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; 

UNITED STATES OF AMERICA

Defendants.

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Civil Action No. 4:23-cv-00080

MOTION FOR SUMMARY JUDGMENT 

 

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TABLE OF CONTENTS

Table of Authorities .......................................................................................................iii 

Introduction ................................................................................................................... 1 

Issues to be Decided by the Court................................................................................. 1 

Statement of Undisputed Material Facts ..................................................................... 2 

Standard of Review........................................................................................................ 5 

Summary of the Argument............................................................................................ 6 

Argument and Authorities ............................................................................................ 7 

I. The Court Has Jurisdiction and Can Review the Rule ..................................... 7 

A. Plaintiff Has Article III Standing ................................................................. 7 

B. The Court Can Decide Plaintiff’s Claims ..................................................... 8 

II. Criminalizing the Possession of Unregistered Pistols With Stabilizing

Braces Violates the Second Amendment....................................................... 10

III. The Rule Violates Article I and Constitutional Separation-of-Powers

Principles ........................................................................................................ 15

A. The Rule Is Unconstitutional Because Congress Cannot Delegate

Legislative Power...................................................................................... 16

B. Because Deciding What Is a Felony Is a Core Legislative Power,

Congress Cannot Delegate the Decision to Criminalize Possession of

Unregistered Pistols with Stabilizing Braces.......................................... 19

C. Even if Deciding What Conduct to Criminalize Could Be Delegated,

Congress Failed to Provide an Intelligible Principle to Constrain the

Department’s Discretion........................................................................... 22

IV. The Department Lacks the Statutory Authority to Decide What Conduct to

Criminalize ..................................................................................................... 24

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A. There is No Clear Congressional Authorization to Allow the Department 

to Make Consequential Decisions Infringing on Individual Liberties.... 24

B. The Department Lacks the Statutory Authority to Rewrite the National 

Firearms Act and Gun Control Act.......................................................... 25

V. The Court Should Grant the Relief Requested in the Complaint................ 29

Conclusion.................................................................................................................... 30

Certificate of Service.................................................................................................... 32

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iii

TABLE OF AUTHORITIES

Cases

A. L. A. Schechter Poultry Corp. v. United States, 

295 U.S. 495 (1935)..................................................................................... 15, 17

Am. Mining Cong. v. Mine Safety & Health Admin., 

995 F.2d 1106 (D.C. Cir. 1993) ........................................................................... 9

Anderson v. Liberty Lobby, Inc., 

477 U.S. 242 (1986)............................................................................................. 6

Aposhian v. Wilkinson, 

989 F.3d 890 (10th Cir. 2021) (en banc)........................................................... 20

Ben. Recovery, Inc. v. Donelon, 

521 F.3d 326 (5th Cir. 2008)............................................................................. 16

Bennett v. Spear, 

520 U.S. 154 (1997)............................................................................................. 8

Bowen v. Georgetown Univ. Hosp., 

488 U.S. 204 (1988)........................................................................................... 29

Caetano v. Massachusetts, 

577 U.S. 411 (2016)..................................................................................... 11, 12

Cargill v. Garland, 

No. 20-51016, 2023 U.S. App. LEXIS 344 (Jan. 6, 2023) .......................... 20, 27

Clinton v. City of New York, 

524 U.S. 417 (1998)........................................................................................... 15

Collins v. Yellen, 

141 S. Ct. 1761, 1780 (2021)....................................................................... 17, 18

Consumer Fin. Prot. Bureau v. All Am. Check Cashing, Inc., 

33 F.4th 218 (5th Cir. 2022) ............................................................................. 15

Contender Farms, L.L.P. v. U.S. Dep’t of Agric., 

779 F.3d 258 (5th Cir. 2015)........................................................................... 7, 8

Data Mktg. P’ship, LP v. DOL, 

45 F.4th 846 (5th Cir. 2022) ............................................................................. 30

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iv

District of Columbia v. Heller, 

554 U.S. 570 (2008)........................................................................................... 10

DOC v. New York,

139 S. Ct. 2551 (2019)....................................................................................... 30

DOT v. Ass’n of Am. R.R., 

575 U.S. 43 (2015)........................................................................... 17, 21, 22, 24

Firearms Policy Coal., Inc. v. McCraw, 

No. 4:21-cv-1245-P, 2022 U.S. Dist. LEXIS 152834 (N.D. Tex. Aug. 25, 2022)

........................................................................................................................... 11

Freytag v. Commissioner, 

501 U.S. 868 (1991)........................................................................................... 17

Gonzales v. Oregon, 

546 U.S. 243 (2006)........................................................................................... 29

Grosjean v. Am. Press Co., 

297 U.S. 233 (1936)........................................................................................... 15

Gun Owners of Am., Inc. v. Garland, 

19 F.4th 890 (6th Cir. 2021) (en banc) ........................................... 20, 21, 25, 29

Gundy v. United States, 

139 S. Ct. 2116 (2019)......................................................... 17, 18, 19, 21, 22, 23

Hamilton v. Segue Software Inc., 

232 F.3d 473 (5th Cir. 2000)............................................................................... 6

Harrison Co., L.L.C. v. A-Z Wholesalers, Inc., 

44 F.4th 342 (5th Cir. 2022) ............................................................................... 6

Heller v. District of Columbia, 

670 F.3d 1244 (D.C. Cir. 2011) ................................................................... 11, 14

Indus. Union Dep’t, AFL-CIO v. API, 

448 U.S. 607 (1980)........................................................................................... 19

INS v. Chadha, 

462 U.S. 919 (1983)........................................................................................... 23

Jarkesy v. SEC, 

34 F.4th 446 (5th Cir. 2022) ........................................................... 17, 18, 22, 23

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Kingdomware Techs., Inc. v. United States, 

579 U.S. 162 (2016)........................................................................................... 30

Larson v. Domestic & Foreign Commerce Corp.,

337 U.S. 682 (1949)............................................................................................. 9

Liquid Carbonic Indus. Corp. v. FERC, 

29 F.3d 697 (D.C. Cir. 1994) ............................................................................... 8

Loving v. United States, 

517 U.S. 748 (1996)........................................................................................... 21

Mata v. Lynch, 

576 U.S. 143 (2015)........................................................................................... 30

Miller v. Bonta, 

542 F. Supp. 3d 1009 (S.D. Cal. 2021).............................................................. 13

Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 

460 U.S. 575 (1983)........................................................................................... 15

Mistretta v. United States, 

488 U.S. 361 (1989)..................................................................................... 18, 23

Morrow v. Harwell, 

768 F.2d 619 (5th Cir. 1985)............................................................................. 30

Murphy v. Guerrero, 

No. 1:14-CV-00026, 2016 U.S. Dist. LEXIS 135684 (D. N. Mar. I. Sept. 28, 

2016) .................................................................................................................. 14

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

142 S. Ct. 2111 (2022)........................................................................... 10, 11, 14

Netchoice, L.L.C. v. Paxton, 

49 F.4th 439 (5th Cir. 2022) ............................................................................. 16

Nuwer v. Mariner Post-Acute Network, 

332 F.3d 310 (5th Cir. 2003)............................................................................... 6

Panama Ref. Co. v. Ryan, 

293 U.S. 388 (1935)........................................................................................... 19

Paul v. United States, 

140 S. Ct. 342 (2019)......................................................................................... 19

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vi

Rigby v. Jennings, 

No. 21-1523 (MN), 2022 U.S. Dist. LEXIS 172375 (D. Del. Sept. 23, 2022)... 12

Sessions v. Dimaya, 

138 S. Ct. 1204 (2018)................................................................................. 21, 23

Staples v. United States, 

511 U.S. 600 (1994)........................................................................................... 21

Susan B. Anthony List v. Driehaus, 

573 U.S. 149 (2014)......................................................................................... 7, 8

Terkel v. CDC, 

521 F. Supp. 3d 662 (E.D. Tex. 2021)............................................................... 30

Texas v. Biden, 

No. 2:21-CV-067-Z, 2021 U.S. Dist. LEXIS 195393 (N.D. Tex. July 19, 2021)

........................................................................................................................... 10

Texas v. Rettig, 

993 F.3d 408, 409 (5th Cir. 2021)..................................................................... 16

Texas v. United States, 

50 F.4th 498 (5th Cir. 2022) ............................................................................... 9

Texas v. United States, 

809 F.3d 134 (5th Cir. 2015), aff’d 577 U.S. 1101 (2016) .............................. 8, 9

Texas v. United States, 

86 F. Supp. 3d 591 (S.D. Tex. 2015) ................................................................... 8

Touby v. United States, 

500 U.S. 160 (1991)..................................................................................... 22, 23

United States v. Apel, 

571 U.S. 359 (2014)........................................................................................... 27

United States v. Davis, 

139 S. Ct. 2319 (2019)....................................................................................... 15

United States v. George, 

228 U.S. 14 (1913)............................................................................................. 20

United States v. Granderson, 

511 U.S. 39 (1994)............................................................................................. 27

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vii

United States v. Grimaud, 

220 U.S. 506 (1911)........................................................................................... 21

United States v. Hudson & Goodwin, 

11 U.S. (7 Cranch) 32 (1812)............................................................................. 21

United States v. Kuzma,

967 F.3d 959 (9th Cir. 2020)............................................................................. 28

United States v. Lopez, 

514 U.S. 549 (1995)........................................................................................... 24

United States v. Standard Brewery, Inc., 

251 U.S. 210 (1920)........................................................................................... 20

Util. Air Regulatory Grp. v. EPA, 573 U.S. 302 (2014) .............................................. 27

Vanderstok v. Garland, 

No. 4:22-cv-00691-O, 2022 U.S. Dist. LEXIS 159459 (N.D. Tex. Sept. 2, 2022)

..................................................................................................................... 26, 28

Wayman v. Southard, 

23 U.S. 1 (1825)................................................................................................. 19

Weiss v. United States, 

510 U.S. 163 (1994)........................................................................................... 20

West Virginia v. EPA, 

142 S. Ct. 2587 (2022)....................................................................................... 24

Whitman v. Am. Trucking Ass’ns, 

531 U.S. 457 (2001)........................................................................................... 18

Young Conservatives of Tex. Found. v. Univ. of N. Tex., 

597 F. Supp. 3d 1062 (E.D. Tex. 2022)............................................................... 5

Yukutake v. Conners, 

554 F. Supp. 3d 1074 (D. Haw. 2021)............................................................... 11

Statutes

18 U.S.C. § 921......................................................................................................... 3, 28

18 U.S.C. § 922........................................................................................................... 2, 3

18 U.S.C. § 926....................................................................................................... 23, 25

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26 U.S.C. § 5845................................................................................................. 3, 25, 28

26 U.S.C. § 5861......................................................................................................... 2, 3

26 U.S.C. § 7801..................................................................................................... 23, 25

28 U.S.C. § 2201........................................................................................................... 29

5 U.S.C. § 704................................................................................................................. 8

5 U.S.C. § 706............................................................................................................... 30

Other Authorities

114 Cong. Rec. at 14,792-93 (May 23, 1968)............................................................... 28

David B. Kopel, The Second Amendment in the Tenth Circuit: Three Decades of 

(Mostly) Harmless Error, 86 DENV. U.L. REV. 901 (2009)....................................... 14

Ilan Wurman, Nondelegation at the Founding, 130 YALE L. J. 1490, 1504, 1523-26 

(2021) ........................................................................................................................ 17

Jamie G. McWilliam, The Unconstitutionality of Unfinished Receiver Bans, 2022 

HARV. J.L. & PUB. POL’Y PER CURIAM 9, 12-13, 15-16 (Spring 2022)...................... 13

Joseph G.S. Greenlee, The American Tradition of Self-Made Arms, 54 St. Mary’s L.J. 

35, 45, 61-65, 71-78 (2023)....................................................................................... 13

Stephen P. Halbrook, FIREARMS LAW DESKBOOK, § 7:7 (Oct. 2022 Update) ............. 28

The Federalist No. 47 (James Madison) ..................................................................... 17

Rules

Fed. R. Civ. P. 56 ........................................................................................................... 5

Regulations

86 Fed. Reg. 30,826 (June 10, 2021) ....................................................................... 2, 26

88 Fed. Reg. 6,478 (Jan. 31, 2023) ...................................................................... passim

Constitutional Provisions

U.S. Const. art. I, § 1 ................................................................................................... 17

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INTRODUCTION

The defendants (collectively, the “Department”) have issued a final rule that 

seeks to rewrite the National Firearms Act and Gun Control Act by bureaucratic 

diktat and transform pistols with stabilizing braces into short-barreled rifles that 

must be registered. According to this rule, millions of law-abiding citizens who 

possess unregistered pistols with stabilizing braces are criminals guilty of a felony 

that is punishable by up to 10 years in prison. Moreover, to avoid prosecution under 

this rule, persons would need to comply with unlawful restrictions on their right to 

make, possess, transfer, and travel with pistols equipped with stabilizing braces. 

This rule thus violates the Second Amendment, which unequivocally declares 

that the right to keep and bear arms “shall not be infringed.” It also violates the 

structural provisions in the Constitution that vest Congress—not agencies—with the 

authority to rewrite the law and create crimes with 10-year prison sentences. The 

rule additionally exceeds the Department’s statutory authority. Although the 

Department will wrongly dispute these legal conclusions, it cannot dispute the 

underlying material facts. The plaintiff is therefore entitled to summary judgment. 

ISSUES TO BE DECIDED BY THE COURT

1. Do restrictions on the right to possess pistols with stabilizing braces, 

including requiring persons to pay $200 and wait several months to a year for 

registration applications to be processed, violate the Second Amendment right to 

keep and bear arms?

2. Can Congress delegate the core legislative power of deciding what 

conduct to make a felony by allowing the Department to expand statutory definitions 

and thus criminal liability? 

3. Can the Department define rifles (and thus short-barreled rifles) to 

include pistols with stabilizing braces and thereby make possession of unregistered 

pistols with stabilizing braces a crime without explicit statutory authority? 

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STATEMENT OF UNDISPUTED MATERIAL FACTS

Stabilizing braces were invented to help disabled veterans shoot large pistols, 

such as AR-15-style pistols, safely with one hand. See Ex. 2: ATF, Factoring Criteria 

for Firearms With Attached “Stabilizing Braces,” 86 Fed. Reg. 30,826, 30,827 (June 

10, 2021) (“Proposed Rule”); Ex. 4: U.S. Patent No. 8,869,444 B2 (Oct. 28, 2014), at 

MSJ_001-3. As patent applications show, the braces are designed to stabilize a pistol 

against a shooter’s forearm, which enables safer and more accurate shooting:1

. .

Accordingly, as the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”)

previously recognized, a pistol equipped with a stabilizing brace is not intended to be 

fired from the shoulder. See, e.g., Ex. 6: ATF Letter (Nov. 26, 2012); Ex. 7: ATF Letter 

(Dec. 22, 2015); Ex. 8: ATF Letter (Jan. 12, 2017); Ex. 9: ATF Letter (Mar. 21, 2017).

ATF thus approved the use of stabilizing braces on large pistols and stated that a 

brace did not transform a pistol into a short-barreled rifle: a weapon that is designed 

to be fired from the shoulder. See id. 

This classification is significant because, unlike pistols, short-barreled rifles 

must be registered and are subject to additional restrictions, including on their 

transportation and transfer. 26 U.S.C. § 5861; 18 U.S.C. § 922(a)(1), (a)(4), (b)(4). 

Federal statutes define a rifle (and thus a short-barreled rifle) as “a weapon designed 

or redesigned, made or remade, and intended to be fired from the shoulder.” 26 U.S.C. 

1 See, e.g., Ex. 4 at MSJ_001-4; Ex. 5: U.S. Patent No. 9,664,477 Bl (May 30, 2017), at 

MSJ_005-08.

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94 

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§ 5845(c); 18 U.S.C. § 921(a)(7)-(8).2 To lawfully make and register a short-barreled 

rifle, a person must file a “Form 1” with ATF, provide fingerprints and photographs, 

pay a $200 making tax, and obtain a law enforcement certification. Ex. 10: ATF

Handbook at § 3.2.3; Ex. 11: Form 1 at MSJ_026, 30. Possession of an unregistered 

short-barreled rifle is punishable by 10 years in prison and a $250,000 fine, and there 

are severe criminal penalties, including imprisonment, for non-compliance with other 

statutory restrictions on them. 26 U.S.C. §§ 5681, 5871, 5872; 18 U.S.C. §§ 922(a)(1),

(4), (b)(4); 3571; see Compl. at ¶¶ 21-23, 27-29.

Over the past decade, more than a million law-abiding individuals have 

purchased stabilizing braces or pistols with stabilizing braces attached and enjoyed 

the ability to shoot larger pistols more safely and accurately without registering their 

pistols as short-barreled rifles. See Ex. 12: CRS Report at MSJ_033; Ex. 1: ATF, 

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

6,478, 6,560, 6,564 (Jan. 31, 2023) (the “Rule”); Ex. 4 at MSJ_003; Ex. 5 at MSJ_007-

8. Plaintiff Blake Watterson is an individual who purchased a stabilizing brace after 

learning that it could enable him to shoot his pistol more safely and accurately, which 

could make it more effective for self-defense purposes. See Ex. 3: Pl.’s Decl. at ¶¶ 4, 

6-10, 15. Even with the prevalence of stabilizing braces (3 million to 40 million) and 

the lack of restrictions on them, see Proposed Rule, 86 Fed. Reg. at 30,845; Ex. 12 at 

MSJ_033, the braces have been used in relatively few crimes according to the 

Department’s own evidence, see Rule, 88 Fed. Reg. at 6,499 (noting two crimes where 

stabilizing braces were used and 272 investigations involving braces). 

The Department nevertheless published a final rule amending the definition 

of short-barreled rifles in the National Firearms Act and the Gun Control Act to 

2 The National Firearms Act only uses the term “rifle” as opposed to “short-barreled 

rifle;” however, guns with barrels greater than 16 inches are excluded from the 

definition. See 26 U.S.C. § 5845(a)(3). 

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include pistols with stabilizing braces on January 31, 2023. See id. at 6,480. The Rule 

amends the definition of rifle to include a multi-factor test and deems nearly all, if 

not all, pistols equipped with a stabilizing brace as short-barreled rifles. See id. at 

6,480, 6,518; see also Compl. at ¶¶ 63-79. The Rule states that it “overrul[es] ATF’s 

previous classification letters” and that even “possessors of firearms equipped with 

‘stabilizing braces’ that were at issue in those letters” may currently possess

unregistered short-barreled rifles in violation of federal law. Rule, 88 Fed. Reg. at 

6,480; see id. (“all such prior classifications are no longer valid”), 6,502, 6,569

(similar). According to the Rule, over a million persons unlawfully possess 

unregistered short-barreled rifles and are thereby guilty of a felony that carries a 10-

year sentence. See id. at 6,480, 6,482, 6,563, 6,573.

The Rule sets forth an “enforcement discretion” scheme, which provides five 

options that would allow some affected persons to comply with the statutory 

requirements (as modified by the Rule), possess a pistol with a stabilizing brace, and 

avoid prosecution. See id. at 6,480-81, 6,507, 6,549, 6,570-71; see Compl. at ¶¶ 84-93.

For example, a person who possessed an unregistered pistol equipped with a 

stabilizing brace on the day the Rule was published, may submit a Form 1 within 120 

days after the Rule’s publication, Rule, 88 Fed. Reg. at 6,480-81, 6,570, even though 

there is typically “no mechanism for a possessor to register an unregistered [National 

Firearm Act] firearm already possessed by the person,” Ex. 13: ATF, National 

Firearms Act at MSJ_034; see Ex. 10 § 3.3. If this option is chosen, the Rule waives 

the $200 tax and deems those persons “in compliance with the statutory requirements 

between the date on which a person’s application is filed and the date” of ATF’s 

decision. Rule, 88 Fed. Reg. at 6,480-81, 6,571; see id. at 6,507, 6,549 (explaining the 

registration option allows a person “to lawfully possess” the pistol). In contrast, there 

is no compliance period for those who did not possess a pistol with a stabilizing brace 

on the Rule’s publication date, and the Rule warns that anyone who transfers or 

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“newly makes” a pistol with a stabilizing brace (e.g., attaching a stabilizing brace to 

a pistol) after the publication date is subject to prosecution. See id. at 6,480-81. 

The Rule injures everyone who possesses or wants to possess a pistol equipped 

with a stabilizing brace, including Watterson. Ex. 3 at ¶¶ 14-15, 26-30; see Ex. 14: 

Final Reg. Analysis at MSJ_037 (describing “those who intend to purchase” as 

affected), 38 (explaining the Rule “would affect . . . individuals who intend to 

purchase a firearm and attach a ‘stabilizing brace’ to the firearm”). The Rule 

currently prevents Watterson from owning a pistol equipped with a stabilizing brace 

for self-defense. Ex. 3 at ¶¶ 7-15, 26-31. Although Watterson owns a stabilizing brace, 

it was not attached to his pistol on January 31, 2023, and he cannot attach it to his 

pistol, because, if he did, he could be prosecuted for possessing an unregistered shortbarreled rifle under the Rule. Id. at ¶¶ 10, 14, 17-26, 31. In order to attach his 

stabilizing brace and thereby have a pistol equipped with a stabilizing brace for selfdefense, Watterson would need to pay a $200 tax, comply with other requirements, 

wait for approval, and then be burdened by additional restrictions that accompany 

registering a weapon as a short-barreled rifle. Id. at 27; see Ex. 15: ATF FAQs at 

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

‘stabilizing brace’ in your possession at the time the final rule is published”); Ex. 14 

at MSJ_039 (estimating costs of fingerprinting). He would face similar burdens and 

even greater costs if he bought another stabilizing brace or bought a pistol already 

equipped with a stabilizing brace. Ex. 3 at ¶¶ 29-31. 

STANDARD OF REVIEW

Summary judgment is appropriate whenever a summary-judgment motion

“that is properly supported by the evidence” shows “there is no genuine dispute as to 

any material fact and the movant is entitled to judgment as a matter of law.” Young 

Conservatives of Tex. Found. v. Univ. of N. Tex., 597 F. Supp. 3d 1062, 1071 (E.D. Tex. 

2022) (quoting Fed. R. Civ. P. 56(a)). The “‘existence of some alleged factual dispute’ 

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is insufficient to defeat a motion for summary judgment;” instead, the nonmovant 

must “show with ‘significant probative evidence’” that the resolution of a legitimate 

factual dispute “might govern the outcome of the suit.” Id. (quoting Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986), and Hamilton v. Segue Software Inc., 

232 F.3d 473, 477 (5th Cir. 2000)). The court must “view the evidence and the 

inferences to be drawn therefrom in the light most favorable to the non-moving 

party,” but “unsubstantiated assertions, improbable inferences, and unsupported

speculation are not sufficient to defeat a motion for summary judgment.” Nuwer v. 

Mariner Post-Acute Network, 332 F.3d 310, 313-14 (5th Cir. 2003); accord Harrison 

Co., L.L.C. v. A-Z Wholesalers, Inc., 44 F.4th 342, 346 (5th Cir. 2022). 

SUMMARY OF THE ARGUMENT

Because the undisputed facts show that Watterson is entitled to judgment as 

a matter of law, the Court should grant him summary judgment. Regarding

preliminary matters, this Court has Article III jurisdiction and can decide 

Watterson’s claims. The Rule causes an immediate and concrete injury to Watterson, 

which can be redressed by a favorable decision from this Court. Moreover, the Rule 

is a final, legislative rule that the Court can review. 

Regarding the substantive issues in this case, Watterson likewise prevails. 

First, the Rule and the Department’s interpretation of the relevant statutory 

provisions violate the Second Amendment. That amendment safeguards Watterson’s 

right to keep and bear arms, which includes the right to possess a pistol with a 

stabilizing brace for self-defense. The Department failed to carry its burden to prove 

that the registration and related requirements are justified by history or tradition. 

Second, the Rule is an unconstitutional delegation of legislative power. 

Congress cannot delegate its core legislative power to decide what constitutes a crime

that is punishable by 10 years’ imprisonment to unelected officials. This is especially 

true when Congress fails to provide an intelligible principle as it did here. There is 

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7 

no intelligible principle to guide the Department’s discretion in deciding whether to 

expand the definition of short-barreled rifles to include pistols with stabilizing 

braces—and thereby make possession of unregistered pistols a felony. 

Third, even assuming Congress could delegate the power to decide whether to 

redefine statutory provisions and expand criminal liability, it did not do so here. 

Congress failed to speak clearly as required to delegate a decision with such political 

significance. 

ARGUMENT AND AUTHORITIES

I. THE COURT HAS JURISDICTION AND CAN REVIEW THE RULE. 

A. Plaintiff Has Article III Standing. 

As a threshold matter, there is no doubt that Watterson has standing to invoke 

this Court’s jurisdiction. To establish standing, plaintiffs “must show (1) an injury in 

fact, (2) a sufficient causal connection between the injury and the conduct complained 

of, and (3) a likel[ihood] that the injury will be redressed by a favorable decision.” 

Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157-58 (2014) (quotation omitted).

Underlying all these elements is “a basic question”: “whether the plaintiff is himself 

an object of the challenged regulation.” Contender Farms, L.L.P. v. U.S. Dep’t of 

Agric., 779 F.3d 258, 264 (5th Cir. 2015) (quotation omitted). If so, “there is ordinarily 

little question” that the regulation has caused an injury that can be redressed. Id. 

Watterson easily makes the tri-partite Article III showing here. Watterson has 

constitutional injuries, see infra Parts II-III, and a regulatory and monetary injury, 

see supra p. 5. The Department even acknowledges that the Rule affects persons, like 

Watterson, who intend to have a pistol with a stabilizing brace. See Rule, 88 Fed. Reg. 

at 6,573; Ex. 14 at MSJ_037-38. Watterson has suffered an immediate and concrete 

injury that was caused by the Department’s unlawful rule that expands the statutory 

definitions and threatens prosecution. See Ex. 3 at ¶¶ 15-31. That is because the Rule 

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defense without risking a possible 10-year prison sentence or waiting months, paying 

a minimum of $200, and being subject to numerous restrictions. See id. at ¶¶ 27-31; 

Contender Farms, 779 F.3d at 266 (“An increased regulatory burden typically 

satisfies the injury in fact requirement.”); Susan B. Anthony List, 573 U.S. at 158-59

(threatened enforcement and prosecution can be an injury in fact). Finally, a 

favorable decision can redress Watterson’s harm. See Contender Farms, 779 F.3d at 

266 (“[c]ausation and redressability . . . flow naturally from” a regulatory burden).

The requested relief will remedy the constitutional injuries and allow Watterson to 

possess a pistol with a stabilizing brace without risking prosecution or incurring costs 

and facing ongoing regulatory burdens. 

B. The Court Can Decide Plaintiff’s Claims.

There is likewise no doubt that Watterson asserts valid claims that the Court 

can decide. The Rule is a “final agency action” that is reviewable under the 

Administrative Procedure Act, and Watterson is “adversely affected or aggrieved” by 

it. 5 U.S.C. §§ 704, 702. Moreover, Watterson easily satisfies the “[not] especially 

demanding” zone-of-interest tests. Texas v. United States, 809 F.3d 134, 162 (5th Cir. 

2015) (quotations omitted), aff’d 577 U.S. 1101 (2016); see Liquid Carbonic Indus. 

Corp. v. FERC, 29 F.3d 697, 704 (D.C. Cir. 1994) (“Parties regulated by a statute or 

those whom it protects fall within its ‘zone of interest.’”).

As a final rule that went through notice-and-comment rulemaking, the Rule is 

the “consummation” of the decisionmaking process and has clear “legal 

consequences.” See Bennett v. Spear, 520 U.S. 154, 177-78 (1997). And the Rule is a 

substantive, legislative action, because it is “binding” and creates “rights and 

obligations.” See Texas, 809 F.3d at 171. The Rule clearly “supplements a statute, 

adopts a new position inconsistent with existing regulations,” and “otherwise effects 

a substantive change in existing law or policy,” Texas v. United States, 86 F. Supp. 3d 

591, 670 (S.D. Tex. 2015), because it overrules prior classifications, see Rule, 88 Fed. 

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Reg. at 6,480, 6,502, 6,569. Furthermore, the Rule confers benefits by waiving a $200 

tax requirement and giving a subset of persons the right to “lawfully retain possession 

of their Firearm under Federal law,” and it removes enforcement discretion to 

prosecute those who comply with the Rule’s compliance options. Id. at 6,481; see, e.g.,

id. at 6,480 (“will consider individuals to be in compliance”), 6,480 (“Any penalties . . . 

would result only from conduct occurring after this time period to take actions ends.”); 

6,507, 6,549 (“lawfully possess”); 6,570-71 (providing compliance options); Compl. 

¶¶ 79-93; Texas, 809 F.3d at 148, 171-72, 176 (concluding a memorandum that 

granted “lawful presence” was likely a binding, substantive rule); Texas v. United 

States, 50 F.4th 498, 522 (5th Cir. 2022) (explaining an action is substantive if it “has 

binding effect on agency discretion or severely restricts it” (quotation omitted)).

The Department nevertheless characterizes the Rule as interpretive. See Rule, 

88 Fed. Reg. at 6,478, 6,480, 6,508-09, 6,554. But that characterization should be 

viewed with suspicion because the label varies dramatically from what the Rule 

actually does. See Texas, 50 F.4th at 522 (courts are “mindful but suspicious of the 

agency’s own characterization of what it has done,” and look to “the contents of the 

agency’s action, not the agency’s self-serving label, when deciding whether statutory 

notice-and-comment demands apply”). Indeed, the Department’s own actions show

that it does not view the Rule as interpretative, which is why it went through noticeand-comment rulemaking and why the Rule amends the Code of Federal Regulations. 

See Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1109 (D.C. 

Cir. 1993) (“[A]n agency presumably intends a rule to be legislative if it has the rule

published in the Code of Federal Regulations.”). Therefore, the Court can review 

Watterson’s claims under the Administrative Procedure Act.

In any event, the Court can review Watterson’s claims under the Larson 

doctrine and grant a permanent injunction. See Larson v. Domestic & Foreign 

Commerce Corp., 337 U.S. 682, 690 (1949) (“[I]n case of an injury threatened by his 

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illegal action, the officer cannot claim immunity from injunction process.” (quotation 

omitted)); Texas v. Biden, No. 2:21-CV-067-Z, 2021 U.S. Dist. LEXIS 195393, at *16-

17 (N.D. Tex. July 19, 2021) (explaining “the Larson doctrine is a well-established 

line of cases that lets plaintiffs sue, in effect, the United States even without an 

explicit waiver of sovereign immunity”).

II. CRIMINALIZING THE POSSESSION OF UNREGISTERED PISTOLS WITH 

STABILIZING BRACES VIOLATES THE SECOND AMENDMENT.

The Rule—and the National Firearms Act and Gun Control to the extent the 

Rule properly interprets those statutes—violates the Second Amendment. The 

Department has failed to prove that historical tradition permits the Rule’s (or the 

statutes’) infringement on law-abiding individuals’ Second Amendment right to 

possess or make pistols with stabilizing braces for self-defense purposes.

Despite the Department’s claims, the Second Amendment extends to pistols 

with stabilizing braces. The Second Amendment “confer[s] an individual right to keep 

and bear arms,” and it “extends, prima facie, to all instruments that constitute 

bearable arms, even those that were not in existence at the time of the founding.”

District of Columbia v. Heller, 554 U.S. 570, 582, 595 (2008); N.Y. State Rifle & Pistol 

Ass’n v. Bruen, 142 S. Ct. 2111, 2132 (2022). Pistols with stabilizing braces clearly 

qualify as bearable arms, because they are “modern instruments that facilitate armed 

self-defense.” Bruen, 142 S. Ct. at 2132; see Rule, 88 Fed. Reg. at 6,566 (recognizing 

that individuals can use pistols with stabilizing braces for “personal defense”); Ex. 4 

at MSJ_003-4 (explaining how braces work and improve accuracy and control); Ex. 5 

at MSJ_007-8 (similar); see also Ex. 3 at ¶¶ 4, 6-15. Accordingly, “the Constitution 

presumptively protects” the uninfringed possession of pistols with stabilizing braces. 

Bruen, 143 S. Ct. at 2130. That means the Department has the burden of “justifying 

[its] regulation by demonstrating that it is consistent with the Nation’s historical 

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tradition of firearm regulation” otherwise a court cannot conclude that the regulation 

abides by “the Second Amendment’s ‘unqualified command.’” Id. (quotation omitted).

The Department has not and cannot carry that burden here. The Department 

alleges that restrictions on pistols with stabilizing braces can be justified by historical 

prohibitions on dangerous and unusual weapons, Rule, 88 Fed. Reg. at 6,548, but it 

does not “affirmatively prove” it, see Bruen, 142 S. Ct. at 2127. For starters, it failed 

to identify specific statutes from 1791 prohibiting dangerous and unusual weapons, 

and it did not cite evidence that any such statutes were enforced to show such laws 

are appropriate analogues. See id. at 2135-36, 2149 (noting that “not all history is 

created equal” and criticizing the lack of evidence that specific laws were actually 

enforced); Firearms Policy Coal., Inc. v. McCraw, No. 4:21-cv-1245-P, 2022 U.S. Dist. 

LEXIS 152834, at *27-30 (N.D. Tex. Aug. 25, 2022) (concluding evidence that, at most, 

22 states enacted laws between 1856 and 1923 imposing “restrictions on ‘the purchase 

or use of firearms’ for those younger than 21” failed to prove “a prohibition on lawabiding 18-to-20-year-olds carrying a handgun in public for self-defense is consistent 

with this Nation’s historical tradition of firearm regulation”); Yukutake v. Conners, 

554 F. Supp. 3d 1074, 1082 (D. Haw. 2021) (explaining “a handful of similar laws 

from the 1930s” does not show a “‘longstanding’ historical tradition”). 

Furthermore, any limited historical prohibition on the carrying of dangerous 

and unusual weapons does not justify “laws restricting the public carry of weapons 

that are unquestionably in common use today,” much less laws restricting the mere 

possession of such arms. Bruen, 142 S. Ct. at 2143; see Caetano v. Massachusetts, 577 

U.S. 411, 420 (2016) (Alito J., concurring) (explaining that weapons cannot be banned 

if they “are commonly possessed by law-abiding citizens for lawful purposes today”); 

Heller v. District of Columbia, 670 F.3d 1244, 1286-87 (D.C. Cir. 2011) (Kavanaugh, 

J., dissenting) (explaining that the Second Amendment “protects weapons that have 

not traditionally been banned and are in common use by law-abiding citizens”). And 

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pistols with stabilizing braces are in common use today and have not been 

traditionally banned based on the Department’s own evidence. The Department

acknowledges that at least “1.4 million firearm owners” have “pistols with ‘stabilizing 

braces’ attached,” Rule, 88 Fed. Reg. at 6,573, and the true figure could be far greater 

as 3 million to 40 million stabilizing braces have been sold, see id. at 6,560; Ex. 12 at 

MSJ_033. Moreover, over 641,000 short-barreled rifles have been registered, 

demonstrating that short-barreled rifles are likewise in common use by law-abiding 

citizens. Rule, 88 Fed. Reg. at 6,550; See Caetano, 577 U.S. at 420 (Alito J., 

concurring) (concluding that the fact hundreds of thousands of citizens—

approximately 200,000—lawfully owned stun guns showed the weapons were 

commonly possessed for lawful purposes). The Department’s inability to show pistols 

with stabilizing brace are unusual dooms its argument that the Rule’s restrictions 

are consistent with the Second Amendment. See id. at 417 (explaining the “dangerous 

and unusual weapons” test is “conjunctive”: “A weapon may not be banned unless it 

is both dangerous and unusual”).

What is more, the Department did not show that pistols with stabilizing braces 

are unusually dangerous or more likely to be used by criminals than other weapons. 

The Department can point to only two instances where criminals used stabilizing 

braces and 272 investigations involving braces. Rule, 88 Fed. Reg. at 6,499. This is 

insufficient. See Rigby v. Jennings, No. 21-1523 (MN), 2022 U.S. Dist. LEXIS 172375, 

at *16 (D. Del. Sept. 23, 2022) (rejecting argument that untraceable firearms are not 

commonly used by law-abiding citizens for lawful purposes simply because 24,000 

untraceable firearms were recovered at crime scenes). The vast majority of stabilizing 

braces are used for self-defense and other lawful purposes. See Rule, 88 Fed. Reg. at 

6,565-66 (acknowledging that pistols with stabilizing braces can be used for “personal 

defense” and could be helpful in controlling the population of feral hogs, which cause 

millions of dollars in damages annually); see also Ex. 3 at ¶¶ 7-10, 15. 

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History and tradition do not support the Rule’s restrictions on a person’s right 

to possess or make pistols with stabilizing braces. Nor do they support the statutory 

restrictions to the extent the Rule correctly interprets the National Firearms Act and 

the Gun Control Act. That is unsurprising, because Americans have enjoyed the right 

to make, modify, and possess guns for centuries, including the right to attach 

accessories, such as scopes, to their guns. See Joseph G.S. Greenlee, The American 

Tradition of Self-Made Arms, 54 St. Mary’s L.J. 35, 45, 61-65, 71-78 (2023); Jamie G. 

McWilliam, The Unconstitutionality of Unfinished Receiver Bans, 2022 HARV. J.L. &

PUB. POL’Y PER CURIAM 9, 12-13, 15-16 (Spring 2022). National restrictions on most 

gun accessories are of recent vintage and lack a historical pedigree. See Miller v. 

Bonta, 542 F. Supp. 3d 1009, 1024 (S.D. Cal. 2021) (“Prior to the 1990’s, there was no 

national history of banning weapons because they were equipped with furniture like 

pistol grips, collapsible stocks, flash hiders, flare launchers, or barrel shrouds.”), 

vacated, No. 21-55608, 2022 U.S. App. LEXIS 21172, at *2 (9th Cir. 2022) (vacating 

judgment in light of Bruen); Greenlee, The American Tradition of Self-Made Arms, 54 

St. Mary’s L.J. at 78 (“Regulations on self-built arms are not longstanding. In fact, 

there were no restrictions on the manufacture of arms for personal use in America 

during the seventeenth, eighteenth, or nineteenth centuries.”).

Even restrictions on short-barreled rifles did not emerge until the 1930’s, and 

the Department mostly cites cases pre-dating Bruen to argue those restrictions are 

permissible rather than evidence those restrictions are justified by history and 

tradition or by the purported unusual nature of short-barreled rifles Rule, 88 Fed. 

Reg. at 6,482, 6,548. And the Department’s citation to a conclusory sentence (at 6,548, 

6,573) from a 1968 Senate Report that concluded short-barreled rifles, along with 

bazookas, missiles, and other weapons, “are pimarily [sic] weapons of war and have 

no appropriate sporting use or use for personal protection” does not prove regulations 

on short-barreled rifles are consistent with the Second Amendment. S. Rep., No. 90-

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1501, at 28 (Sept. 6, 1968). Moreover, this unsupported conclusion is wrong as it 

relates to short-barreled rifles. Evidence shows that short-barreled rifles “are not and 

never have been a particular criminal problem,” and were “commonly used by 

hunters, trappers, ranchers, and horseback riders” before the National Firearms Act 

was passed. See David B. Kopel, The Second Amendment in the Tenth Circuit: Three 

Decades of (Mostly) Harmless Error, 86 DENV. U.L. REV. 901, 911 & n. 38 (2009)

(explaining short-barreled rifles “were simply added . . . to clarify that longer rifles 

were not covered by some generic language in the draft [National Firearms Act]”). 

Nor does the fact that the Rule (and the statutes) do not impose a complete ban 

on pistols with stabilizing braces or short-barreled rifles show that the restrictions 

are “part of the historical tradition that delimits the outer bounds of the right to keep

and bear arms.” See Bruen, 142 S. Ct. at 2127. The Department cites no historical 

analogue that justifies a registration requirement, much less one that requires lawabiding citizens to wait months to a year to possess a particular type of weapon. See

id. at 2138 n.9 (indicating that “lengthy wait times in processing license applications 

or exorbitant fees” may impermissibly infringe on the right of law-abiding citizens to 

public carry); Heller, 670 F.3d at 1270, 1292 (Kavanaugh, J, dissenting) (concluding 

that a registration requirement for gun owners was not supported by history and 

tradition); Murphy v. Guerrero, No. 1:14-CV-00026, 2016 U.S. Dist. LEXIS 135684, 

at *34-37 (D. N. Mar. I. Sept. 28, 2016) (concluding that a registration requirement 

with a 15-day waiting period “fails constitutional muster”).

The Department likewise points to no historical basis for imposing a tax—that 

is nearly twice the cost of a stabilizing brace, Ex. 3 at ¶ 10—to attach the brace to a 

lawfully owned pistol. See Murphy, 2016 U.S. Dist. LEXIS 135684, at *79-83 

(concluding a $1,000 tax on handguns is an impermissible burden on “the right to 

keep and bear a handgun for self-defense”). That is likely because Congress did not 

tax firearms until 1919, id. at *80, and a tax that is designed to discourage the 

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exercise of fundamental rights is unconstitutional, see Ex. 13 at MSJ_34 (stating that 

the “underlying purpose” of the tax under the National Firearms Act was “unrelated 

to revenue collection” and designed to “curtail, if not prohibit, transactions in [certain] 

firearms”); cf. Grosjean v. Am. Press Co., 297 U.S. 233, 250 (1936) (concluding that a 

“deliberate and calculated device in the guise of a tax” to infringe on a fundamental 

freedom is impermissible); Minneapolis Star & Tribune Co. v. Minn. Comm’r of 

Revenue, 460 U.S. 575, 592-93 (1983) (explaining that differential taxation of the 

press “suggests that the goal of the regulation is not unrelated to suppression of 

expression, and such a goal is presumptively unconstitutional”). And the Department

points to no historical analogue to support the ongoing restrictions on transfer and 

transportation that the Rule would impose on pistols with braces that are registered. 

Therefore, the Court should conclude that the Rule—and the federal statutes 

to the extent the Rule correctly interprets them—violates the Second Amendment. 

III. THE RULE VIOLATES ARTICLE I AND CONSTITUTIONAL SEPARATION-OFPOWERS PRINCIPLES.

The Court should also conclude that the Rule violates the Constitution’s 

structural provisions. The Department lacks the constitutional authority to decide 

that possession of an unregistered pistol with a stabilizing brace is a crime, and 

Congress cannot delegate that power to it. See United States v. Davis, 139 S. Ct. 2319, 

2325 (2019) (“Only the people’s elected representatives in the legislature are 

authorized to make an act a crime.” (quotation omitted)). The legislative power must 

be exercised by Congress and in accordance with the Constitution’s bicameralism and 

presentment requirements. See, e.g., A. L. A. Schechter Poultry Corp. v. United States, 

295 U.S. 495, 529 (1935); cf., e.g., Clinton v. City of New York, 524 U.S. 417, 448-49 

(1998); Consumer Fin. Prot. Bureau v. All Am. Check Cashing, Inc., 33 F.4th 218, 232-

34 (5th Cir. 2022) (Jones, J., concurring).

Although certain opinions have wrongly approved delegations of some 

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legislative power, a few limits on transferring legislative power remain. A decision 

about whether to criminalize the possession of commonly used pistols, which carries 

a possible 10-year prison sentence, is a paradigmatic example of a core legislative 

power that cannot be delegated. In any event, even if Congress could constitutionally 

delegate the power to create new crimes and make millions of citizens felons, it must 

provide an intelligible principle to do so. Congress failed to provide an intelligible 

principle to govern the Department’s discretion in deciding whether to criminalize 

pistols with stabilizing braces. Therefore, the Rule is unconstitutional based on a 

faithful interpretation of the Constitution and current precedent.

A. The Rule Is Unconstitutional Because Congress Cannot Delegate 

Legislative Power.

The Rule is an unconstitutional delegation of legislative power under the

original understanding of the Constitution. Although precedent has strayed from the 

original meaning—and adherence to original meaning is not required for Watterson 

to prevail—a discussion of original meaning is necessary for three reasons. First, we 

want to preserve the argument that non-originalist cases approving the delegation of 

legislative power are wrongly decided. See Ben. Recovery, Inc. v. Donelon, 521 F.3d 

326, 329 (5th Cir. 2008). Second, it is useful to anchor our discussion on the 

constitutional principles on which current precedent sits. See Netchoice, L.L.C. v. 

Paxton, 49 F.4th 439, 452-53 (5th Cir. 2022) (“As always, we start with the original 

public meaning of the Constitution’s text.”). Third, this Court is not required to 

extend “precedent in direct conflict with the Constitution,” and instead should, to the 

extent possible based on binding precedent, “decide every case faithful to the text and 

original understanding of the Constitution.” See Texas v. Rettig, 993 F.3d 408, 409, 

417 (5th Cir. 2021) (Ho, J., dissenting from denial of rehearing en banc).

As an original matter, the Rule is an unlawful attempt to circumvent 

constitutional constraints on lawmaking. At the time of ratification, the vesting of 

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legislative power in Congress would have been understood as implicitly prohibiting

Congress from divesting itself of that authority and delegating it to others. See, e.g.,

Gundy v. United States, 139 S. Ct. 2116, 2133-35 (2019) (Gorsuch, J., dissenting); Ilan 

Wurman, Nondelegation at the Founding, 130 YALE L. J. 1490, 1504, 1523-26 (2021).

The Founders recognized that “[t]he accumulation of all powers, legislative, 

executive, and judiciary, in the same hands . . . may justly be pronounced the very 

definition of tyranny.” The Federalist No. 47 (James Madison). They were influenced 

by John Locke and William Blackstone who knew that “freedom required that the 

power to make the standing rules and the power to enforce them not lie in the same 

hands” and that vesting the “right both of making and of enforcing the laws” in one 

entity was the definition of “a tyrannical government.” DOT v. Ass’n of Am. R.R., 575 

U.S. 43, 72-74 (2015) (Thomas, J., concurring). The Founders thus divided the powers 

between three separate branches to preserve liberty, giving “[a]ll legislative Powers” 

to Congress. U.S. Const. art. I, § 1 (emphasis added); see Collins v. Yellen, 141 S. Ct. 

1761, 1780 (2021) (“[T]he separation of powers is designed to preserve the liberty of 

all the people.”). Accordingly, Congress cannot “abdicate or . . . transfer to others the 

essential legislative functions with which it is thus vested” without violating Article 

I, § 1 of the Constitution and separation-of-powers principles. Schechter Poultry, 295 

U.S. at 529; see Gundy, 139 S. Ct. at 2123 (plurality op.) (“Accompanying that 

assignment of power to Congress is a bar on its further delegation.”); cf. Freytag v. 

Commissioner, 501 U.S. 868, 880 (1991) (government branches cannot waive a 

structural protection in the Constitution).

After all, if Congress could delegate the “greatest” power—the legislative 

power—it would subvert the “strict rules” the Constitution imposes to govern the 

legislative process and to curb the potential for governmental abuses. Jarkesy v. SEC, 

34 F.4th 446, 459 (5th Cir. 2022); see Ass’n of Am. R.R., 575 U.S. at 61 (Alito, J., 

concurring) (“Our Constitution, by careful design, prescribes a process for making 

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law, and within that process there are many accountability checkpoints.”); Gundy, 

139 S. Ct. at 2134 (Gorsuch, J., dissenting) (noting the Framers viewed “Article I’s 

detailed and arduous processes for new legislation” as the “bulwarks of liberty”).

Congress thus cannot subvert these safeguards and “dash the whole [constitutional] 

scheme” by “giv[ing] its power away to an entity that is not [similarly] 

constrained.”Ass’n of Am. R.R., 575 U.S. at 61 (Alito, J., concurring); id. at 68 

(Thomas, J., concurring) (similar); Mistretta v. United States, 488 U.S. 361, 371-72 

(1989) (“[T]he integrity and maintenance of the system of government ordained by 

the Constitution mandate that Congress generally cannot delegate its legislative 

power to another Branch.” (quotation omitted)). And whenever it does so and “a 

separation-of-powers violation occurs, any aggrieved party with standing may file a 

constitutional challenge.” Collins, 141 S. Ct. at 1780.

To be sure, “the Supreme Court’s more recent formulations” allow Congress to 

delegate some legislative power as long as it “provides an ‘intelligible principle’ by 

which the recipient of the power can exercise it.” Jarkesy, 34 F.4th at 460-61. Under 

this approach, the Supreme Court has allowed Congress to delegate some policy 

judgments and has rarely “second-guess[ed] Congress regarding the permissible 

degree of policy judgment that can be left to those executing or applying the law.”

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 474-75 (2001) (quotation omitted). 

This precedent is wrong and should be revisited. See Ass’n of Am. R.R., 575 U.S. at

77 (Thomas, J., concurring) (concluding that the “intelligible principle” test “does not 

adequately reinforce the Constitution’s allocation of legislative power”).

Under a proper understanding of the Constitution, no “degree of policy 

judgment is permissible when it comes to establishing generally applicable rules 

governing private conduct.” Id. at 86. Instead, “[t]he Government may create 

generally applicable rules of private conduct only through the proper exercise of 

legislative power.” Id. The Rule is therefore unlawful: It regulates private conduct 

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but was improperly issued by the Department rather than passed by Congress in 

accordance with constitutional requirements. 

B. Because Deciding What Is a Felony Is a Core Legislative Power, 

Congress Cannot Delegate the Decision to Criminalize Possession 

of Unregistered Pistols with Stabilizing Braces.

Even acknowledging that Congress can delegate some legislative power under 

current precedent, the Rule is still unconstitutional. That is because the Department

exercised core legislative power by making a major policy decision about what conduct 

should be a felony punishable by imprisonment. Such a decision is a paradigmatic 

example of core legislative power that must be exercised by elected representatives.

Congress “may not transfer to another branch ‘powers which are strictly and 

exclusively legislative.’” Gundy, 139 S. Ct. at 2123 (plurality op.) (emphases added) 

(quoting Wayman v. Southard, 23 U.S. 1, 10 (1825)); see Panama Ref. Co. v. Ryan, 

293 U.S. 388, 421 (1935) (“Congress manifestly is not permitted to abdicate, or to 

transfer to others, the essential legislative functions with which it is thus vested.” 

(emphasis added)). Core, essential legislative powers—such as significant policy 

decisions—thus cannot be delegated. See Panama Ref., 293 U.S. at 421 (explaining 

that Congress must itself “lay[] down policies and establish[] standards”); Indus. 

Union Dep’t, AFL-CIO v. API, 448 U.S. 607, 687 (1980) (Rehnquist, J., concurring) 

(explaining that “the critical policy decisions” and “hard choices” are “the very essence 

of legislative authority under our system” and “must be made by the elected 

representatives of the people”); Paul v. United States, 140 S. Ct. 342, 342 (2019)

(Kavanaugh, J., statement regarding denial of certiorari) (indicating “congressional 

delegations . . . to decide major policy questions” may be impermissible).

Accordingly, “[t]he Court has unanimously invalidated legislation in which 

Congress delegated to others the essential legislative functions with which it is . . . 

vested, and it has read other statutes narrowly to avoid annulling them as excessive 

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abdications of constitutional responsibility.” Weiss v. United States, 510 U.S. 163, 189 

n.5 (1994) (emphasis added) (quotations omitted). In contrast, many of the 

delegations that the Court has approved did not “involve an exercise of the core 

legislative power.” Ass’n of Am. R.R., 575 U.S. at 80-82 (Thomas, J., concurring).

If anything falls into the category of a major policy decision that is exclusively 

legislative and cannot be delegated, it is a policy decision about what constitutes a 

crime and can be punished with 10 years’ imprisonment. Agencies cannot “abridge or 

enlarge . . . statute[s] at will,” because “[s]uch power is not regulation; it is 

legislation.” United States v. George, 228 U.S. 14, 22 (1913) (quotation omitted); see 

Cargill v. Garland, No. 20-51016, 2023 U.S. App. LEXIS 344, at *50 (Jan. 6, 2023)

(en banc) (suggesting it is problematic “[i]f ATF could change the scope of criminal 

liability by issuing a regulation,” because then “the Executive could wield power that 

our Constitution reserves to the Legislature”); cf. United States v. Standard Brewery, 

Inc., 251 U.S. 210, 220 (1920) (“Administrative rulings cannot add to the terms of an 

act of Congress and make conduct criminal which such laws leave untouched.”).

Indeed, it is “a bedrock legal principle that our government cannot criminalize 

conduct and send people to prison except through democratically passed laws that 

have made it through both Houses of Congress and been signed by the President.”

Gun Owners of Am., Inc. v. Garland, 19 F.4th 890, 910 (6th Cir. 2021) (en banc)

(Murphy, J., dissenting); see Cargill, 2023 U.S. App. LEXIS 344, at *5-6 (allowing 

ATF “rather than Congress . . . to set forth the scope of criminal prohibitions” would 

violate the principle that “[i]t is the legislature . . . which is to define a crime, and 

ordain its punishment” (quotation omitted)); Aposhian v. Wilkinson, 989 F.3d 890, 

900 (10th Cir. 2021) (en banc) (Tymkovich, C.J., dissenting) (“ATF has no authority 

to substitute its moral judgment concerning what conduct is worthy of punishment 

for that of Congress.”). Defining federal crimes is a job for Congress, and it is meant 

to be a difficult one; not one that can be pawned off on courts, agencies, or prosecutors. 

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See United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32, 34 (1812) (“The 

legislative authority of the Union must first make an act a crime, affix a punishment 

to it, and declare the Court that shall have jurisdiction of the offence.”); Davis, 139 S. 

Ct. at 2323 (“Only the people’s elected representatives in Congress have the power to 

write new federal criminal laws.”); Staples v. United States, 511 U.S. 600, 604-05 

(1994) (“[T]the definition of the elements of a criminal offense is entrusted to the 

legislature, particularly in the case of federal crimes, which are solely creatures of 

statute.” (quotation omitted)); Sessions v. Dimaya, 138 S. Ct. 1204, 1228 (2018)

(Gorsuch, J., concurring) (“Under the Constitution, the adoption of new laws 

restricting liberty is supposed to be a hard business, the product of an open and public 

debate among a large and diverse number of elected representatives.”). Therefore, 

Congress cannot delegate the power to expand statutory definitions to subject 

millions to criminal liability.

To be sure, the Supreme Court has not established an “absolute rule” that 

Congress cannot delegate “authority to define criminal punishments.” Loving v. 

United States, 517 U.S. 748, 768 (1996); see United States v. Grimaud, 220 U.S. 506, 

521 (1911) (opining that regulations are not “raised from an administrative to a 

legislative character because the violation thereof is punished as a public offense”).

And the Supreme Court has sometimes blessed delegations that allow agencies to 

make actions a crime. See Gun Owners, 19 F.4th at 916 (Murphy, J., dissenting) 

(collecting cases). But these cases are distinguishable. For example, Loving involved 

a unique military context and did not involve an agency’s power to decide what

constitutes a crime. See 517 U.S. at 751; id. at 778-79 (Thomas, J., concurring in 

judgment). Moreover, Grimaud involved what appears to be a public welfare offense

with less severe penalties—impermissibly grazing sheep on federal land without 

permission, see 220 U.S. at 521-22—not a serious criminal offense that requires mens 

rea and can result in 10 years’ imprisonment, see Staples, 511 U.S. at 616.

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That was admittedly not the case in other cases where imprisonment was a 

possible penalty. For example, Touby v. United States, 500 U.S. 160, 169 (1991),

approved the Attorney General’s ability to add a substance to the Controlled 

Substances Act despite the severe penalties involved. But in concluding that statute 

was constitutional, the Court stressed that the Act “assigned an essentially factfinding responsibility to the executive.” Gundy, 139 S. Ct. at 2141 (Gorsuch, J., 

dissenting). Similarly, the statute at issue in Gundy did not delegate authority to 

decide the policy issue of whether a sex-offender registration requirement should 

apply to pre-act offenders, but rather delegated authority to determine when it was 

feasible to apply the requirement to pre-act offenders. Id. at 2123-25 (plurality op.). 

Accordingly, in both cases, core legislative power was not delegated in the same 

way that it is delegated here. These cases thus do not preclude the Court from 

concluding that the Rule, which would make over a million citizens guilty of a felony, 

is an unconstitutional exercise of core legislative power by the Department. 

C. Even if Deciding What Conduct to Criminalize Could Be Delegated, 

Congress Failed to Provide an Intelligible Principle to Constrain 

the Department’s Discretion.

In any event, even if the power to create new felonies was not a core legislative 

power and could be delegated, Congress would still need to provide an intelligible 

principle. It failed to do so here. 

Under the intelligible-principle framework, if (1) Congress delegated a power 

“that would be legislative . . . but-for an intelligible principle to guide its use,” the 

delegation is constitutional only if (2) Congress “provided an intelligible principle 

such that the agency exercises only executive power.” Jarkesy, 34 F.4th at 461.

Regarding the first prong, the Rule is an exercise of “what would be legislative power 

absent a guiding intelligible principle.” Id. It is a substantive rule that affects 

individual rights and is intended to have the force of law. See id. (“Government 

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actions are ‘legislative’ if they have ‘the purpose and effect of altering the legal rights, 

duties and relations of persons . . . outside the legislative branch.’” (quoting INS v. 

Chadha, 462 U.S. 919, 952 (1983))); supra Part I.B. 

Regarding the second prong, Congress failed to provide an intelligible principle 

to guide the Department’s exercise of the legislative power. In other statutory 

delegations, Congress cabined the discretion of agencies or commissions, such as by 

setting forth specific factors that must be considered or mandating specific fact 

findings. See Touby, 500 U.S. at 162-63 (discussing the factors and findings required 

by the Controlled Substances Act); Gundy, 139 S. Ct. at 2141 (Gorsuch, J., dissenting)

(describing the Controlled Substances Act as delegating “an essentially fact-finding 

responsibility”); Mistretta, 488 U.S. at 376-77 (discussing the factors the Sentencing 

Commission was required to consider and prohibited from considering). As such, 

Congress arguably delegated executive fact-finding, not policy decisions in those 

statutes. But here Congress tasked the Department with “[t]he administration and 

enforcement” of the National Firearms Act, 26 U.S.C. § 7801(a)(2)(A), and instructed 

the Department to prescribe “such rules and regulations as are necessary to carry 

out” the Gun Control Act, 18 U.S.C. § 926(a). There is a “total absence of guidance” 

that would restrict the Department’s ability to rewrite the federal statutes by 

expanding statutory definitions and criminal liability as the Department sees fit, 

which is “impermissible under the Constitution. Jarkesy, 34 F.4th at 463. 

Moreover, the Supreme Court requires more specificity and less ambiguity for

criminal statutes. See Davis, 139 S. Ct. at 2325 (explaining that “[v]ague laws . . .

undermine the Constitution’s separation of powers”); Dimaya, 138 S. Ct. at 1212

(plurality op.) (discussing how the void-for-vagueness doctrine requires Congress to 

“define what conduct is sanctionable” and to provide clear “standards to govern the

actions of police officers, prosecutors, juries, and judges”); id. at 1223-27 (Gorsuch, J.,

concurring) (discussing the danger of vague laws and the historical requirement of

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fair notice). It therefore follows that a delegation that involves criminal consequences 

must provide clear guidance even if lesser intelligible-principle standards are

acceptable in other contexts. This further demonstrates that there is no true 

intelligible principle in the statutes that would allow the Department to create new 

unregistered possession crimes without violating the Constitution.

IV. THE DEPARTMENT LACKS THE STATUTORY AUTHORITY TO DECIDE WHAT 

CONDUCT TO CRIMINALIZE.

Even if Congress could delegate the decision of whether to expand criminal 

liability under the federal statutes, it did not do so. Accordingly, the Rule exceeds the 

Department’s statutory authority.

A. There Is No Clear Congressional Authorization to Allow the 

Department to Make Consequential Decisions Infringing on 

Individual Liberties.

Congress did not speak clearly—as required—to give the Department the 

authority to adopt the Rule. The Rule is a major policy decision of great political 

significance because it infringes on individual liberties: it turns millions of Americans 

into criminals guilty of felonies and imposes a plethora of restrictions on the right to 

make and possess pistols with stabilizing braces. See, e.g., Rule, 88 Fed. Reg. at 6,480-

81, 6,563, 6,573. Moreover, the Rule intrudes on the police power of the states, see 

United States v. Lopez, 514 U.S. 549, 561 n.3 (1995), and fundamentally changes the 

statutory scheme by expanding criminal liability and crafting an “enforcement 

discretion” scheme with compliance options and tax waivers, see supra pp. 4-5, 8-9. 

Because the Rule makes decisions of “such magnitude and consequence,” those 

decisions rest with Congress or, at the very least, with “an agency acting pursuant to 

a clear delegation from that representative body.” West Virginia v. EPA, 142 S. Ct. 

2587, 2616 (2022); see id. at 2609 (recognizing that Congress is unlikely to delegate 

the power “to make a radical or fundamental change to a statutory scheme” with 

“oblique or elliptical” language (quotation omitted)); id. at 2621 (Gorsuch, J., 

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concurring) (noting that “the major questions doctrine may apply when an agency 

seeks to intrud[e] into an area that is the particular domain of state law” (quotation 

omitted)). Accordingly, the Department “must point to clear congressional 

authorization for the power it claims.” Id. at 2609 (quotation omitted). 

The Department fails to do so. Instead, it points to general “administration and 

enforcement” authority in the National Firearms Act and authority in the Gun 

Control Act to make “only such regulations as are necessary.” 26 U.S.C. 

§ 7801(a)(2)(A); 18 U.S.C. § 926(a); see Rule, 88 Fed. Reg. at 6,481. That is insufficient 

under the major questions doctrine. See Gun Owners of Am., 19 F.4th at 919 (Murphy, 

J., dissenting) (concluding the “grants of rulemaking power do not ‘distinctly’ show 

Congress’s intent to allow the Attorney General to create a new crime (as the BumpStock Rule purports to do)” and “do not satisfy the clear-statement rule”).

B. The Department Lacks the Statutory Authority to Rewrite the 

National Firearms Act and Gun Control Act. 

Even apart from the major questions doctrine, the Rule exceeds the 

Department’s statutory authority. The Department’s rulemaking authority is quite 

limited in this context and does not extend to expanding statutory definitions and 

criminal liability. The Department, however, contends that the Rule interprets rather 

than revises the statute. See Rule, 88 Fed. Reg. at 6,478, 6,480, 6,508-09, 6,552-52, 

6,554. Accordingly, we first address how the Department rewrites the statutes before 

addressing its lack of authority to do so.

As a threshold matter, the Rule redefines “rifle” (and thus short-barreled rifle)

in the National Firearms Act and Gun Control Act to create new crimes. Congress 

defined rifle based on whether the weapon was “designed or redesigned, made or 

remade, and intended to be fired from the shoulder.” 26 U.S.C. § 5845(c) (emphasis 

added); 18 U.S.C. § 921. This stands in contrast to other provisions that define a 

weapon based on its design or capabilities, see 26 U.S.C. § 5845(b) (defining 

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machinegun as “any weapon which shoots, is designed to shoot, or can be readily 

restored to shoot, automatically more than one shot”); see also Vanderstok v. Garland, 

No. 4:22-cv-00691-O, 2022 U.S. Dist. LEXIS 159459, at *14 (N.D. Tex. Sept. 2, 2022). 

Pistols equipped with stabilizing braces generally do not qualify as rifles because they 

are designed, made, and intended to be used to stabilize the pistol against a shooters’ 

forearm. See Proposed Rule, 86 Fed. Reg. at 30,827; Ex 4; Ex. 5; Ex. 6. Indeed, the

braces would have been designed differently if they were intended to be used as 

shoulder stocks. See Ex. 4; Ex. 5; Ex. 7 at MSJ_013 (noting a brace would have raised 

ridges removed “so as to preclude its usefulness to be shouldered”); Ex. 3 at ¶ 19.

Nevertheless, the Department decided that pistols equipped with stabilizing 

braces should be further regulated based on their potential to be shoulder fired so it

rewrote the statutory language. The Rule revises the statutory definitions of rifle to 

include weapons “equipped with . . . a ‘stabilizing brace’” that (1) have any surface 

area that could be used for shoulder firing, and (2) fail a prong of a multi-factor test

Rule, 88 Fed. Reg. at 6,574-75; see also Compl. at ¶¶ 63-78. The Department pretends

that each factor goes towards “determining whether the weapon is designed, made, 

and intended to be fired from the shoulder.” Rule, 88 Fed. Reg. at 6,574-75. This is 

false. The Rule’s factors go towards whether a gun could be fired from the shoulder, 

not whether it was designed, made, and intended to be fired in that fashion. See id.;

Compl. at ¶¶ 65-78 (explaining how the factors do not show that that the pistols are 

intended be fired from the shoulder rather than braced to the shooter’s forearm).

For example, a pistol’s heavy weight shows that a stabilizing brace would be 

helpful if used as intended—to stabilize the gun against the shooter’s forearm, see Ex. 

3 at ¶¶ 9-10, 20; Ex. 4; Ex. 5—but the Rule treats a pistol’s weight as indicating that 

“shoulder firing the weapon” would be “beneficial,” Rule, 88 Fed. Reg. at 6,514. The 

Rule similarly assumes that accessories that serve a useful purpose, such as a folding 

adapter that makes a pistol easier to store securely in a gun safe, Ex. 3 at ¶¶ 13, 23,

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transform a pistol into rifle if they might be helpful if a person shoulder fired the 

pistol, see Rule, 88 Fed. Reg. at 6,540-41. Likewise, the fact that certain gun bloggers

or small stabilizing-brace sellers promote the idea that a stabilizing brace could be 

used to shoulder fire a pistol does not show that shoulder fire is the designed and 

intended way of shooting a pistol with a stabilizing brace. Id. at 6,506, 6,544, 6,546.

Elsewhere the Department even concedes that a weapon’s “classification does not 

change even if [it] can be used in more than one manner by a particular shooter.” Id. 

at 6,531. The contrary conclusion would be like defining a corkscrew to include 

hangers, keys, or shoes, because videos and articles demonstrate those items can be 

used to open a bottle of wine.3

The Rule thus constitutes a statutory revision, rather than an interpretation, 

and redefines a rifle based on how a weapon could be used or misused by individuals.

Moreover, the Rule’s compliance options and exemptions from statutory 

requirements go far beyond interpreting the statutes. See supra pp. 4-5, 8-9; see also

Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 328 (2014) (“Agencies are not free to 

adopt . . . unreasonable interpretations of statutory provisions and then edit other 

statutory provisions to mitigate the unreasonableness.” (quotation omitted)).4

3 See Silver Oak, How to Open a Wine Bottle Without a Corkscrew, YouTube (Aug. 7, 

2018), https://www.youtube.com/watch?v=_4C3WZYuU0A; Emily Saladino, How to 

Open a Wine Bottle Without a Corkscrew, WINE ENTHUSIAST (Aug. 8, 2022), 

https://www.winemag.com/2022/08/08/how-to-open-a-wine-bottle-without-a-cork

screw/; Nick Gerhardt, 10 Ways to Open a Bottle Without a Corkscrew, Family 

Handyman (Feb. 24, 2022), https://www.familyhandyman.com /list/10-ways-to-openwine-without-a-corkscrew/.

4 Even assuming arguendo there is potential ambiguity in the statutory definitions, 

Defendants could still not replace the statutory definitions with the Rule’s definitions. 

Defendants receive no deference in the interpretation of criminal statutes, United 

States v. Apel, 571 U.S. 359, 369 (2014), Cargill, 2023 U.S. App. LEXIS 344, at *40-

44, and the Rule’s definitions would be untenable under the rule of lenity, see United 

States v. Granderson, 511 U.S. 39, 54 (1994) (“[W]here text, structure, and history 

fail to establish that the Government’s position is unambiguously correct[,] we apply 

the rule of lenity and resolve the ambiguity in” favor of the individual.).

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The Department’s implausible attempts to characterize the Rule as a mere 

interpretation are understandable, because it lacks the statutory authority to 

redefine “rifle” and create new crimes (and compliance options) as a result of the 

expanded definitions. See United States v. Kuzma, 967 F.3d 959, 971 (9th Cir. 2020)

(noting the National Firearms Act does not delegate the “authority to promulgate

underlying regulatory prohibitions, which are then enforced by a criminal statute 

prohibiting willful violations of those regulations”); Stephen P. Halbrook, FIREARMS 

LAW DESKBOOK, § 7:7 (Oct. 2022 Update) (“Congress . . . delegated no authority to 

redefine or expand [the National Firearms Act’s] terms and acts by regulation so as 

to create new crimes.”); see also 114 Cong. Rec. at 14,792-93 (May 23, 1968) (rejecting 

statutory language in the Gun Control Act that would have authorized criminal 

penalties for violations of rules promulgated by the Department). Nor does the 

Department have the authority to regulate stabilizing braces which, unlike other gun 

parts, are not swept within the statutory definition of firearm. See 26 U.S.C. 

§ 5845(a)(7) (defining “firearm” to include “any silencer”); 18 U.S.C. § 921(a)(3)(B)-(C)

(defining “firearm” to include “frame or receiver” and “any firearm muffler or firearm 

silencer”); see also Vanderstok, 2022 U.S. Dist. LEXIS 159459, at *19-20 (“ATF has 

no general authority to regulate weapon parts.”).

Indeed, the National Firearms Act does not even expressly give the 

Department general rulemaking authority, 26 U.S.C. § 7801(a)(2)(A), and the Gun 

Control Act constrains the Department’s rulemaking authority to prescribing “only 

such regulations as are necessary to carry out” the Act, 18 U.S.C. § 926(a); see Compl. 

at ¶¶ 32-35. Both statutes define the statutory terms as used in the relevant chapters 

of the U.S. Code, and do not authorize the Department to pass regulations to redefine 

or expand the definition of “rifle.” See 18 U.S.C. § 921(a) (defining terms “[a]s used in 

this chapter”); 26 U.S.C. § 5845 (defining terms “[f]or the purpose of this chapter”).

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In contrast, the National Firearms Act specifically gives the Department the 

ability to omit weapons from the definition of “firearm” if it makes specific findings 

that such weapons are antique firearms that are unlikely to be used as a weapon. See 

26 U.S.C. § 5845(a). This further demonstrates that Congress did not delegate 

authority to the Department to expand the scope of the definition of “rifle.” See 

Gonzales v. Oregon, 546 U.S. 243, 262-63 (2006) (concluding that the express 

authority to deregister a drug (after the consideration of specific statutory factors)

suggested that Congress did not implicitly give the much greater power of declaring

an entire class of activity a criminal violation); Gun Owners, 19 F.4th at 919 (Murphy, 

J., dissenting) (“[W]e should view the express inclusions and omissions of regulatory 

authority as intentional legislative choices.”).5 Accordingly, the Rule exceeds the 

Department’s statutory authority and is unlawful. See Bowen v. Georgetown Univ. 

Hosp., 488 U.S. 204, 208, 216 (1988). At the very least, Congress did not speak clearly 

to give the Department the authority to promulgate the Rule and turn millions of 

Americans into criminals guilty of felonies. See supra Part IV.A. 

V. THE COURT SHOULD GRANT THE RELIEF REQUESTED IN THE COMPLAINT.

Because Watterson is entitled to summary judgment, the Court should grant 

the relief requested. See Compl. ¶ 139. First, the Court should issue declaratory relief 

that settles the legal rights at issue in this case under the Declaratory Judgments 

Act. See 28 U.S.C. § 2201. The Court has “a ‘virtually unflagging obligation . . . to 

exercise that authority’ to resolve a case before it,” and “[d]eclaring the scope of 

constitutional power” and rights “is thus proper relief.” Terkel v. CDC, 521 F. Supp. 

5 Similarly, Congress’s express delegation of additional authority to promulgate 

regulations to administer different provisions of the federal statutes indicates that 

Congress did not sub silentio delegate that additional authority in regards to the 

definition of “rifle.” See 26 U.S.C. § 5842(a)-(c) (requiring firearms to be identified 

with such information or in “such manner as the Secretary may by regulations 

prescribe”); 18 U.S.C. § 922(m) (making it unlawful for licensees to violate 

recordkeeping requirements in the statute “or regulations promulgated thereunder”).

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3d 662, 676-77 (E.D. Tex. 2021) (quoting Mata v. Lynch, 576 U.S. 143, 150 (2015)).

Second, the Court must vacate the Rule as unlawful under the Administrative 

Procedure Act, because the Rule violates constitutional rights and exceeds the 

Department’s statutory authority. See 5 U.S.C. § 706(2)(B)-(C). Not only is vacatur 

the “default rule” for an unlawful regulation, Data Mktg. P’ship, LP v. DOL, 45 F.4th 

846, 859 (5th Cir. 2022), but it also required by the Act’s plain text, see Kingdomware 

Techs., Inc. v. United States, 579 U.S. 162, 172 (2016) (“When a statute distinguishes 

between ‘may’ and ‘shall’ it is generally clear that ‘shall’ imposes a mandatory duty.”); 

compare 5 U.S.C. § 706(2) (“The reviewing court shall . . . hold unlawful and set aside 

agency action . . . . (emphasis added)), with id. § 705 (“may”). 

Third, the Court should enter a permanent injunction that enjoins the 

Department from, among other actions, enforcing the National Firearm Act and Gun 

Control Act in accordance with the Rule. Injunctive relief is necessary to safeguard 

Second Amendment rights and enforce constitutional separation-of-powers 

provisions, because the Department has a history of changing its statutory 

interpretations and chilling Second Amendment rights. The Department is thus

unlikely to “meet constitutional requirements” and rectify its erroneous statutory 

interpretation. See Morrow v. Harwell, 768 F.2d 619, 627 (5th Cir. 1985) (when 

officials are ready “to meet constitutional requirements, the court should limit its 

initial response to a grant of declaratory relief”). And this Court need not believe the 

Department will abide by a declaratory judgment and respect constitutional limits on 

its power. Cf. DOC v. New York, 139 S. Ct. 2551, 2575 (2019) (noting courts need not

“exhibit a naiveté from which ordinary citizens are free” (quotation omitted)).

CONCLUSION

Because Watterson has shown he is entitled to summary judgment on his 

claims and entitled to the requested relief, the Court should grant Watterson

summary judgment on each claim and provide the relief requested in the Complaint.

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Date: January 31, 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 Blake J. 

Watterson

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CERTIFICATE OF SERVICE

I certify that I caused the foregoing document to be served via certified mail on 

January 31, 2023, to:

Bureau of Alcohol, Tobacco, Firearms and Explosives

99 New York Avenue NE

Washington, DC 20226

Director Steven Dettelbach

Bureau of Alcohol, Tobacco, Firearms and Explosives

99 New York Avenue NE

Washington, DC 20226

United States Department of Justice

950 Pennsylvania Avenue, NW

Washington, DC 20530-0001

Attorney General Merrick Garland

United States Department of Justice

950 Pennsylvania Avenue, NW

Washington, DC 20530-0001

Civil Process Clerk

U.S. Attorney’s Office for the Eastern District of Texas

110 North College, Suite 700

Tyler, Texas 75702

 /s/Autumn Hamit Patterson 

AUTUMN HAMIT PATTERSON

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