IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

SHERMAN DIVISION

BLAKE J. WATTERSON;

Plaintiff,

v.

BUREAU OF ALCOHOL, TOBACCO, 

FIREARMS AND EXPLOSIVES; 

STEVEN DETTELBACH, in his 

official capacity as Director of the 

Bureau of Alcohol, Tobacco, Firearms 

and Explosives; 

UNITED STATES DEPARTMENT 

OF JUSTICE; 

MERRICK GARLAND, in his official 

capacity as Attorney General of the 

United States; and

UNITED STATES OF AMERICA,

Defendants.

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Civil Action No. 4:23-cv-00080

PLAINTIFF’S REPLY IN SUPPORT

OF HIS MOTION FOR RELIEF UNDER 5 U.S.C. § 705 OR, 

ALTERNATIVELY, FOR A PRELIMINARY INJUNCTION 

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TABLE OF CONTENTS

TABLE OF AUTHORITIES...................................................................................................ii

I. PLAINTIFF IS LIKELY TO SUCCEED ON THE MERITS .............................................. 2

A. The Rule and Statutes (If the Rule Is a Proper Interpretation) 

Violate the Second Amendment............................................................... 2

B. The Rule Violates Non-Delegation Principles......................................... 3

C. The Rule Exceeds the Department’s Statutory Authority ..................... 3

II. PLAINTIFF WILL SUFFER IRREPARABLE HARM IN THE ABSENCE OF RELIEF ......... 5

III. THE BALANCE OF THE EQUITIES AND PUBLIC INTEREST FAVOR PLAINTIFF.......... 5

CERTIFICATE OF SERVICE ................................................................................................ 7

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TABLE OF AUTHORITIES

Cases:

District of Columbia v. Heller, 

554 U.S. 570 (2008)............................................................................................. 2

Ezell v. City of Chicago, 

651 F.3d 684 (7th Cir. 2011)............................................................................... 2

Heller v. District of Columbia, 

670 F.3d 1244 (D.C. Cir. 2011) ........................................................................... 2

Jarkesy v. SEC, 

34 F.4th 446 (5th Cir. 2022) ............................................................................... 3

N.Y. State Rifle & Pistol Ass’n v. Bruen, 

142 S. Ct. 2111 (2022)..................................................................................... 2, 3

Rigby v. Jennings, 

No. 21-1523, 2022 U.S. Dist. LEXIS 172375 (D. Del. 2022).............................. 2

United States v. Rahimi, 

No. 21-11001, 2023 U.S. App. LEXIS 2693 (5th Cir. 2023)........................... 2, 3

Vanderstok v. Garland, 

No. 4:22-CV-00691, 2022 U.S. Dist. LEXIS 180398 (N.D. Tex. 2022) .............. 5

West Virginia v. EPA, 

142 S. Ct. 2587 (2022)......................................................................................... 4

Wilder v. Stephen F. Austin State Univ., 

552 F. Supp. 3d 639 (E.D. Tex. 2021)................................................................. 5

Statutes:

5 U.S.C. § 705................................................................................................................. 5

26 U.S.C. § 5845............................................................................................................. 1

26 U.S.C. § 7805............................................................................................................. 4

Regulations:

Factoring Criteria for Firearms with Attached “Stabilizing Braces,” 88 Fed. Reg. 

6,478 (Jan. 31, 2023)....................................................................................... 1, 2

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The defendants (collectively, the “Department) cannot rebut Plaintiff 

Watterson’s showing that the Court should postpone or stay the final rule’s effective 

date or, alternatively, grant a preliminary injunction. Accordingly, the Department 

resorts to mischaracterizing Watterson’s arguments and the final rule, along with 

disregarding binding case law. The Court should not be taken in by this misdirection.

To address a misrepresentation infecting the entire response: Watterson has 

no means of lawfully possessing—right now—a pistol equipped with a stabilizing 

brace under the rule.1 Watterson did not possess a pistol with an attached stabilizing 

brace when the rule was published. See Factoring Criteria for Firearms with Attached

“Stabilizing Braces,” 88 Fed. Reg. 6,478 (Jan. 31, 2023) (the “Rule”); § 705 Mot., ECF 

No. 7 at 2; Summ. J. Mot., ECF No. 6 at 5, Ex. 3 at ¶ 14. The Rule’s “enforcement 

discretion” scheme thus does not apply to Watterson because it applies only to 

possessors of a pistol with an attached stabilizing brace on its publication date. See, 

e.g., Rule, 88 Fed. Reg. at 6,480-81; § 705 Mot. at 2; Summ. J. Mot. at 4-5, Ex. 15 at 

MSJ_041 (“The tax forbearance only pertains to firearms with an attached

‘stabilizing brace’ in your possession at the time the final rule is published.”); Compl., 

ECF No. 1 at 28-31. That means Watterson cannot possess a pistol with an attached 

stabilizing brace today (by attaching his stabilizing brace or purchasing a pistol with 

a brace attached) without risking a 10-year prison sentence. See Rule, 88 Fed. Reg. 

at 6,481 (explaining “the 120-day compliance period” does not apply “with respect to 

any new making” of “a weapon with an attached ‘stabilizing brace’” and that “any 

person” who “any time after the publication date” “newly makes” such a weapon may 

1 The response contains too many mischaracterizations to address them all, which 

may make an oral hearing helpful. Regardless, the Court should not be misled into 

thinking the image (at 16) showing a gun with a silencer and vertical fore-grip (which 

would subject that gun to additional restrictions, 26 U.S.C. § 5845(a); NFA Handbook

§ 2.1.5, https://perma.cc/P3NL-G35G) is an accurate depiction of Watterson’s pistol. 

Nor should it believe that Watterson thinks that his gun (if he attached the brace) 

would be intended for shoulder fire. See Summ. J. Mot. Ex. 3 at ¶¶ 10-12, 19.

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be prosecuted); Summ. J. Mot. Ex. 3 at ¶¶ 26-27, 29-31.2 Watterson therefore suffers 

a daily deprivation of his Second Amendment rights, which is irreparable harm. 

Not only has Watterson shown irreparable harm, but he has also shown he is

likely to succeed on his claims. He has likewise shown the equities and public interest 

weigh in favor of granting relief. The Court should grant the § 705 Motion.

I. PLAINTIFF IS LIKELY TO SUCCEED ON THE MERITS.

A. The Rule and Statutes (If the Rule Is a Proper Interpretation) 

Violate the Second Amendment. 

The Department misunderstands the Second Amendment’s scope and the 

analytical approach dictated by N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 

2111 (2022). The Rule (and statutes if the Rule properly interprets them) regulates 

conduct protected by the Second Amendment. The Rule currently prevents Watterson 

from making or possessing an arm that “facilitate[s] armed self-defense,” id. at 

2132—a pistol with a stabilizing brace (i.e. a short-barreled rifle under the Rule). See

§ 705 Mot. at 1-5; United States v. Rahimi, No. 21-11001, 2023 U.S. App. LEXIS 2693, 

at *14 (5th Cir. 2023) (“possession of a pistol and a rifle easily falls within the purview 

of the Second Amendment”); Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir. 2011)

(right to make self-defense effective); Rigby v. Jennings, No. 21-1523, 2022 U.S. Dist. 

LEXIS 172375, at *18-19 (D. Del. 2022) (right to manufacture). And Watterson’s 

ability to possess another type of weapon—a pistol—does not alter the analysis. See 

District of Columbia v. Heller, 554 U.S. 570, 629 (2008); Heller v. District of Columbia, 

670 F.3d 1244, 1289 (D.C. Cir. 2011) (Kavanaugh, J., dissenting).

That means the Department “bears the burden” of showing the Rule’s (and the 

statutes’) restrictions are consistent with historical tradition whether those 

restrictions are a complete ban or a ban on possession until a person applies to 

2 Although the Department may wait until 60 days after the Rule’s publication to 

begin prosecution, it could subsequently prosecute Watterson if he had attached his 

stabilizing brace to his pistol during those 60 days. See Rule, 88 Fed. Reg. at 6,481. 

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register, waits for approval, and pays a tax. See Bruen, 142 S. Ct. at 2122, 2130; 

Rahimi, 2023 U.S. App. LEXIS 2693 at *6. The Department fails to carry its burden. 

See § 705 Mot. at 5; Summ. J. Mot. at 13-15. It cannot point to historical analogues

that similarly restrict the right to make or possess a gun for self-defense in the home. 

Instead, it cites dissimilar restrictions (at 31-33)—many of which dated far after 

ratification—that required licenses (or taxes) to hunt or to sell or publicly carry

certain firearms, assessed racially motivated taxes, or imposed restrictions so 

communities would have adequate operational weapons and powder for defense.

Nor can the Department evade its burden by falsely claiming pistols with 

braces are dangerous and unusual weapons that fall outside the Second Amendment’s 

scope based on “obsolete” precedent. See Rahimi, 2023 U.S. App. LEXIS 2693, at *6-

7 (“Bruen clearly fundamentally change[d] our analysis of laws that implicate the 

Second Amendment, rendering our prior precedent obsolete.” (quotation omitted)). In 

any event, its own argument (at 30) further demonstrates that pistols with stabilizing 

braces and short-barreled rifles are not unusual because they are possessed in at least 

46 states. See § 705 Mot. at 4; Summ. J. Mot. at 11-12, Ex. 12 at MSJ_033.

B. The Rule Violates Non-Delegation Principles. 

Although the Department claims (at 33) the statutes provide “intelligible 

standards,” it points to nothing in the statutes that restricts its discretion. This “total 

absence of guidance is impermissible under the Constitution” and the Fifth Circuit’s 

opinion in Jarkesy v. SEC, 34 F.4th 446, 462 (5th Cir. 2022), which could be why the 

Department ignores Jarkesy’s existence. And the lack of guidance here is especially

unacceptable when unelected bureaucrats are exercising the exclusive legislative 

power of making policy decisions that could subject over a million Americans to 10 

years’ imprisonment. See § 705 Mot. at 2, 6-8; Summ. J. Mot. at 19-24.

C. The Rule Exceeds the Department’s Statutory Authority. 

The Rule is a legislative, substantive rule that rewrites the statutes, including 

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by creating a compliance scheme,3 and decides millions of Americans are guilty of 

felonies. See § 705 Mot. at 2, 8; Summ. J. Mot. at 24-25, 8-9. Such a transformative 

policy decision—with criminal consequences for millions—is one of vast “political 

significance” and of “highly consequential power,” making the major question 

doctrine applicable and fatal to the Rule. See West Virginia v. EPA, 142 S. Ct. 2587, 

2608-09 (2022). The Department’s contrary arguments (at 22) are wrong as are its 

suggestions the Rule lacks economic significance, is not novel, or does not intrude on 

an area of state regulation: the police power. See § 705 Mot. at 8-9; Summ. J. Mot. at 

24-25; Compl. at 39-40; Final Reg. Analysis at 63, 67, https://tinyurl.com/2zdw3rmn.

In any event, the Department lacks the authority to expand definitions and 

criminal liability. See § 705 Mot. at 9-10; Summ. J. Mot. at 25-29. As the Department 

previously recognized, the statutory definitions exclude pistols with stabilizing braces 

that are designed to brace weapons against forearms;4 they cannot mean that 99% of 

pistols with stabilizing braces are short-barreled rifles that are intended to be fired 

3 Contrary to the response (at n.8), Watterson does not challenge the compliance 

options for harming him. Rather the fact “the Department lacks the authority to 

provide compliance options that are outside the statutory scheme” further proves the 

Rule exceeds its statutory authority. § 705 Mot. at 8-10. Moreover, Watterson 

supported this argument, such as by citing (at 10) ATF materials recognizing the 

statutes do not provide a “mechanism for a possessor to register an unregistered NFA 

firearm already possessed by the person,” Summ. J. Mot. Ex. 13 at MSJ_034, and a 

case explaining agencies cannot edit statutes to mitigate the unreasonableness of 

their interpretations. Nor does authority to make revenue regulations retroactive 

under 26 U.S.C. § 7805(b) show the Department can confer lawful-possession status 

in violation of statutory requirements it claims apply.

4 Watterson never argued “all pistols equipped with stabilizing braces are ‘necessarily 

exclude[d]’ from the definition of ‘rifle;’” purported braces are “categorically” designed 

to be fired from the forearm; a manufacturer’s description is determinative; or 

objective design features are irrelevant. Opp. at 17-20. Instead, he argued (and 

showed) that braces designed to brace a weapon against a forearm (like his) are not 

shoulder stocks that transform a pistol into a rifle and that the Rule’s factors do not

objectively show a gun is a rifle: a weapon “designed and intended to be fired” from 

the shoulder. See § 705 Motion at 1, 8-9; Summ. J. Mot. at 2, 25-27, Exs. 3-9.

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from the shoulder like the Department now claims. See Final Reg. Analysis at 21, 

https://tinyurl.com/2zdw3rmn; Rule, 88 Fed. Reg. at 6,480. The Rule therefore 

rewrites the statutes and exceeds the Department’s authority. 

II. PLAINTIFF WILL SUFFER IRREPARABLE HARM IN THE ABSENCE OF RELIEF.

Absent relief, Watterson faces irreparable harm and a credible prosecution 

risk. See § 705 Mot. at 1-2, 10-11; supra pp. 1-2. Even alleged constitutional harm can 

constitute irreparable harm. See Vanderstok v. Garland, No. 4:22-CV-00691, 2022 

U.S. Dist. LEXIS 180398, at *14 (N.D. Tex. 2022). And “it is no answer to say that 

[he] may avoid the harm by complying with an unlawful agency rule” and enduring a 

tax, lengthy waiting period, and ongoing burdens on a registered weapon. Id. at *26 

(quotation omitted); see § 705 Mot. at 2; Summ. J. Mot. at 2, 5, Ex. 3 at ¶¶ 26-31.

III. THE BALANCE OF THE EQUITIES AND PUBLIC INTEREST FAVOR PLAINTIFF.

It is in the public interest to stay the Rule and stop constitutional violations.

See § 705 Mot. at 11-13. Nor has the Department offered offsetting factors that 

outweigh this interest. It does dispute that—despite millions of braces—it cites “only 

two crimes and less than 300 investigations” involving pistols with braces in a decade. 

Id. at 13. And it does not explain how the Rule makes anyone safer by requiring those

who already possess such weapons (or wish to attach braces they own to their 

weapons) to file for registration or risk prosecution while litigation is pending. After 

all, allowing registration of already-possessed weapons does not align with the 

statute, which requires registration before possession. See supra n.3.

Therefore, the Court can and should, postpone or stay the Rule’s effective date

or grant an injunction. See § 705 Mot. at 13-15. The Department forfeited any 

arguments that the Court cannot (1) postpone the effective date if the true effective 

date has not passed or (2) stay the effective date and set a new one “to preserve status 

or rights pending conclusion of the review proceedings,” 5 U.S.C. § 705; see Wilder v. 

Stephen F. Austin State Univ., 552 F. Supp. 3d 639, 657 (E.D. Tex. 2021).

Case 4:23-cv-00080-ALM Document 25 Filed 02/27/23 Page 8 of 10 PageID #: 475
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Date: February 27, 2023, Respectfully submitted,

/s/Autumn Hamit Patterson

ROBERT HENNEKE

Texas Bar No. 24046058

rhenneke@texaspolicy.com

CHANCE WELDON

Texas Bar No. 24076767

cweldon@texaspolicy.com

AUTUMN HAMIT PATTERSON

Texas Bar No. 24092947

apatterson@texaspolicy.com

CLAYTON WAY CALVIN

Texas Bar No. 24132780

ccalvin@texaspolicy.com

TEXAS PUBLIC POLICY FOUNDATION

901 Congress Avenue

Austin, Texas 78701

Telephone: (512) 472-2700

Facsimile: (512) 472-2728

Counsel for Plaintiff

Case 4:23-cv-00080-ALM Document 25 Filed 02/27/23 Page 9 of 10 PageID #: 476
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CERTIFICATE OF SERVICE

I certify that on February 27, 2023, I electronically filed the foregoing 

document with the Clerk of Court using this Court’s CM/ECF system, which will 

notify all counsel of record of such filing. 

/s/Autumn Hamit Patterson

AUTUMN HAMIT PATTERSON

Case 4:23-cv-00080-ALM Document 25 Filed 02/27/23 Page 10 of 10 PageID #: 477