meaning.” Delaware v. Pennsylvania, 143 S. Ct. 696, 705 (2023) 

(citation omitted). Neither dictionary definitions nor ordinary 

usage requires that a frame or receiver be “complete,” “operable,” 

or “functional” in order to be described as such. Appl. 21-23. 

Respondents thus do not and could not deny that, as a matter of 

ordinary usage, it would be perfectly natural to describe a pistol 

frame as a “frame” even if it is missing “a single hole necessary 

to install the applicable fire control component” or “has a small 

piece of plastic that can easily be removed to allow installation 

of that component.” Appl. App. 54a. Indeed, respondents themselves use the terms in precisely that way when marketing their 

products to the public, describing them as “80% frames” and “80% 

receivers” -- or often simply as “frames” and “receivers.”1

2. Respondents acknowledge that they seek a departure from 

ordinary meaning, asserting (VanDerStok Opp. 13) that “ordinary 

understanding” is “unhelpful” because, “when used to mean ‘frame 

1 Polymer80, for example, sells the relevant products on 

a section of its website entitled “Pistol Frame[s] and Jigs.” 

https://perma.cc/DLG5-GRGX. Similarly, BlackHawk markets “the 

GST-9” “[f]rame.” https://perma.cc/4N5Y-YQHM. 

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or receiver,’ ‘firearm’ is a term of art.” No one disputes that 

the Act defines “firearm” more broadly than its ordinary meaning 

by including “frame[s] or receiver[s].” 18 U.S.C. 921(a)(3)(B). 

But the relevant terms for present purposes are the undefined terms 

“frame” and “receiver.” And as to those terms, ordinary understanding is not merely relevant, but dispositive. See Delaware, 

143 S. Ct. at 705. 

Respondents’ variation on our bicycle analogy illustrates the 

point. They assert (VanDerStok Opp. 14) that if Congress defined 

a bicycle to include a bicycle “frame,” that definition would not 

include a frame that “require[d] additional manufacturing” before 

other parts could be attached. But that would not be true of a 

readily completable bicycle frame -- for example, one that requires 

the buyer to drill two holes before attaching the seat, or that 

comes packaged with plastic guards that must be removed before 

connecting the crank and pedals. So too here: A frame or receiver 

that includes “temporary rails or blocking tabs that are easily 

removable by a person with novice skill * * * within minutes” 

and thereby becomes “immediately capable of accepting” the remaining parts of an operational firearm is a “frame or receiver.” ATF, 

Open Letter on Impact of Final Rule 2021-05F on Partially Complete 

Polymer80, Lone Wolf, and Similar Semiautomatic Pistol Frames, at 

6 (Dec. 27, 2022), https://perma.cc/VP62-S26P. 

Like the district court, respondents emphasize (VanDerStok 

Opp. 12, 14; BlackHawk Opp. 13-14) that Congress used the phrase 

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“designed to or may readily be converted to” in Section 

921(a)(3)(A) but did not include a similar phrase in Section 

921(a)(3)(B). But as we have already explained (Appl. 26-27), 

there is an obvious explanation for that difference: If Congress 

had limited the express definition of “firearm” in Section 

921(a)(3)(A) to weapons that “will * * * expel a projectile by 

the action of an explosive,” 18 U.S.C. 921(a)(3)(A) (emphasis 

added), it would have departed from ordinary meaning by including 

only functional firearms. But Congress did not define “frame or 

receiver,” which means that those terms should be interpreted consistent with their ordinary meaning -- not artificially limited to 

“complete” or “functional” frames or receivers. Respondents have 

no answer to that straightforward textual point. 

3. Finally, respondents’ assertion (VanDerStok Opp. 15-16) 

that the Rule is inconsistent with ATF’s prior understanding of 

“frame or receiver” is belied by the record. ATF has long treated 

as a frame or receiver a product that has reached “a stage of 

completeness that will allow it to accept the firearm components 

[for] which it is designed * * * , using basic tools in a 

reasonable amount of time.” 87 Fed. Reg. at 24,685 (citation 

omitted). Contrary to respondents’ assertion (VanDerStok Opp. 15-

16), that closely parallels the Rule, which defines frame or receiver to include products that “may readily be completed, assembled, restored, or otherwise converted to function as a frame or 

receiver.” 27 C.F.R. 478.12(c). That similarity is backed up by 

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decades of classification letters issued by numerous Administrations in which ATF recognized that products that need minimal 

additional work to convert them into complete frames or receivers 

are frames and receivers. See Appl. 25 n.3; Appl. App. 65a-69a; 

Administrative Record 1-645. Indeed, some of those letters analyze 

whether frames or receivers can be “readily converted” into functional ones. E.g., Appl. App. 65a. 

C. Neither The Rule Of Lenity Nor The Canon Of Constitutional Avoidance Supports Respondents’ Position 

Respondents invoke (VanDerStok Opp. 19-22) the rule of lenity 

and the constitutional-doubt canon. The district court did not 

rely on those arguments, and they lack merit. 

The rule of lenity has a role to play only if, “after considering text, structure, history, and purpose, there remains a 

grievous ambiguity or uncertainty in the statute.” United States 

v. Castleman, 572 U.S. 157, 172-173 (2014) (citation omitted). 

And the constitutional-doubt canon applies only when there are 

“competing plausible interpretations of a statutory text.” Clark 

v. Martinez, 543 U.S. 371, 381 (2005). Neither interpretive tool 

is relevant here because the Rule reflects the best reading of the 

statute and respondents’ contrary interpretation is not plausible.

In any event, the Rule does not “raise[] serious constitutional doubts.” Clark, 543 U.S. at 381. This Court’s Second 

Amendment decisions have emphasized that “laws imposing conditions 

and qualifications on the commercial sale of arms” are “presumpCase 4:22-cv-00691-O Document 257-3 Filed 08/21/23 Page 10 of 21 PageID 5163
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tively lawful.” District of Columbia v. Heller, 554 U.S. 570, 

626-627 & n.26 (2008); see New York State Rifle & Pistol Ass’n v. 

Bruen, 142 S. Ct. 2111, 2162 (2022) (Kavanaugh, J., concurring). 

The Rule does not prohibit anyone from possessing a firearm or 

making one at home; instead, it merely confirms that those engaged 

in “commercial sale[s]” of weapon parts kits and covered frames 

and receivers must abide by the Act’s longstanding and uncontroversial serialization, background-check, and recordkeeping requirements. Heller, 554 U.S. at 627; see Abramski, 573 U.S. at 

180. And respondents’ brief invocation of vagueness (VanDerStok 

Opp. 20-21) is equally unavailing. Like countless other laws, the

Rule’s provision covering frames or receivers that can readily be 

made functional “call[s] for the application of a qualitative

standard” to “real-world” facts. Johnson v. United States, 576 

U.S. 591, 604 (2015). Indeed, that standard closely parallels the 

express “may readily be converted” language in Section 

921(a)(3)(A), which respondents do not suggest raises any constitutional concern. 

D. The District Court Erred In Granting Universal Relief

Respondents fail to justify the district court’s disruptive 

vacatur remedy, either as a general matter or under the particular 

circumstances of this case. 

1. Respondents appear to acknowledge that traditional equitable principles require courts to tailor relief to the parties 

before them and would not countenance the sort of universal relief 

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granted here. Appl. 28-29. Respondents maintain (VanDerStok Opp. 

22-26) that the APA radically departed from that tradition in 

directing reviewing courts to “set aside” unlawful agency actions. 

But respondents cannot show that “Congress meant to upset the 

bedrock practice of case-by-case judgments with respect to the 

parties in each case or create a new and far-reaching power through 

this unremarkable language.” Arizona v. Biden, 40 F.4th 375, 396 

(6th Cir. 2022) (Sutton, C.J., concurring). 

Respondents do not dispute that, as a textual matter, the 

APA’s “set aside” language could equally be interpreted to be 

consistent with traditional equitable principles by directing 

courts to deny effect to unlawful agency action in resolving the 

cases before them. Appl. 31. Instead, respondents rely primarily 

on what they portray (VanDerStok Opp. 3, 23-26) as a longstanding 

interpretation of the APA among lower courts. But they acknowledge 

(id. at 25) that this Court has never endorsed that understanding.

In addition, respondents’ interpretation has no grounding in 

the contemporaneous interpretation of the APA. The statute was 

universally understood to codify, not upend, traditional remedies. 

See U.S. Dep’t of Justice, Attorney General’s Manual on the Administrative Procedure Act 93 (1947). Consistent with that understanding, “vacatur of rules as today understood” was “unknown 

when the APA was adopted and for at least two decades afterward.” 

John Harrison, Vacatur of Rules Under the Administrative Procedure 

Act, 40 Yale J. on Reg. 119, 120 (2023). Indeed, respondents cite 

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only one decision that could be construed as vacating agency regulation in the period shortly after the APA’s enactment. See 

VanDerStok Opp. 3, 23 (citing Cream Wipt Food Prods. Co. v. Federal 

Security Adm’r, 187 F.2d 789, 790 (3d Cir. 1951)). And that case 

involved a “special statutory review proceeding,” 5 U.S.C. 703, 

permitting a court of appeals to review an agency order and act 

directly on the order itself by “affirm[ing] the order” or 

“set[ting] it aside in whole or in part, temporarily or permanently.” Cream Wipt, 187 F.2d at 790 (quoting 21 U.S.C. 

371(f)(3)). The government acknowledges that such special review 

provisions can authorize courts to vacate a rule. But the fact 

that Congress has enacted statutes authorizing courts of appeals

to enter such relief in specific contexts further undermines respondents’ assertion that Section 706(2) implicitly authorizes 

every district court in the country to grant universal vacatur 

with respect to every agency action. 

Respondents’ other decisions (VanDerStok Opp. 22-23) are from 

the 1980s, 1990s, and 2000s. Decisions postdating the APA by many 

decades are not probative of the statute’s original meaning. And 

many of the decisions on which respondents rely share the same 

feature as Cream Wipt: They involved “special statutory review 

proceeding[s],” 5 U.S.C. 703, authorizing the D.C. Circuit or another court of appeals to review and act directly upon agency 

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actions. See, e.g., 28 U.S.C. 2342. Those special review provisions present distinct remedial questions.2

Where no such special statute applies, however, Section 703 

provides that “[t]he form of proceeding” under the APA is not 

direct appellate-type review of the agency’s action, but instead 

a traditional “form of legal action,” such as “actions for declaratory judgments or writs of prohibitory or mandatory injunction or 

habeas corpus.” 5 U.S.C. 703. Those forms of action do not 

authorize universal vacatur. And district courts’ routine assertion of authority to grant that relief is a development that has 

emerged only in “recent years” -- not a settled feature of APA 

litigation. United States v. Texas, 143 S. Ct. 1964, 1980 (2023) 

(Gorsuch, J., concurring in the judgment). Neither the APA’s text 

nor any precedent compels this Court to accept the resulting systemic harms, which have become increasingly apparent as the practice has spread. See ibid. 

2. Of course, this Court need not definitively resolve the 

dispute about nationwide vacatur in connection with this emergency 

application. But as three Justices recently emphasized, the ar2 The D.C. Circuit’s vacatur practices also reflect its 

unique jurisdiction. That court’s leading decision on vacatur 

reasons that because any party challenging federal agency action 

can ordinarily “seek review in the district court for the District 

of Columbia,” the precedential effect of a D.C. Circuit decision 

holding an agency action unlawful is effectively nationwide even 

if the judgment is limited to the parties. National Mining Ass’n 

v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (1998). Whatever 

the merits of that logic as applied to the D.C. Circuit, it does 

not justify extending the same sweeping remedial authority to every 

district court judge in the Nation. 

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guments against that form of relief are at minimum “serious.” 

Texas, 143 S. Ct. at 1980 (Gorsuch, J., concurring in the judgment). And those arguments are relevant to the stay because they 

bear directly on the government’s likelihood of success in overturning, or at least narrowing, the district court’s universal 

vacatur. 

At a minimum, the Court should not hesitate to narrow grants 

of universal relief where, as here, party-specific relief would 

fully redress respondents’ asserted injuries and the same issue is 

being actively litigated in other courts. Appl. 33-34. Even if 

the APA authorizes universal vacatur, it also preserves district 

courts’ authority to “deny relief on any other appropriate legal 

or equitable ground.” 5 U.S.C. 702. And respondents make little 

effort to show why a grant of universal relief was consistent with 

equity here. To the extent they address the question at all (e.g., 

VanDerStok Opp. 27-28), they presume that the district court’s 

judgment definitively establishes that the Rule is unlawful and 

thus justifies an order precluding its enforcement against anyone. 

But this case illustrates the fallacy of that presumption: Other 

courts have reached the opposite conclusion, and the district 

court’s vacatur denies effect to their decisions and pretermits 

the ordinary process of percolation. Appl. 30. 

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II. THE EQUITIES OVERWHELMINGLY FAVOR A STAY 

A. The district court’s judgment imposes ongoing and irreparable harm on the government and the public. The recent explosion in the availability and use of ghost guns is a grave threat 

to public safety: Ghost guns provide an attractive and all-tooeasy way for felons, minors, and others who are prohibited from 

purchasing firearms to evade the background-check requirement that 

would otherwise prevent them from easily obtaining firearms. The 

challenged provisions of the Rule ensure that ghost guns are 

properly regulated as firearms by requiring manufactures and 

sellers like respondents to place serial numbers on covered products, conduct background checks, and maintain records of their 

sales.3

Respondents quibble (VanDerStok Opp. 30-33) with the precise 

number of ghost guns that the Rule will prevent from reaching the 

hands of minors, felons, and other prohibited persons. But they 

cannot deny the basic point: Large and rapidly increasing numbers 

of ghost gun kits are being sold online; many of those guns inevitably wind up in the hands of prohibited persons; and tens of 

thousands of them have been recovered at crime scenes. 

Tellingly, respondents ignore the Act’s background-check 

requirement -- which would prevent respondents and other ghost3 Respondents object (VanDerStok Opp. 30-31) to the widely 

used term ghost gun, but respondents themselves have embraced it 

in their sales and marketing. Indeed, one of respondent Defense 

Distributed’s websites is ghostgunner.net. 

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gun manufacturers and sellers from selling parts kits and covered 

frames and receivers to prohibited persons. That alone would do 

much to slow the flow of ghost guns to criminals. And while 

respondents suggest that tracing may be ineffective in some instances, this Court has recognized that “[i]nformation about a gun 

buyer’s identity” plus “trac[ing]” broadly “help[] * * * fight 

serious crime.” Abramski, 573 U.S. at 182. 

Respondents fault (VanDerStok Opp. 35-36) the government for 

declining to seek stays of the district court’s preliminary injunctions (although the government appealed from those injunctions). The government and the public did suffer irreparable harm 

from the entry of those injunctions because they permitted manufacturing respondents to sell ghost guns. But the government 

should not be faulted for being judicious about seeking emergency 

relief. And its decision to forgo seeking such relief from the 

court’s prior party-specific injunctions provides no reason to 

deny relief as to the court’s subsequent and extraordinary remedy 

of universal vacatur -- which is substantially more destructive to 

public safety. Even if the equities are balanced only with respect 

to respondents, they still tip in the government’s favor: Excusing 

respondents from complying with the Rule during the pendency of 

the appeal will create significant loopholes in the Rule, while 

respondents will at most incur minor compliance costs. 

B. Respondents will sustain minimal, if any, injuries from 

a stay pending appeal. Respondents do not contest that they are 

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capable of bringing their manufacturing and selling practices into 

compliance with the Rule. Respondents also do not deny that the 

manufacturing respondents who are not already federal licensees 

can easily obtain licenses. Respondents assert only that, if they 

comply with the Rule, they will have to pay the “costs of compliance.” VanDerStok Opp. 38 (citation omitted). 

Those cost are minimal. The cost of a federal firearms license is $50 per year for manufacturers and $200 for three years 

for dealers. 18 U.S.C. 923(a)(1)(B) and (3)(B). Respondents do 

not discuss other possible compliance costs in this Court, but 

they are also likely to be minimal, as tens of thousands of other 

licensees comply with the Act on a regular basis. Compliance will 

be particularly straightforward for the manufacturing respondents 

who already have federal licenses -- and therefore presumably have 

processes in place for manufacturing and selling products in accordance with the Act. And individual respondents and the organizational respondents’ members will likewise incur insignificant 

costs: They need only purchase covered products “through a local 

[firearms licensee] and incur a $30 transfer charge plus additional 

time and expense associated with having to make an in-person purchase.” D. Ct. Doc. 89, at 7 (Oct. 1, 2022). Those costs are 

easily outweighed by the significant public safety interests supporting a stay. 

Respondents also suggest (VanDerStok Opp. 38) that they will 

be at risk of criminal prosecution if the Rule is stayed and they 

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choose to produce, sell, or purchase parts kits or covered frames 

or receivers. But respondents need only comply with the Act to 

avoid any such risk -- and, as discussed, such compliance is a de 

minimis burden. That is particularly so in light of the fact that 

all respondents have been required to comply with the Rule at 

numerous points since it took effect. Appl. 38. 

Respondents finally echo (VanDerStok Opp. 33-34; BlackHawk 

Opp. 1) the Fifth Circuit’s conclusion that vacatur “effectively 

maintains, pending appeal, the status quo that existed for 54 

years.” Appl. App. 3a. That is wrong three times over. First, 

the Rule has been the “status quo” for nearly a year for everyone 

except some respondents who secured preliminary relief (and their 

customers). Second, there was no such thing as a ghost gun in 

1968: Only over the last five years have manufacturing respondents 

and others dramatically changed the status quo by selling massive 

quantities of firearms outside the Act’s regulations. And third, 

as explained above, even before adopting the Rule ATF treated both 

weapon parts kits and readily completable frames and receivers as 

firearms under the Act. Maintaining the Rule would therefore only 

maintain the status quo. And, in any event, the balance of the 

equities here is straightforward: The public-safety interests in 

reversing the flow of ghost guns to dangerous and otherwise prohibited persons easily outweighs the minor costs that respondents 

will incur from complying with the Rule. 

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III. IN THE ALTERNATIVE, THE COURT MAY WISH TO TREAT THIS APPLICATION AS A PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT

A stay is clearly merited. But if the Court denies a stay or 

grants it only in part, it may wish to grant a writ of certiorari 

before judgment on the question whether the Rule’s challenged provisions are consistent with the statutory definition of “firearm.” 

Absent a stay, that issue would merit immediate resolution by this 

Court because of the massive public safety harms that result from 

even a brief continuation of the Rule’s vacatur. Appl. 40-41. 

Respondent BlackHawk asserts (Opp. 26) that the Fifth Circuit’s expedition of briefing and oral argument counsels against 

immediate review. But BlackHawk does not dispute that (1) it is 

impossible to know when that court will issue a decision and (2) 

if, as seems likely, the court does not do so until late 2023 or 

early 2024, this Court could not hear the case in the ordinary 

course until October Term 2024. That means the Court may not issue 

a decision on the merits until June 2025, nearly two years from 

now. In light of the urgent public safety issues and the nationwide scope of the vacatur, this Court should not permit the district court’s judgment to stand for that lengthy period of time. 

CONCLUSION 

The application for a stay of the district court’s judgment 

vacating the Rule should be granted. At a minimum, the Court 

should stay the district court’s judgment to the extent it applies 

to nonparties. And if the Court does not stay the vacatur in full, 

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it may wish to construe this application as a petition for a writ 

of certiorari before judgment, grant the petition, and set the 

case for expedited briefing and argument.4 

Respectfully submitted. 

ELIZABETH B. PRELOGAR 

 Solicitor General 

AUGUST 2023 

4 The government sought a stay of the district court’s 

July 5 final judgment, Appl. App. 44a-45a, on the understanding 

that the court’s June 30 vacatur order, id. at 6a-43a, merged into 

the final judgment and therefore ceased to have independent effect. 

See Dupree v. Younger, 143 S. Ct. 1382, 1389 (2023) (noting the 

“general rule” that a court’s earlier rulings “merge into the final 

judgment”) (citation omitted). But to the extent the Court concludes that the June 30 order might continue to have independent 

effect, the government respectfully requests that it adhere to the 

approach taken in the administrative stay granted on July 28 and 

stay both the June 30 order and the July 5 final judgment. 

Case 4:22-cv-00691-O Document 257-3 Filed 08/21/23 Page 21 of 21 PageID 5174