Petition For Writ of Mandamus Complete

WILLIAM J. OLSON, P.C.
ATTORNEYS AT LAW
WILLIAM J. OLSON 370 MAPLE AVENUE WEST, SUITE 4
(VA, D.C.)
HERBERT W. TITUS VIENNA, VIRGINIA 22180-5615

(VA OF COUNSEL)
TELEPHONE (703) 356-5070 114 CREEKSIDE LANE
JEREMIAH L. MORGAN
(D.C., CA ONLY) FAX (703) 356-5085 WINCHESTER, VA 22602-2429
TELEPHONE (540) 450-8777
ROBERT J. OLSON E-MAIL: wjo@mindspring.com FAX (540) 450-8771
(VA, D.C.)
http://www.lawandfreedom.com
March 19, 2019
Office of the Clerk

United States Court of Appeals for the Sixth Circuit
540 Potter Stewart U.S. Courthouse
100 E. Fifth Street
Cincinnati, Ohio 45202-3988
Re: Gun Owners of America, Inc., et al. v. Barr, et al.

U.S. District Court for the Western District of Michigan
Case No. 1:18-cv-01429-PLM-RSK
Dear Madam/Sir:
Attached please find an emergency motion. Time is of the essence
The undersigned is Counsel for Plaintiffs in the above-referenced matter. On December 26,
2018, Plaintiffs filed their Complaint and Motion for Preliminary Injunction with the U.S. District
Court for the Western District of Michigan. (Doc. Nos. 9 and 10 on the district court docket.) The
matter was argued March 6, 2019. The Motion sought to enjoin the Bureau of Alcohol Tobacco
Firearms and Explosives’ Final Rule criminalizing private possession of over 500,000 firearm
“bumpstock” accessories and ordering their destruction within 90 days.
As of this morning, the District Court has not acted on Plaintiff’s Preliminary Injunction
Motion, now pending nearly three months. As of this morning, there are only seven days (including
today) until implementation of the final rule. On Monday morning, March 18, 2019, Counsel for
Plaintiffs contacted the district court’s case manager inquiring as to issuance of an opinion in light
of the Final Rule’s effective date, but to no avail.
Unless stayed by this Court, the Rule will become effective March 26, 2019. Plaintiffs are
therefore compelled to seek immediate and emergency relief in this Court.
Accordingly, Plaintiffs move the United States Court of Appeals for the Sixth Circuit for the
following relief:
1. Pursuant to FRAP 21, issue a writ of mandamus ordering the District Court to stay
the Final Rule’s effective date, pending issuance of a District Court opinion and order
on Plaintiffs’ pending Motion for a Preliminary Injunction;
2
2. Pursuant to FRAP 8, stay the Final Rule’s effective date of March 26, 2019, pending
a final unappealable decision on Plaintiffs’ complaint;
3. Order that the Governmental Defendants respond to Plaintiffs’ instant Motion by

Wednesday March 6, 2019; and further request that this Court issue a Stay and/or its
opinion by Friday March 22, 2019, if at all possible; and
4. Grant other relief which is warranted under these circumstances.
Respectfully submitted,
/s/ Robert J. Olson
Robert J. Olson
Counsel for Plaintiffs
rob@wjopc.com
cc: Eric J Soskin, Attorney for Defendants

Matthew J. Glover, Counsel to the Assistant Attorney General
Enclosures
No. 19-_____
444444444444444444444444
In the United States Court of Appeals
for the Sixth Circuit
________________
IN RE
GUN OWNERS OF AMERICA, INC., ET AL.,
________________
EMERGENCY PETITION FOR A WRIT OF MANDAMUS TO

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN AND
MOTION FOR A STAY OF AGENCY ACTION
________________
KERRY L. MORGAN ROBERT J. OLSON*

PENTIUK, COUVREUR & KOBILJAK, P.C. WILLIAM J. OLSON
2915 Biddle Avenue, Suite 200 JEREMIAH L. MORGAN
Wyandotte, Michigan 48192 HERBERT W. TITUS
(734) 281-7100 WILLIAM J. OLSON, P.C.
370 Maple Avenue W., Suite 4
Vienna, Virginia 22180-5615
(703) 356-5070
Counsel for Appellants
*Attorney of Record
March 19, 2019

444444444444444444444444
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Disclosure of Corporate Affiliations

and Financial Interest
Sixth Circuit
Case Number: Case Name: In re Gun Owners of America, Inc., et al
Name of counsel: Robert J. Olson
Pursuant to 6th Cir. R. 26.1, Gun Owners of America, Inc., et al.

Name of Party
makes the following disclosure:
1. Is said party a subsidiary or affiliate of a publicly owned corporation? If Yes, list below the
identity of the parent corporation or affiliate and the relationship between it and the named
party:
No.
2. Is there a publicly owned corporation, not a party to the appeal, that has a financial interest
in the outcome? If yes, list the identity of such corporation and the nature of the financial
interest:
No.
CERTIFICATE OF SERVICE
I certify that on _____________________________________ the foregoing document was served on all

parties or their counsel of record through the CM/ECF system if they are registered users or, if they are not,
by placing a true and correct copy in the United States mail, postage prepaid, to their address of record.
s/
This statem ent is filed twice: when the appeal is initially opened and later, in the principal briefs,
im m ediately preceding the table of contents. See 6th Cir. R. 26.1 on page 2 of this form .
6CA-1
8/08 Page 1 of 2
3
TABLE OF CONTENTS
Page
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Jurisdictional Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Issues Presented for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Background & Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Argument
1. A Writ of Mandamus Should Issue Here . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2. A Stay of ATF’s Regulation Pending Appeal Is the Appropriate

Remedy Here . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3. Appellants Meet the Criteria for a Stay Pending Appeal . . . . . . . . . . . . . . . 9
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4
TABLE OF AUTHORITIES
Page
Statutes
5 U.S.C. Section 706 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 13
26 U.S.C. Section 5845(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11
28 U.S.C. Section 1651(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6
Cases
Cheney v. United States Dist. Court for D.C., 542 U.S. 367 (2004) . . . . . . . . . . 6, 7
Chevron v. Nat. Res. Def. Council, 467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . 13
Guedes v. ATF, (D.C. Cir. Case #19-5042). . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11
In re Perrigo Co., 128 F.3d 430 (6th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
In re Dutton, 1993 U.S. App. LEXIS 29300, (6th Cir. 1993) . . . . . . . . . . . . . . . . . . 7
Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d

150 (6th Cir. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Mylan Pharms., Inc. v. Shalala, 81 F. Supp. 2d 30 (D.D.C. 2000) . . . . . . . . . . . . 14
Northeast Ohio Coalition for the Homeless v. Husted, 2012 U.S. App. LEXIS
26926 (6th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10
United States v. Apel, 571 U.S. 359 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
United States ex rel. Drummond, 886 F.3d 448, 450 (5th Cir. 2018). . . . . . . . . . . . 7
United States v. TRW Rifle, 447 F.3d 686, 689 n.4 (9th Cir. 2006) . . . . . . . . . . . 11
INTRODUCTION
Pursuant to Rule 21 of the Federal Rules of Appellate Procedure, Petitioners
respectfully request that this Court issue a writ of mandamus to the district court
below, directing the court to enjoin implementation of Defendants’ Final Rule
until such time as the district court issues its opinion on Petitioners’ motion for
preliminary injunction in the case before it, which has now been pending nearly
three months.
Additionally, Pursuant to Rule 8 of the Federal Rules of Appellate
Procedure, Petitioners also seek from this Court a stay of implementation of the
Final Rule, pending any appeal and the issuance of a final unappealable decision
on Petitioners’ complaint. Pursuant to FRAP 8(a)(2)(A)(ii), Petitioners assert that
they have requested this relief from the district court, which has not timely ruled
on their motion.
This case involves a challenge by Gun Owners of America, et al.
(“Petitioners”) to the Bureau of Alcohol, Tobacco, Firearms, and Explosives’
(“ATF”) et al. (“Defendants”) Final Rule classifying so-called “bump fire stocks”
as machineguns, banning their private possession, and ordering their destruction.
83 Fed. Reg. 66514. Petitioners have pursued this case with all diligence, and
have taken every step possible in the district court to obtain a timely ruling on
their Motion for Preliminary Injunction (ECF # 9, 10), filed December 26, 2018.
The district court, however, has failed to issue a ruling on Petitioners’ motion.
There now remain only seven days (including today) until ATF’s Final Rule
becomes effective next Tuesday, March 26, 2019. Prior to that date, hundreds of
thousands of law-abiding gun owners have been ordered to destroy over $100
million of lawfully owned property, or risk felony prosecution. That simply
cannot be allowed to happen, especially while Petitioners’ claims have yet to be
adjudicated.
JURISDICTIONAL STATEMENT
This Petition arises from Gun Owners of America, et al. v. William P. Barr
et al., Docket No. 18-1429, pending in the U.S. District Court for the Western
District of Michigan. This Court has jurisdiction over this Petition, and the
authority to issue writs of mandamus, pursuant to the All Writs Act, 28 U.S.C.
Section 1651(a), as laid out in Rules 8 and 21 of the Federal Rules of Appellate
Procedure. The Court has authority to enjoin federal agencies pursuant to the
Administrative Procedures Act, 5 U.S.C. Section 706.
ISSUES PRESENTED FOR REVIEW
Whether the Court should issue a writ of mandamus to the district court,
ordering that court to enjoin the implementation date of a final agency rule, given
2
that the district court has failed to rule on Plaintiff’s motion for preliminary
injunction of the final rule, which has now been pending nearly three months?
Whether the Court should stay implementation of that final agency rule,
pending resolution of Petitioners’ claims, where the agency has arbitrarily ordered
the wholesale destruction of over $100 million of property, owned by hundreds of
thousands of law-abiding Americans, by March 26, 2019?
BACKGROUND & SUMMARY OF ARGUMENT
On December 26, 2018, Defendants published in the Federal Register a
Final Rule purporting to further define the statutory definition as to what
constitutes a machinegun. 83 Fed. Reg. 66514. The Final Rule also states
specifically that popular firearm accessories known as “bump fire stocks” are now
considered machineguns and thus banned for sale and possession under federal
law. In reclassifying bump stocks as machineguns, the Final Rule reverses over a
decade of prior and repeated ATF classifications of bump stocks as mere firearm
accessories (entirely unregulated by federal law). Under the Final Rule, the
owners of what Defendants estimate to be 520,000 bump stocks (Petitioners
estimate the actual number to be far higher) are required to destroy or surrender
their lawfully owned property (valued at over $100 million) before March 26,
3
2019, or else face criminal penalties of up to 10 years’ imprisonment and a
$250,000 fine.
On December 26, 2018 (the day after Christmas, and during the government
shutdown), the Final Rule was officially published in the Federal Register.
Petitioners filed their complaint and motion for preliminary injunction on the very
same day. See ECF # 1, 9, 10. Petitioners’ complaint challenged the Final Rule as
being contrary to a clear and unambiguous statute, and thus outside ATF’s
authority to promulgate under the Administrative Procedures Act (“APA”).1
After the district court denied without prejudice Defendants’ motion for stay
during the government shutdown (ECF # 20), the parties filed a “Joint Stipulation
to Expedited Briefing Schedule” on January 8, 2019. ECF # 22. The parties
jointly asked the court for an expedited briefing schedule, culminating with oral
argument in early February 2019.
The district court rejected this joint request for expedited briefing and oral
argument by the parties. Rather, the court established its own briefing schedule —
greatly extending the dates requested by the parties by nearly a month. See ECF #
22, 23. By its order, the court extended the dates for briefing even beyond the
1
Petitioners also brought a due process claim and a takings claim, but did
not brief those claims at the preliminary injunction stage.
4
standard deadlines required by the court’s local rules.2 Initially, the court set oral
argument for March 11, 2019. However, in response to a letter by Petitioners
(ECF #31) stating their need for a prompt hearing and an opinion (leaving
sufficient time to challenge an adverse decision, should one issue), the district
court moved the hearing date to five days earlier, on March 6, 2019 (ECF #33).
Oral argument was heard by the district court on March 6, 2019 in
Kalamazoo, Michigan. At the culmination of oral argument, the district court
noted the time-sensitive nature of the case, and promised to endeavor to issue a
ruling soon. The same day, the court issued a minute entry on the docket noting
that “motion taken under advisement, opinion and order to issue.” ECF #43.
However, no decision has been forthcoming. On Monday morning, March 18,
2019, Counsel for Plaintiffs contacted the district court's case manager, inquiring
as to issuance of an opinion, in light of the Final Rule’s effective date, but to no
avail. Bump stock owners are now left with only seven days (including today)
before the Final Rule becomes effective.
2
LCivR 7.2(c) of the Western District of Michigan requires that “[u]nless
otherwise ordered, any party opposing a dispositive motion shall, within
twenty-eight (28) days after service of the motion, file a responsive brief,” and
“[t]he moving party may, within fourteen (14) days after service of the response,
file a reply brief.” Adherence to that local rule would have required a response
brief by late January and a reply by mid-February.
5
Petitioners, their members and supporters, and American gun owners in
general both need and deserve an answer on this issue. Petitioner Gun Owners of
America has received numerous phone calls and emails from its law-abiding
members and supporters, frantically asking for advice on their continued
possession of bump stocks at this late date. At least some of these individuals plan
to surrender their property to ATF no later than Monday, March 25 (the day before
implementation of the Final Rule), or otherwise destroy their property so as not to
risk felony prosecution at the hands of the government. This cannot be permitted
to occur until Petitioners’ claims have been adjudicated. In order to preserve the
status quo, this Court should issue a writ of mandamus to the district court
ordering the district to enjoin implementation of the Final Rule pending issuance
of its decision, as well as stay implementation of the Final Rule while Petitioners’
claims are adjudicated in the courts.
ARGUMENT
1. A Writ of Mandamus Should Issue Here.
This court has jurisdiction to issue a writ of mandamus pursuant to 28
U.S.C. Section 1651(a). A party seeking mandamus must demonstrate that it has a
“clear and indisputable” right, there are “no other adequate means” of relief, and
the writ is otherwise “appropriate under the circumstances.” Cheney v. United
6
States Dist. Court for D.C., 542 U.S. 367, 380-81 (2004). This Court looks to
several specific factors in considering petitions for a writ of mandamus, including
whether: “(1) The party seeking the writ has no other adequate means, such as
direct appeal, to attain the relief desired ... or (2) The petitioner will be damaged or
prejudiced in a way not correctable on appeal. (This guideline is closely related to
the first.).” In re Perrigo Co., 128 F.3d 430, 435 (6th Cir. 1997) (factors 3-5
omitted because they deal with “orders” by a district court, and thus do not apply
here). Petitioners clearly meet both of these relevant tests.
Certainly, a district court has broad discretion to set its own schedule for
briefing and the issuance of its opinions. But that discretion cannot extend to
denying a Plaintiff a decision in a case with a government-imposed schedule
where a 90-day window has nearly run out and the deadline is now upon us. As
this Circuit has noted, “[t]he Supreme Court likewise has stated that a writ of
mandamus is available to a court of appeals ‘where a district court persistently and
without reason refuses to adjudicate a case properly before it.’ Will v. Calvert Fire
Ins. Co., 437 U.S. 655, 661-62, 57 L. Ed. 2d 504, 98 S. Ct. 2552 (1978).” In re
Dutton, 1993 U.S. App. LEXIS 29300, *8 (6th Cir. 1993). See also United States
ex rel. Drummond, 886 F.3d 448, 450 (5th Cir. 2018).
7
Aside from the requested relief, there simply is no other adequate means for
Petitioners to obtain a decision on their claims before they suffer irreparable harm
on March 26. Petitioners are not seeking an order forcing the district court to rule,
or rule by a certain date, but simply an order to preserve the status quo and enjoin
the Final Rule from going into effect while Petitioners’ claims proceed through the
normal judicial process. This will permit the district court the time it needs to
consider Petitioners’ motion.
Petitioners have diligently pursued their case in the district court, attempting
to obtain a prompt resolution of their claims. However, the district court has not
ruled on Plaintiffs’ motion, which has been pending nearly three months, and
Plaintiffs cannot afford to wait any longer. As noted above, the challenged
regulation becomes effective next Tuesday, March 26, 2019.
Thus, in order to avoid the significant and irreparable harm that the
government agrees will follow (ECF #34, p. 27 n. 16), it is necessary for this Court
to issue a writ of mandamus instructing the lower court to place implementation of
the Final Rule on hold pending its resolution of Petitioners’ claims. This will
serve the interests of justice, as it will maintain the status quo pending the district
court’s and this Court’s consideration of this case.
8
2. A Stay of ATF’s Regulation Pending Appeal Is the Appropriate
Remedy Here.
In other bump stock challenges pending in the U.S. Court of Appeals for the
District of Columbia, the government challenged the Appellants’ request for
expedited briefing, arguing that “the proper procedural mechanism ... is to file an
emergency motion for injunctive relief pending appeal.” Guedes v. ATF, USCA
D.C. Cir. Case #19-5042, Document #1775047, pp. 1, 4. In those cases, the
government had objected to an expedited appellate briefing schedule, noting that
the “extremely compressed timeline” requested by the Petitioners would require
briefing, argument, and decision by the court to occur within a period of 27 days.
Id. at 1-2. Thus, Petitioners seek the relief in this case the government believed
appropriate in the D.C. bump stock cases. Ordinarily, Petitioners would ask for
this relief after issuance of the district court’s opinion. However, in this case there
simply is insufficient time to wait any longer.
3. Appellants Meet the Criteria for a Stay Pending Appeal.
This Court has noted that it “examines four factors when considering a stay
pending appeal under Federal Rule of Appellate Procedure 8(a): (1) the likelihood
that the party seeking the stay will prevail on the merits of the appeal; (2) the
likelihood that the moving party will be irreparably harmed absent a stay; (3) the
9
prospect that others will be harmed if the court grants the stay; and (4) the public
interest in granting the stay.” Northeast Ohio Coalition for the Homeless v.
Husted, 2012 U.S. App. LEXIS 26926, *2 (6th Cir. 2012). These are “‘not
prerequisites that must be met, but are interrelated considerations that must be
balanced together.’” Id. at *6.
The inquiry on a motion for stay pending appeal is similar to the inquiry on
a motion for preliminary injunction (which is what Appellants are seeking in the
district court). For example, “[t]o justify the granting of a stay ... a movant need
not always establish a high probability of success on the merits. ... The probability
of success that must be demonstrated is inversely proportional to the amount of
irreparable injury Petitioners will suffer absent the stay. Id. Simply stated, more of
one excuses less of the other.” Michigan Coalition of Radioactive Material Users,
Inc. v. Griepentrog, 945 F.2d 150, 153 (6th Cir. 1991). Additionally, in focusing
on the likelihood of success, courts look not at whether the Appellants will
actually prevail, but whether they “have strong arguments” and whether their
“argument ... has merit.” Husted at *6, 11.
a. Appellants have presented a strong likelihood of success on the
merits to the district court. See ECF # 10, 37. Federal law, in pertinent part,
defines a machinegun as “any weapon which shoots, is designed to shoot, or can
10
be readily restored to shoot, automatically more than one shot, without manual
reloading, by a single function of the trigger.” 26 U.S.C. Section 5845(b).
Here, Defendants have admitted that definition is clear and unambiguous.
83 Fed. Reg. 66527; Brief for Appellees in Guedes v. ATF, 19-5042 Doc #
1777426 (D.D.C), p. 37. However, rather than simply “applying the definition to
[bump stocks],” (U.S. v. TRW Rifle, 447 F.3d 686, 689 n.4 (9th Cir. 2006),
Defendants seek to further “interpret” that unambiguous statute, and thereby
‘define the definition’ of a machinegun. Admitting that a bump stock does not fire
more than one round by “a single function of the trigger,” Defendants concede
they have rewritten the statute to be “single pull of the trigger,” an “expanded”
standard they then argue (incorrectly) covers bump stocks. ECF #37, pp. 1-2. As
Petitioners point out, however, bump stocks do not even fire more than a single
round by a “single pull of the trigger.” ECF # 10, p. 7.
Next, Defendants then create a definition of “automatically” that also does
not encompass bump stocks. The Final Rule alleges a bump stock is a
machinegun because it “harness[es] ... recoil energy....” 83 Fed. Reg. 66554. But,
unable to counter Petitioners claims that bump stocks are incapable of harnessing
energy, Defendants then argued only that a bump stock “helps a shooter channel
recoil energy” — less than the Final Rule requires. ECF #34, p. 23. Later still,
11
Defendants sought only to demonstrate that bump stocks “channel recoil energy”
— something entirely different than “harness,” as Petitioners pointed out. ECF
#37, p. 8.
Defendants also argue that “automatically” means “functioning as the result
of a self-acting or self-regulating mechanism.” 83 Fed. Reg. 66553. But they
admit that a bump stock doesn’t act by itself, but rather because of the shooter: “in
conjunction with the shooter’s maintenance of pressure....” Id. at 66516. And
Defendants do not claim that a bump stock is the actual “mechanism” which
channels energy, but rather incomprehensibly that the “empty space” behind the
bump stock is the “mechanism.” ECF #37 p. 8.
Next, Defendants claim additional human input, such as the forward
pressure necessary to operate a bump stock, is permissible while still rendering a
firearm “automatic.” Yet as Petitioners pointed out, the statute provides the
precise boundaries of automatic — “by a single function of the trigger.” ECF #
37, p. 10. Since bump stocks require more input than “a single function of the
trigger,” they are not automatic under the definition.
Finally, Petitioners have explained the numerous and repeated factual errors
in Defendants’ Final Rule and in their briefing, wherein Defendants now suddenly
claim bump stocks in 2019 somehow function precisely the opposite than they did
12
a decade before. ECF #37, p. 6, et seq. ATF has changed not only its
interpretation of the law, but its fundamental recitation of the facts — all designed
to reach the result it wishes. Countering Defendants’ unsupported and contrived
description, Petitioners filed factual declarations in support of their Motion, which
were not rebutted by the Defendants. These declarations describe the actual
functioning of a bump stock and why it cannot be a machine gun as a matter of
law.
Defendants in this case have expressly disclaimed that they are entitled to
any deference under Chevron v. Nat. Res. Def. Council, 467 U.S. 837 (1984), in
interpreting this criminal statute, pursuant to United States v. Apel, 571 U.S. 359
(2014). ECF # 38. As Petitioners explained at oral argument, Apel applies not
only to Chevron deference, but to the same “arbitrary and capricious” deference
accorded under the APA, 5 U.S.C. Section 706. In other words, it is up to the
courts to determine what the statute means. And the government has conceded
that the statute as written is unambiguous and does not apply to bump stocks.
Petitioners should prevail on that basis alone.
b. As noted above, Defendants has conceded that irreparable harm will
result in this case. ECF #34, p. 27 n. 16.
13
c. Finally, as Petitioners explained in their briefing and at oral
argument, there is no public safety concern here. First, Defendants have offered
no concrete evidence that bump stocks have ever been used in any crime,
including the Las Vegas shooting. Second, Defendants offer no conceivable
explanation how banning bump stocks would prevent crime, when all sorts of
other devices, techniques, and firearms remain on the market, offering identical (if
not more effective) results. Rather, as Petitioners explained, “[i]t is in the public
interest for ... an agency to implement properly the statute it administers.” Mylan
Pharms., Inc. v. Shalala, 81 F. Supp. 2d 30, 45 (D.D.C. 2000).
CONCLUSION
For the foregoing reasons, Plaintiff-Appellants respectfully request that
their emergency petition and motion be granted and that this Court (i) issue a writ
of mandamus ordering the district to enjoin implementation of the Final Rule
pending issuance of its decision, and (ii) order the Final Rule stayed and Appellees
enjoined from enforcing that rule, pending a final unappealable decision on
Petitioners’ complaint. Petitioners respectfully request the Court require
Defendants to file any response3 by Wednesday, March 20 (pursuant to FRAP
3
If Defendants need more time to respond, they are, of course, have the
power to extend the implementation of the Final Rule.
14
21(b)(1)) and, if at all possible, to rule on Petitioners’ petition and motion no later
than Friday, March 21, 2019, in order to avoid the otherwise irreparable and
nationwide destruction of property that no doubt will occur in the last few days
before the Final Rule becomes effective.
/s/ Robert J. Olson

KERRY L. MORGAN ROBERT J. OLSON*
PENTIUK, COUVREUR & KOBILJAK, P.C. WILLIAM J. OLSON
2915 Biddle Avenue, Suite 200 JEREMIAH L. MORGAN
Wyandotte, Michigan 48192 HERBERT W. TITUS
(734) 281-7100 WILLIAM J. OLSON, P.C.
370 Maple Avenue W., Suite 4
Vienna, Virginia 22180-5615
(703) 356-5070
*Attorney of Record
15
CERTIFICATE OF COMPLIANCE WITH RULE 32(a)
IT IS HEREBY CERTIFIED:
1. That the foregoing Emergency Petition for a Writ of Mandamus to the
United States District Court for the Western District of Michigan and Motion for a
Stay of Agency Action, complies with the type-volume limitation of Rule
21(d)(1), Federal Rules of Appellate Procedure, because this petition contains
3,169 words, excluding the parts of the petition exempted by Rule 32(f).
2. This petition complies with the typeface requirements of Fed. R. App.
P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using WordPerfect
version 18.0.0.200 in 14-point Times New Roman.
/s/ Robert J. Olson

Robert J. Olson
Dated: March 19, 2019

CERTIFICATE OF SERVICE
IT IS HEREBY CERTIFIED that service of the foregoing Emergency

Petition for a Writ of Mandamus to the United States District Court for the
Western District of Michigan and Motion for a Stay of Agency Action, was made,
this 19th day of March 2019, by email, upon all parties or their counsel of record.
/s/ Robert J. Olson

Robert J. Olson
ADDENDUM
Case 1:18-cv-01429 ECF No. 9 filed 12/26/18 PageID.163 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN
GUN OWNERS OF AMERICA, INC., )

)
GUN OWNERS FOUNDATION, )
) Case No. 1:18-cv-01429
VIRGINIA CITIZENS DEFENSE )
LEAGUE ) Hon. __________________
)
MATT WATKINS, )
) MOTION FOR PRELIMINARY
TIM HARMSEN, and ) INJUNCTION
)
RACHEL MALONE, ) EXPEDITED CONSIDERATION
) REQUESTED
Plaintiffs, )
) ORAL ARGUMENT
v. ) REQUESTED
)
MATTHEW WHITAKER, in his official )
capacity as Acting Attorney General, )
of the United States, )
)
U. S. JUSTICE DEPARTMENT, )
)
BUREAU OF ALCOHOL, TOBACCO, )
FIREARMS AND EXPLOSIVES, and )
)
THOMAS E. BRANDON, in his official )
capacity as Acting Director, Bureau of )
Alcohol, Tobacco, Firearms, and )
Explosives )
)
Defendants. )
____________________________________)
PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
Pursuant to Fed. R. Civ. P. 65(a), Plaintiffs hereby move for a preliminary injunction as
set out below, and for the reasons set out in their accompanying Memorandum and Verified
Complaint for Declaratory Injunctive Relief.

As set forth in their Memorandum and Complaint, Plaintiffs allege that Defendant ATF’s
noticed regulation, banning the ownership of so-called “bump fire stocks,” exceeds the agency’s
jurisdiction and authority, is arbitrary, capricious, an abuse of discretion, and otherwise not in
accordance with the law. Plaintiffs submit that they meet the standards for the issuance of a
preliminary injunction: they have shown a probability of success on the merits, they will be
irreparably harmed if an injunction does not soon issue, the public interest will be served by
enjoining Defendants’ actions, and Plaintiffs have no adequate remedy at law.
Pursuant to Local Civil Rule 7(d), counsel for Plaintiffs telephoned Ryan Cobb at the
office of US Attorney for the Western District of Michigan at (616) 808-2031 requesting
concurrence with the relief sought herein by leaving a message. Because a preliminary
injunction presents no monetary risks to Defendants, Plaintiffs request that bond be set at $1.
Fed. R. Civ. P. 65(c). For the reasons stated in the accompanying Memorandum and Complaint,
Plaintiffs pray that the Court grant this motion and preliminarily enjoin Defendants from
implementing the noticed regulation, until a final hearing on the merits. Oral argument is
requested on this motion, because of the complex legal issues involved in this case.
Pursuant to Local Civil Rule 7(e), Plaintiffs respectfully request an expedited briefing
schedule on this motion, in order to permit this Court to resolve Plaintiff’s motion as quickly as
possible. Time is of the essence in this case. The noticed regulation will go into effect on March
26, 2019, at which time bump stock owners must have either destroyed or surrendered their
property. No doubt, many such persons will not wait until the last minute to do so, at risk of
felony prosecution once the regulation becomes effective. Moreover, Defendants will not be
harmed by an expedited briefing schedule, because the process to enact the noticed regulation
2
began in December of 2017, and Defendants have indicated they are aware litigation such as this
would follow enactment.
Robert J. Olson /s/ Kerry L. Morgan

William J. Olson Kerry L. Morgan*
Jeremiah L. Morgan (MI Bar No. 32645)
Herbert W. Titus Pentiuk, Couvreur & Kobiljak, P.C.
William J. Olson, P.C. 2915 Biddle Avenue
370 Maple Avenue West, Suite 4 Edelson Building
Vienna, VA 22180-5615 Suite 200
703-356-5070 (telephone) Wyandotte, MI 48192
703-356-5085 (fax) 734-281-7100 (telephone)
wjo@mindspring.com (e-mail) 734-281-2524 (fax)
Of counsel Kmorgan@pck-law.com (e-mail)
*Counsel for Plaintiffs
Dated: December 26, 2018
3
Case 1:18-cv-01429-PLM-RSK ECF No. 10 filed 12/26/18 PageID.166 Page 1 of 32
UNITED STATES DISTRICT COURT

SOUTHERN DIVISION
GUN OWNERS OF AMERICA, INC.,
GUN OWNERS FOUNDATION,

Case No. 1:18-cv-01429
VIRGINIA CITIZENS DEFENSE LEAGUE,
Hon. _________________
MATT WATKINS,
TIM HARMSEN, and
RACHEL MALONE,
Plaintiffs, MEMORANDUM IN SUPPORT

OF PLAINTIFFS’ MOTION FOR
v. A PRELIMINARY INJUNCTION
MATTHEW WHITAKER, in his official capacity as

Acting Attorney General of the United States,
U.S. DEPARTMENT OF JUSTICE,
BUREAU OF ALCOHOL, TOBACCO,

FIREARMS AND EXPLOSIVES, and
THOMAS E. BRANDON, in his official capacity as Acting

Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives,
Defendants.
__________________________________________________________________________
Kerry L. Morgan* (P32645) Robert J. Olson
PENTIUK, COUVREUR & KOBILJAK, P.C. William J. Olson
2915 Biddle Avenue, Suite 200 Jeremiah L. Morgan
Wyandotte, MI 48192 Herbert W. Titus
Main: (734) 281-7100 WILLIAM J. OLSON, P.C.
F: (734) 281-2524 370 Maple Avenue West, Suite 4
kmorgan@pck-law.com Vienna, VA 22180
*Counsel for Plaintiffs T: (703) 356-5070
F: (703) 356-5085
wjo@mindspring.com
Of counsel
_______________________________________________________________________
TABLE OF CONTENTS
Page
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. Preliminary Injunction Standard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
II. Plaintiffs Are Likely to Succeed on Their APA Claims.. . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. Bump Stocks Are Not Machineguns, regardless of whether this Court

Applies the Statutory Language “Single Function of the Trigger” or ATF’s
“Single Pull of the Trigger” Statutory Revision.. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1. A Bump Fire Stock Does Not Permit a Firearm to Fire More than
One Shot by a Single Function of the Trigger. . . . . . . . . . . . . . . . . . . . . . . 5
2. A Bump Fire Stock Does Not Permit a Firearm to Fire More than
One Shot by a Single Pull of the Trigger. . . . . . . . . . . . . . . . . . . . . . . . . . . 7
B. Firearms Using Bump Stocks Do Not Fire “Automatically”.. . . . . . . . . . . . . . . . 10
1. Bump Fire Is Not an “Automatic” Process, but Instead Is

Biologically Generated and Controlled. . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2. A Bump Stock Does Not Contain any “Self-Acting or Self-

Regulating Mechanism.” In Fact, It Has No Internal Moving Parts
at All.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3. A Bump Stock Does Not Channel, Harness, Store, or Transmit

Energy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
C. Bump Fire Is Not Automatic Fire Simply because It “Mimics” Automatic

Fire. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
D. ATF’s Proposed Application of Its Regulation Is Nonsensical, Banning

Bump Stocks by Name, while Sanctioning Other Forms of Bump Fire. . . . . . . . 17
E. The Noticed Regulation Could Be Used to Classify Semiautomatic

Firearms as Machineguns.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ii
F. Since the Noticed Regulation Is Clearly Contrary to an Unambiguous

Statute, No Deference Is Permitted. Even if It Were, ATF Has Provided
No Reasoned Explanation for Its Sudden About-Face. . . . . . . . . . . . . . . . . . . . . 20
III. Plaintiffs Will Be Irreparably Harmed if the Noticed Regulation Is Allowed to

Take Effect. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
IV. The Balance of Equities Weighs in Favor of Plaintiffs, and the Public Interest
Supports Granting Injunctive Relief. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
A. ATF Has Disclaimed Public Safety as a Justification. . . . . . . . . . . . . . . . . . . . . . 25
B. The Public Interest Will Be Served by the Issuance of an Injunction. . . . . . . . . . 26
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
iii
MEMORANDUM IN SUPPORT OF PLAINTIFFS’

MOTION FOR A PRELIMINARY INJUNCTION
Pursuant to Fed. R. Civ. P. 65(a), Plaintiffs submit the following memorandum of law in
support of their motion for a preliminary injunction. Plaintiffs ask this Court to enjoin
Defendants from enforcing their newly enacted regulation banning so-called “bump fire” rifle
stocks. See 83 Fed. Reg. 66514 (Dec. 26, 2018) (“Final Rule”). Unless enjoined, this regulatory
ban will become effective on March 26, 2019. It will transform at least 520,000 legally owned
bump stocks into contraband — an unlawfully possessed and unregisterable machinegun. It will
require that these valuable items be surrendered or destroyed. The Defendants’ regulation will
make mere possession will be a crime ipse-dixit, even if an unsuspecting owner never knew of
the regulatory change. That cannot be permitted.
For well over a decade, Defendants repeatedly and consistently have concluded that bump
fire stocks do not meet the federal statutory definition as to what constitutes a machinegun, and
thus are outside the purview of the Bureau of Alcohol, Tobacco, Firearms, and Explosives
(“ATF”) to ban. Virtually everyone has agreed with that conclusion, including ATF employees,
both Republican and Democratic members of Congress, the ATF Association, and even the
current head of ATF. See Compl. ¶¶ 85, 88, 99 n.10. Indeed, bump fire stocks were specially
designed to fall outside the statutory definition of a machinegun, consistent with guidance issued
by the ATF. Nevertheless, Defendants now have departed from their past adherence to the
statutory definition, switched their bump stock “classification” 180 degrees, and abandoned
ATF’s prior administrative rulings, all for one simple reason — earlier this year, President
1
Trump ordered that bump stocks be banned.1
In 2016, then-Judge Gorsuch lamented the cancer-like spread of the administrative state,
opining that an agency should not be permitted to “reverse its current view 180 degrees anytime
based merely on the shift of political winds....” Gutierrez-Brizuela v. Lynch, 834 F.3d 1142,
1152 (10th Cir. 2016) (Gorsuch, J., concurring). Yet that is precisely what has occurred here.
The noticed regulation was enacted pursuant to a political decision, and is without justification in
fact or law. The bump stock ban is not, as ATF claims, an “interpretation” of the statute (Final
Rule at 66517), but is instead based on a new and novel revision of the statutory text defining a
machinegun.
ATF alleges that bump stocks permit semiautomatic rifles to “mimic” machineguns
(Final Rule at 66516), and thus has decided to usurp the legislative function by rewriting the
statutory language so that bump stocks become machineguns.2 ATF assumes it knows what
Congress would have wanted it to do but, of course, Congress has chosen not to ban bump
1
ATF claims that “the President specifically directed [ATF] to clarify the legal status of
bump-stock-type devices....” Final Rule at 66528 (emphasis added). That’s putting it mildly.
President Trump didn’t order the agency to investigate whether bump stocks are machineguns,
he declared that bump stocks are machineguns, and ordered ATF to ban them (“Today, I am
directing the Department of Justice ... to propose for notice and comment a rule banning all
devices that turn legal weapons into machineguns.”) Compl. ¶ 4 (emphasis added).
2
ATF has openly stated that “[t]his final rule is intended to interpret the definition of
‘machinegun’ ... such that it includes bump-stock-type devices....” (Final Rule at 66543
(emphasis added)), thereby admitting that the noticed regulation was designed to reach a
particular result, predetermined before the process was begun. See also Final Rule at 66517
(noting that ATF was directed “as expeditiously as possible, to propose for notice and comment a
rule banning” bump stocks).
2
stocks.3
The noticed regulation conflicts with the plain text of an unambiguous statute, is arbitrary
and capricious, and cannot be sustained under the Administrative Procedure Act (“APA”). A
preliminary injunction is necessary to enjoin the Defendants’ usurpation of Congressional power,
and to preserve the status quo for the owners of what ATF estimates to be 520,000 bump fire
rifle stocks, until the challenge can be heard.
ARGUMENT
I. PRELIMINARY INJUNCTION STANDARD.
The elements for a preliminary injunction are: “(1) the likelihood of the plaintiff’s
success on the merits, (2) whether plaintiff will suffer irreparable injury without the injunction,
(3) the harm to others which will occur if the injunction is granted, and (4) whether the injunction
would serve the public interest.” In re Eagle-Picher Industries, Inc., 963 F.2d 855, 858 (6th Cir.
1992). In this Circuit, “these are factors to be balanced, not prerequisites to be met.” S. Glazer’s
Distributors of Ohio, LLC v. Great Lakes Brewing Co., 860 F.3d 844, 849 (6th Cir. 2017).
Additionally, “[t]he final two factors, harm to others and the public interest, ‘merge when the
Government is the opposing party.’” Al-Sarih v. Sessions, 2018 U.S. App. LEXIS 2482, *4 (6th
Cir. 2018). Each factor weighs heavily in Plaintiffs’ favor here.
II. PLAINTIFFS ARE LIKELY TO SUCCEED ON THEIR APA CLAIMS.
ATF’s claim that bump stocks are machineguns is contradicted by the plain and
unambiguous text of 26 U.S.C. § 5845, defining a machinegun. In addition to contradicting the
3
R. Shabad, “Proposed bans on bump stocks have stalled in Congress,” CBS News
(Nov. 6, 2017), https://www.cbsnews.com/news/proposed-bans-on-bump-stocks-have-stalled-in-
congress/.
3
clear terms of an unambiguous statute, ATF’s noticed regulation is arbitrary and capricious. It is
arbitrary, because it is founded on political pressure and demonstrably false factual assumptions,
rather than on fixed rules, procedures, or law. It is capricious, because its future precedential
effect on other firearm accessories — and even semiautomatic firearms as a class — is
unpredictable, and subject to political administrative whim. In crafting the noticed regulation,
ATF “has relied on factors which Congress has not intended it to consider,” and has “offered an
explanation for its decision that runs counter to the evidence before the agency” which is “so
implausible that it could not be ascribed to a difference in view or the product of agency
expertise.” See Radio Ass’n on Defending Airwave Rights v. United States DOT, 47 F.3d 794,
802 (6th Cir. 1995) (citing Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983)). An agency regulation unmoored to the statute’s actual
text is the textbook definition of an arbitrary and capricious regulation, and one which exceeds
the agency’s statutory jurisdiction and authority.
Unlike some other federal circuits which are highly deferential to agency “interpretation,”
in this Circuit, “a reviewing court must take care not to merely rubber stamp agency decisions.”
Id. Indeed, once the mechanical operation of a bump stock (including the shooter’s
indispensable manipulation thereof) is understood, it is clear that a bump stock is not a
machinegun, under either the statute or as the noticed regulation defines it. Federal law defines a
machinegun as:
any weapon which shoots, is designed to shoot, or can be readily restored to shoot,
automatically more than one shot, without manual reloading, by a single
function of the trigger. The term shall also include the frame or receiver of any
such weapon, any part designed and intended solely and exclusively, or
combination of parts designed and intended, for use in converting a weapon into a
4
machinegun, and any combination of parts from which a machinegun can be

assembled if such parts are in the possession or under the control of a person. [26
U.S.C. § 5845 (emphasis added); see also 27 C.F.R. §§ 447.11, 478.11, and
479.11.]
Importantly, “automatically” and “single function of the trigger” are separate and distinct
requirements, both of which must be met in order for a device to constitute a machinegun. See,
e.g., Final Rule at 66553 (defining each element separately).
ATF’s noticed regulation purports to flesh out the statutory definition by redefining
“automatically” to be “functioning as the result of a self-acting or self-regulating mechanism
that allows the firing of multiple rounds through a single function of the trigger,” and redefining
“single function of the trigger” to be “a single pull of the trigger.” Final Rule at 66554. Armed
with its new “interpretation,” ATF claims that bump stocks qualify under this definition because
they “harness[] the recoil energy of the semiautomatic firearm ... so that the trigger resets and
continues firing without additional physical manipulation of the trigger by the shooter.” Id.
The following argument sections break down the statutory elements, along with ATF’s regulatory
concepts and, in each case, demonstrate that bump stocks do not fall under either Congress’ 84-
year-old statutory definition — and, surprisingly, do not even fall under ATF’s new regulatory
definition of machineguns.
A. Bump Stocks Are Not Machineguns, regardless of whether this Court

Applies the Statutory Language “Single Function of the Trigger” or ATF’s
“Single Pull of the Trigger” Statutory Revision.
1. A Bump Fire Stock Does Not Permit a Firearm to Fire More than One
Shot by a Single Function of the Trigger.
The National Firearms Act requires that, in order to be classified a machinegun, a firearm
must fire “more than one shot ... by a single function of the trigger.” 26 U.S.C. § 5845
5
(emphasis added). By definition, a semiautomatic firearm does not operate in this fashion.4
Neither does a semiautomatic firearm equipped with a bump stock. Vasquez Decl. to Complaint,
Doc. 1 ¶ 28(b). When a bump stock is installed and used on a semiautomatic rifle, the rifle’s
mechanical processes are unchanged. Compl. ¶ 43;Vasquez Decl. ¶ 13(c). With or without a
bump stock, the rifle fires one shot, and one shot only, each time the trigger is depressed and
reset. Click, bang, click; click, bang, click. Vasquez Decl. ¶ 13(a), 23. On the other hand, a
machinegun will fire a series of shots when the trigger is depressed and held to the rear. Click,
bang, bang, bang, bang, click. Compl. ¶ 33.
A bump fire stock does not allow a firearm to fire more than one shot by a “single
function of the trigger.” Vasquez Decl. ¶ 8. The only difference between traditional
semiautomatic fire and semiautomatic bump fire is that a bump stock helps a shooter make the
semiautomatic firing process occur more rapidly — but never automatically. As even ATF
admits, bump stocks only “allow[] ‘rapid fire’ operation of the semiautomatic firearm to which
they are affixed.” Final Rule at 66516 (emphasis added).
Properly understood, a “function” of a trigger refers to the mechanical process through
which a trigger goes when each shot is fired. That is how ATF described it as recently as 2009,
in its National Firearms Act handbook, which states that the “‘single function of the trigger’
portion of the definition relates to the characteristics of the weapon that permit full automatic
fire.” ATF National Firearms Act Handbook, U.S. Department of Justice, April 2009, Section
2.1.6, p. 11. For instance, in the case of an semiautomatic AR-15 rifle (the most popular rifle in
4
The Supreme Court noted in Staples v. United States, 511 U.S. 600 (1994), that “[w]e
use the term ‘semiautomatic’ to designate a weapon that fires only one shot with each pull of the
trigger.” Id. at 602 n.1.
6
the United States and the most common rifle on which bump stocks are used), depressing the
trigger releases the hammer, which impacts the firing pin, in turn striking and discharging the
primer on a round of ammunition. Thereafter, the hammer is forced rearward by the
reciprocating bolt, where it is captured by the disconnector. When the trigger is released by the
shooter’s finger, the hammer “resets” onto the trigger sear.5 Depressing the trigger again starts
the process again. This entire semiautomatic process occurs each and every time a round is fired
using a bump stock. Thus, a bump stock fires one round for every “single function of the
trigger.”
2. A Bump Fire Stock Does Not Permit a Firearm to Fire More than One
Shot by a Single Pull of the Trigger.
In 2006, ATF began to move away from the statutory language “single function of the
trigger.” As ATF notes in its Notice of Proposed Rulemaking (“NPRM”), “ATF reached that
conclusion [that] the best interpretation of the phrase ‘single function of the trigger’ includes6 a
‘single pull of the trigger.’” Final Rule at 66517. As ATF rationalizes, “ATF previously focused
on the trigger itself ... but adopted a better legal and practical interpretation of ‘function’ to
encompass the shooter’s activation of the trigger.” NPRM at 13447 (emphasis added). In other
words, ATF moved away from the statutory term “function” (which describes what the trigger is
doing), employing a very different term “pull” (which describes what the shooter is doing).7 In
5
See https://www.youtube.com/watch?v=xh2FjzVVIZY.
6
ATF’s NPRM stated that single function “was” single pull. NPRM at 10. However,
the final rule states that single function “includes” single pull.
7
Armed with its new “interpretation” of the statute, ATF was able to convince the
Eleventh Circuit in 2009 that “single function” of a trigger instead meant “single pull” by a
shooter or, as that court put it, a “single application of the trigger by a gunman.” Akins v. United
7
spite of this new “interpretation” of “function” to mean “pull,” ATF has continued to classify
devices based on their trigger’s mechanical movement rather than the shooter’s biological
process.8
As explained above, “single function” should not be interpreted to mean “single pull,”
and this Court should decline to adopt ATF’s interpretative revision of the statute. Yet, even if
this Court were to side with ATF’s “interpretation,” and conclude that “single function” instead
means “single pull,” bump stocks still would not be covered, because they operate through a
rapid series of trigger pulls, not a single pull.
In common parlance, “pull” means “to exert force upon” or “to use force in drawing,
dragging, or tugging.”9 It seems evident that a shooter must physically touch a trigger in
order to pull it. When using a bump stock, though, the shooter pulls the trigger once for each
and every shot that is fired. In fact, before starting a firing sequence using a bump stock, the
shooter’s finger is not touching the trigger.10 Rather, the shooter inserts his trigger finger
States, 312 Fed. Appx. 197, 200 (11th Cir. 2009). Additionally, the Supreme Court in Staples
appears to use the words “function” and “pull” interchangeably, at least in dicta (id. at 602-03),
but the issue was never briefed or argued in that case. Now, ATF proposes through regulation to
formally re-define the statutory term “single function” to mean “single pull.” Final Rule at
66554.
8
See, e.g., Exhibit 1 (noting that various submitted samples are not machineguns because
they perform “no automatic mechanical function....”). Of course, “mechanical” means “caused
by, resulting from, or relating to a process that involves a purely physical as opposed to a ...
biological ... process.” https://www.merriam-webster.com/ dictionary/mechanical (emphasis
added).
9
https://www.merriam-webster.com/dictionary/pull.
10
On October 28, 2017, ATF Acting Director Thomas Brandon sent an e-mail with a link
to a New York Times article, claiming that it contained a “great animation for understanding
bump stocks.” Exhibit 34. That animation clearly shows the shooter’s finger repeatedly
8
through the trigger guard, and places it on the bump stock’s finger rest. See Exhibit 34. The
shooter then applies (and maintains) an appropriate amount11 of forward pressure on the
firearm with his non-shooting hand, which causes the entire firearm to slide forward, bringing
the trigger finger into contact with the trigger, depressing the trigger, and firing a single
round. Compl. ¶ 36; Vasquez Decl. ¶ 11-12. Immediately thereafter, the recoil of the firearm
physically separates the trigger finger from the trigger, allowing the trigger to reset. Compl.
¶ 38; Vasquez Decl. ¶ 11. Thereafter, the constant forward pressure by the support hand again
pulls the firearm forward again, starting the process over. Id. The process is repeated, in rapid
succession — “bumping” the shooter’s finger onto and off of the trigger — until the shooter
stops applying the forward pressure with his support arm, or the ammunition runs out. Vasquez
Decl. ¶ 12. Importantly, after each time the rifle fires and recoils, the force of the recoil
overcomes the force of the forward pressure, causing the shooter’s finger to physically lose
contact with the trigger, which is what permits the trigger to “reset.” Vasquez Decl. ¶ 11.
The bump fire process is, quintessentially, semiautomatic fire, even if rapidly occurring.
Vasquez Decl. ¶ 13(c). Even ATF appears to agree that bump stocks do not function by a “single
pull” of the trigger. In fact, ATF notes that a bump stock “permit[s] the trigger to lose contact
with the finger and manually reset.” Final Rule at 66517 (emphasis added). How, then, is the
contacting and separating from the trigger during a cycle of bump firing.
https://www.nytimes.com/interactive/2017/10/04/us/bump-stock-las-vegas-gun.html; see also
https://slidefire.com/how-it-works/; see also http://www.slidefire.com/img/
how-it-works/rest-trigger-finger.jpg.
11
If the shooter applies too much forward pressure with the support hand, the recoil will
not separate the trigger and trigger finger, the trigger will not reset, and the firearm will not fire
again. If the shooter applies too little forward pressure with the support hand, the firearm will
reset but will not be pulled forward hard enough to fire again.
9
finger still engaged in a “single pull” of the trigger if it has “lost contact” with the trigger? ATF
admits that “multiple rounds [are] fired,” not when the shooter maintains pressure on the
trigger, but instead when the shooter maintains “constant rearward pressure on the device’s
extension ledge....” Final Rule at 66516 (emphasis added). In other words, ATF admits
(factually, buried in its analysis) that a sequence of bump fire involves multiple, separate trigger
pulls, yet concludes (legally, prominently in its introduction and conclusion) that bump fire
involves a “single pull of the trigger.”
At bottom, ATF’s “single pull” language does not help its case against bump fire stocks,
since bump fire is comprised not of a “single pull of the trigger,” but rather of a series of rapid,
individual “pulls” of the trigger — one for each round that is fired. In no sense can one be
described as “pulling” a trigger when he’s not even touching it.
B. Firearms Using Bump Stocks Do Not Fire “Automatically.”
In addition to the statutory requirement that a machinegun fire more than one round by a
“single function of the trigger,” the law also requires that it shoot “automatically.” Yet under
either the statutory language, or ATF’s new regulatory definition, a bump stock does not qualify.
In its noticed regulation, ATF noted that “[p]rior ATF rulings ... have not provided substantial
legal analysis regarding the meaning of the term ‘automatically’....” Final Rule at 66532. ATF
now has created a regulatory definition, yet bump stocks clearly do not even fall within the
definition the agency has created specifically to ban them.
1. Bump Fire Is Not an “Automatic” Process, but Instead Is Biologically

Generated and Controlled.
The word “automatic” commonly means “a device or process[] working by itself with
10
little or no direct human control.”12 The Supreme Court describes the automatic process in a
machinegun as “once its trigger is depressed, the weapon will automatically continue to fire until
its trigger is released or the ammunition is exhausted.” Staples at 603. Indeed, by applying a
one-time, continual squeeze of the trigger, a true machinegun will continue to fire, recoil, reset,
and fire again, until the trigger is released. So long as the trigger is depressed, that continual
operation is “automatic” — i.e., it does not require a continuous control, direction, intervention,
or guidance by a human being. Absolutely no forward pressure, rearward pressure — nothing
except a squeeze of the trigger — is needed or required to fire a machinegun automatically.
On the other hand, if a shooter attempts to shoot a rifle equipped with a bump stock, but
without applying forward pressure with the support hand, the rifle will fire but a single shot. As
ATF correctly notes, for a bump fire stock to function properly, the shooter must maintain
simultaneous “constant forward pressure” coupled “with constant rearward pressure” on the
firearm (much like the forces applied when shooting a bow and arrow).13 Final Rule at 66516. It
is only when the proper combination of these forces is applied that a bump stock equipped
firearm will rapidly “bump” the trigger onto and off of the trigger finger.
Again, without this critical element of human control, the rifle to which the bump stock
12
https://en.oxforddictionaries.com/definition/automatic.
13
What’s more, not only must a shooter apply opposing forces to the firearm, he must
apply a precise amount of force. ATF’s April 2, 2012 letter called this an “appropriate amount”
of force, ATF’s June 26, 2008 letter called it “intermediate pressure,” and ATF’s April 6, 2017
letter twice noted that it was critical that “sufficient forward pressure” be applied. In other
words, using a bump fire stock requires practice and skill to accomplish rapid, semiautomatic
bump fire. By way of contrast, firing a machinegun just requires a shooter to pull and hold the
trigger down. The entire purpose of the bump stock is to make a somewhat difficult technique
somewhat easier. Either way, the point is that nothing about the operation of a bump stock is
automatic, but rather use of a bump stock is a learned technique.
11
is attached would, at best, fire a single round (see Exhibit 23), or may even experience a
malfunction. It is only with human input and intervention — applying simultaneous opposing
forces — that the bump stock can achieve rapid semiautomatic fire. Vasquez Decl. ¶ 13(c). By
definition, something automatic requires little or no human involvement, yet a bump stock
requires a series of “continuous multiple inputs” by the shooter. See Exhibit 20.
2. A Bump Stock Does Not Contain any “Self-Acting or Self-Regulating

Mechanism.” In Fact, It Has No Internal Moving Parts at All.
ATF’s Final Rule purports to define “automatically” as “functioning as the result of a
self-acting or self-regulating mechanism that allows the firing of multiple rounds through a
single function of the trigger....” Final Rule at 66554 (emphasis added). A bump stock,
however, is neither self-acting nor self-regulating and, as explained above, requires exclusively
human control in order to function.14 As such, there is no “mechanism” within it at all.
Vasquez Decl. ¶ 28(f). A “mechanism is “an assembly of moving parts performing a complete
functional motion....”15 But a bump stock is nothing more than an injection molded piece of
plastic. As discussed, it is the shooter who “completes” the “functional motion” of bump fire —
providing forward pressure to counteract recoil’s rearward pressure. Black’s Law Dictionary
defines “mechanism” as “[c]omponents, elements, or parts, and the associated energy and
information flows enabling a machine, process, or system to achieve its intended result....”16
Again, as discussed, it is the shooter who provides forward pressure — the “energy” that
14
See https://newbostonpost.com/wp-content/uploads/2017/10/bump_stock-780x439.png
15
https://www.dictionary.com/browse/mechanism (emphasis added).
16
https://thelawdictionary.org/mechanism/ (emphasis added).
12
“enabl[es the bump fire process] to achieve its intended result.”
Thus, if there is any “mechanism” involved in bump firing with a bump fire stock, it is
biological, not mechanical. The “mechanism” that permits bump firing is human — a shooter
generating counter opposing forces, reacting to and utilizing the recoil energy of the firearm. As
ATF admits, numerous prior agency rulings in the past correctly recognized that bump stocks
“lacked any ‘automatically functioning mechanical parts or springs and perform[ed] no
mechanical function[s] when installed’....” Final Rule at 66518.
ATF admits that bump stocks operate “in conjunction with the shooter’s maintenance of
pressure....” Final Rule at 66516. Predecessor stock designs that operated “through a mechanism
like an internal spring” have been banned since 2006. Id. In other words, ATF admits that
certain prior stocks utilized a spring as the “mechanism” for rapid fire, but that modern bump
stocks use a human being as the “mechanism” for rapid fire. There is certainly no statutory
authority which permits ATF to regulate biological organisms or the physical forces they exert.17
Yet those are the indispensable ingredients in bump firing — a bump fire stock is useful, but not
necessary. ATF attempts to circumvent that reality by outlawing an accessory that is helpful in
performing a shooting technique. ATF’s admission that bump fire with a bump stock requires an
“appropriate amount” of force, “intermediate pressure,” and “sufficient forward pressure” are not
legal concepts. No statute or regulation is capable of defining how much is enough. These
concepts do not describe a “part” or “combination of parts” as defined in 26 U.S.C. § 5845. That
is because, again, bump fire does not occur because of a bump fire stock, but because of a human
17
Perhaps this is why some in the firearms community have jokingly called on ATF to
register body parts as machineguns. See https://www.facebook.com/militaryarms/
videos/1837117376300053/.
13
being — and indeed, as ATF admits, can occur entirely without a bump stock. Final Rule at
66551 (“individuals wishing to replicate the effects of the bump-stock-type devices could also
use rubber bands, belt loops,” etc.). Indeed, many gun owners can bump fire “from the hip”18 or
from the shoulder.19 They can bump fire rifles, pistols,20 and even shotguns — all without bump
stocks.21 Like any other type of bump firing of a semiautomatic weapon, a bump stock changes
absolutely nothing about the mechanical operation of the firearm.22
3. A Bump Stock Does Not Channel, Harness, Store, or Transmit

Energy.
In 2013, ATF correctly admitted that bump stocks “require[] continuous multiple inputs
by the user for each successive shot.” Exhibit 20. As recently as 2016, ATF noted in litigation
that “[b]ump firing requires the shooter to manually and simultaneously pull and push the
firearm in order for it to continue firing.” Brief for ATF in Support of Motion for Summary
Judgment and in Opposition to Plaintiffs Motion for Summary Judgment, ECF No. 28, at 21
(July 27, 2017). Now, in 2018, ATF suddenly has claimed that bump stocks operate “without
additional physical manipulation of the trigger by the shooter.” Final Rule at 66514. Both
statements cannot be true. What’s more, this is not simply a case of an agency reversing itself on
18
https://www.youtube.com/watch?v=U-nUA52BS3c.
19
https://www.youtube.com/watch?v=7RdAhTxyP64.
20
https://www.youtube.com/watch?v=8Zo5ju4EVLc.
21
https://www.youtube.com/watch?v=A6igdGbv7uE.
22
ATF personnel admit that “[t]he classification of [bump stocks] depends on whether
they mechanically alter the function of the firearm to fire fully automatic....”
https://www.nytimes.com/interactive/2017/10/04/us/bump-stock-las-vegas-gun.html. As
demonstrated herein, they do not. See Vasquez Decl. ¶ 13(c).
14
its interpretation of the law. Rather, ATF has reversed itself on the facts. No doubt
recognizing that no one reasonably could conclude that bump stocks operate as machineguns,
ATF finds it necessary to confuse and obfuscate the way bump stocks operate.
ATF now claims that a bump stock “channel[s]” and “harnesses and directs the firearm’s
recoil energy to slide the firearm back and forth so that the trigger automatically re-engages by
‘bumping’ the shooter’s stationary finger.” Final Rule at 66516. That statement is patently false
to the point of being absurd. The recoil of a firearm is a rearward action. How, then, is the
firearm driven back forward by a bump stock, which ATF has admitted has no springs,
hydraulics, batteries, or other mechanism to store or transmit energy? The answer is simple —
ATF’s statement is untrue.
Without biological input, the recoil of a shot would certainly drive the firearm “back”
into a bump stock, but it certainly would not slide the firearm “forth” again — the shooter does
that. That’s why a bump stock equipped firearm cannot be fired with one hand. Vasquez Decl.
¶ 13(d).
Bump stocks simply do not operate how ATF claims. Bump stocks “harness” nothing,
they are just a piece of plastic. They contain no springs, batteries,23 capacitors, generators, etc.
Without the shooter, the energy that causes the firearm to slide “back” into the bump stocks is
not harnessed, stored, or retransmitted — it is simply lost. It is the bump-firing shooter who
harnesses rearward energy and counteracts it with forward energy. It is the shooter’s body that
23
See Final Rule at 66518 n.4.
15
absorbs the recoil energy of the firearm, and counteracts that force with biological forces.24
ATF attempts to single out bump stocks from other forms of bump fire, claiming that
when bump firing without using a bump stock, “no device is present to capture and direct the
recoil energy; rather, the shooter must do so.” Final Rule at 66533. This statement is
misleading, to say the least, and intentionally dishonest at worst. ATF knows full well that all
forms of bump fire — with or without a bump stock — require the shooter to capture and direct
the recoil energy: the shooter’s arms absorb the recoil by acting as a human compression
spring (pushing forwards while pulling rearwards). Anyone who has ever fired a rifle with a
bump stock can feel this happening — they can feel their arms absorbing the recoil energy of the
firearm.
When bump firing, the recoil energy of a shot “compresses” or “loads” the human spring
rearward (causing the trigger finger to momentarily lose contact with the trigger), until the human
spring “rebounds” forward (causing the trigger finger to again contact the trigger). This is why a
bump stock is useful — but not at all necessary — for bump firing.
C. Bump Fire Is Not Automatic Fire Simply because It “Mimics” Automatic

Fire.
In its lengthy and internally contradictory Final Rule, ATF rightly admits that bump
stocks do no more than “allow[] ‘rapid fire’ operation of the semiautomatic firearm to which they
are affixed.” Final Rule at 66516. Later, ATF asserts that bump stocks “mimic automatic fire,”
24
In 2006, when the ATF reclassified the Akins Accelerator as a machinegun, it did so
because the stock utilized a spring to harness recoil energy. ATF Ruling 2006-2. A later ATF
letter on June 26, 2008 noted that a device — without such a spring — would not be a
machinegun, because it has no way to automatically harness the recoil energy, and thus no way
to fire automatically. See Exhibit 14. The current bump stocks at issue here have no springs.
16
apparently because they help a shooter fire rapidly, albeit semiautomatically. Id. (emphasis
added). In 2011, ATF described bump fire as a “vernacular expression” meaning “rapid trigger
manipulation to simulate automatic fire.” Exhibit 15 (emphasis added). Finally, just a few
months before the Las Vegas shooting, ATF maintained that “‘[b]ump firing’ is the process of
using the recoil of a semiautomatic firearm in rapid succession, simulating the effect of an
automatic firearm when performed with a high level of skill and precision by the shooter.”
Freedom Ordnance Mfg., Inc. v. Brandon, 3:16-cv-00243 (U.S.D.C. S.D.IN), ECF #28, p. 21.
However, in its Notice of Proposed Rulemaking, ATF rationalized that rapid
semiautomatic fire using bump stocks “present[s] the same risk to public safety that Congress has
already deemed unacceptable....” Id. at 21. Thus, the agency seemed to conclude that it must
ban bump stocks on behalf of Congress — because they are similar in effect to machineguns.
But Congress did not outlaw semiautomatic firearms with accessories that mimic automatic
fire — it outlawed unregistered machineguns. ATF is limited to the technical definition given
by Congress in the National Firearms Act; it is not authorized to legislate in order to give effect
to what it believes to be the intent of Congress to have been 84 years ago.
ATF conflates function and effect, concluding that because it supposedly quacks like a
duck, it must be a machinegun. See Vasquez Decl. ¶ 28(h). That is not legal reasoning based on
statutory language; rather it is the implementation of an agenda by political forces.
D. ATF’s Proposed Application of Its Regulation Is Nonsensical, Banning Bump

Stocks by Name, while Sanctioning Other Forms of Bump Fire.
Perhaps in an attempt to placate the shooting community, ATF explained that bump fire
can continue legally even if bump stocks are banned demonstrating that bump fire is a technique,
17
not a device. ATF alleges that, in order to continue bump firing without bump stocks, gun
owners “could also use rubber bands [or] belt loops ... this would be their alternative to using
bump-stock-type devices.” Final Rule at 66551. But it is simply incomprehensible how ATF
could claim that, under its new definition, bump fire using a plastic bump stock is illegal, while
bump fire using a rubber band would remain legal.25 ATF attempts to distinguish bump stocks
from belt loops, claiming that “bump-stock-type devices are objectively different from items
such as belt loops that are designed for a different primary purpose but can serve an incidental
function of assisting with bump firing.” Final Rule at 66533. Of course, that’s a distinction
without a difference — the statute outlaws “any combination of parts from which a machinegun
can be assembled if such parts are in the possession or under the control of a person.” 26 U.S.C.
§ 5845(b). If a person was bump firing using a belt loop, not only would he be “possessing”
machinegun parts under ATF’s new regulation — he would have actually converted his rifle into
an illegal machinegun. ATF demonstrates the absurdity of its position by trying to excise and
outlaw bump stocks while leaving rubber bands and belt loops unregulated.
As explained above, a bump stock has no “self-acting or self-regulating mechanism” that
“harness[es] the recoil energy of the semiautomatic firearm,” whereas it would be far easier to
argue that a rubber band fits this definition. Indeed, there is seemingly no difference between an
Akins Accelerator’s harnessing the compression of a spring (illegal, according to ATF), and
bump firing harnessing the elongation of a rubber band (legal, according to ATF). Indeed, ATF
25
For an example of bump firing a semiautomatic rifle using a rubber band, see
https://www.youtube.com/watch?v=PVfwFP_RwTQ.
18
actually claims that “the term ‘pull’ can be analogized to ‘push’....”26 And “ATF senior firearms
enforcement officer Max Kingery ... compared it [using a bump stock] to stretching a rubber
band.”27
Moreover, unlike with a bump stock where the trigger and finger are physically separated
after each shot, using a rubber band would mean that a shooter’s finger need never leave the
trigger during a course of fire — what ATF might call a “single pull of the trigger.”28 In other
words, a rubber band would fit far better within ATF’s proposed definition, arguably meeting
each of the elements that a bump stock fails. The fact that ATF would outlaw bump stocks while
sanctioning use of rubber bands further demonstrates the level to which the agency has gone to
bend over backwards to implement its marching orders.
E. The Noticed Regulation Could Be Used to Classify Semiautomatic Firearms

as Machineguns.
ATF’s new regulation raises a host of questions about its future application. For
example, if a bump stock is now suddenly a machinegun, that also makes it a firearm. Yet a
bump stock needs to be installed on a firearm in order to function. That would mean that a
person would need to have two “firearms” to make one gun? Or, what happens if a person puts a
bump stock on a registered NFA M16 — a rifle that actually fires automatically, multiple rounds
26
Final Rule at 66518 n.5. In its proposed rulemaking, ATF had gone even further,
arguing that “the term ‘pull’ is interchangeable with ... push.” NPRM at 10 n.6.
27
D. Freedman, “Machine-gun-like device part of ban,” CT Post, Jan. 31, 2013,
https://www.ctpost.com/local/article/Machine-gun-like-device-part-of-ban-4237269.php.
28
Lest ATF attempt to ban rubber bands, a rubber band would still not be a machinegun,
because it would not convert the mechanical operation of the firearm, and thus would still fire
only one shot “through a single function of the trigger.”
19
with a single function of the trigger? Has one rifle now become two machineguns requiring
separate registrations? Or is the status of the bump stock negated by the status of the M16?
Next, what happens to, say, an AR-15 rifle that for a decade has sported a bump stock,
pursuant to ATF’s blessing? ATF has claimed that bump stocks “convert an otherwise
semiautomatic firearm into a machinegun.” Final Rule at 66514. In other contexts, ATF has
taken the position that “once a machinegun, always a machinegun.”29 Would it be ATF’s
position in the future that every firearm in the United States that has ever housed a bump stock is
now forever an illegaly converted machinegun that must be destroyed or turned in?
Finally, is there any limiting principle that would keep ATF from using its new regulation
to target semiautomatic firearms as a class? According to ATF, a bump stock is a machinegun
because it argues it “function[s] as the result of a self-acting or self-regulating mechanism....”
Final Rule at 66554. Of course, a bump stock doesn’t do this, but a semi-automatic firearm
certainly does. Compl. ¶ 109. Also, ATF argues that a bump stock is a machinegun because it
allegedly “harness[es] recoil energy....” Final Rule at 66554. Again, a bump stock doesn’t do
this, but a semiauomatic firearm does. Compl. ¶ 113. In other words, semiautomatic firearms
themselves fit better than a bump stock under ATF’s new definition of a “machinegun.” What
assurance does anyone have that in two or six years, under a different administration, ATF won’t
seek to ban the most popular semiautomatic rifles in America, calling them machineguns?
F. Since the Noticed Regulation Is Clearly Contrary to an Unambiguous

Statute, No Deference Is Permitted. Even if It Were, ATF Has Provided No
Reasoned Explanation for Its Sudden About-Face.
29
See F.J. Vollmer Co. v. Magaw, 102 F.3d 591, 598 (D.C. Cir. 1996) (“we find no
reasonable basis for ... the Bureau’s ... once-a-machinegun-always-a-machinegun interpretation
of the Firearms Act.”).
20
As Plaintiffs have argued above, federal law is perfectly clear as to what constitutes a
machinegun. Defendants apparently agree, since they argue that there is a “plain meaning of [the
statute’s] terms,” and arguing that, “even if those terms are ambiguous, this rule rests on a
reasonable construction of them.”30 Final Rule at 66527 (emphasis added). In other words, ATF
apparently believes the statute is clear and, indeed, ATF’s regulations have always parroted the
statute. Now, however, the agency apparently has no choice but to act, in order to make
everything even clearer. So clear, in fact, that bump stocks allegedly are now clearly
machineguns, whereas a year ago they so clearly were not. ATF’s final rule is clear as mud.
The Supreme Court in Chevron USA, Inc. v. Natural Resources Defense Council, 467
U.S. 837 (1984), stated that “[i]f the intent of Congress is clear, that is the end of the matter; for
the court, as well as the agency, must give effect to the unambiguously expressed intent of
Congress.” Id. at 843-43. Until now, the ATF has flatly and consistently ruled that a bump stock
is not a machinegun and, when affixed to a semiautomatic firearm, does not make that firearm
fire automatically. In numerous classification letters, ATF has insisted that the statute
unambiguously allows the addition of a bump stock to a semiautomatic firearm — without
expressing any doubt, reservation, or making qualifications to its conclusion. Members of
Congress knew of these rulings, but Congress never acted to change them. Indeed, it was not
until well after the October 1, 2017 Las Vegas shooting that any ATF official ever said
otherwise. Now, in a sudden about-face, ATF has bowed to its political masters, “reinterpreting”
30
ATF claims that “[t]he Department believes that this rule’s interpretations of
‘automatically’ and ‘single function of the trigger’ in the statutory definition of ‘machinegun’
accord with the plain meaning of those terms.” Final Rule at 66527. Yet what ATF does not
allege is more telling than what it does. ATF never alleges that it’s conclusion that
“‘machinegun’ includes a bump-stock-type device” comports with the statute.
21
the statute to fit a political agenda. Yet capitulation to political pressure does not warrant the
kind of deference contemplated by the Chevron doctrine, especially when the agency itself has
admitted the statute is clear.
Moreover, Chevron does not sanction an agency when it exceeds its delegated powers.
By statute, Congress has clearly specified what elements make a firearm into a machinegun.
ATF is powerless to expand on that definition — particularly a scenario where classifying an
item as a machinegun results in it becoming contraband, and its owner subject to punishment as a
felon, and loss of his Second Amendment rights. As Justice Stevens by detailed and specific
language explained, the powers delegated to ATF are much more modest:
[A]n agency to which Congress has delegated policymaking responsibilities may,

within the limits of that delegation, properly rely on the incumbent
administration’s views of wise policy to inform its judgments. [Chevron at 865
(emphasis added).]
Simply put, while the President may work within the limits of a statute to achieve his political
goals, he may not unilaterally expand the definition of a statutory term any more than ATF may
do so. Yet that is precisely what has occurred here. Any argument by the government that the
statute is ambiguous would be a complete reversal of many decades of the agency’s position,
would be offered solely to trigger Chevron deference, and should be viewed with great suspicion
— and really should be rejected outright.
Here, ATF even finds it necessary to discredit its own prior rulings, claiming that its past
decisions “[b]etween 2008 and 2017 ... did not include extensive legal analysis” and “d[o] not
reflect the best interpretation of ‘machinegun’....” Final Rule at 66514. In other words, the
agency argues that for many years it has failed to properly do its job — until now, of course.
22
This Court should reject ATF’s invitation to disregard all its prior rulings as careless, nothing
more than an oversight. Indeed, if the agency to date has been careless, if not reckless, never
bothering to figure out what actually constitutes a machinegun, would that failure not jeopardize
prior criminal convictions based on the agency’s “expert” opinion as to which weapons constitute
machineguns? It should be extremely difficult for any court to accept and ratify ATF’s surprising
position that in the past it has acted recklessly and lawlessly.
Lacking any credible reason for its abrupt shift in “interpretation,” ATF has failed to
provide a sufficiently “reasoned explanation” for its extreme deviation from the language of the
statute, not to mention the position that it took repeatedly and consistently over a period of more
than a decade.
III. PLAINTIFFS WILL BE IRREPARABLY HARMED IF THE NOTICED

REGULATION IS ALLOWED TO TAKE EFFECT.
In this circuit, “[t]he probability of success that must be demonstrated is inversely
proportional to the amount of irreparable injury plaintiffs will suffer absent the stay.... This
relationship, however, is not without its limits; the movant is always required to demonstrate
more than the mere ‘possibility’ of success on the merits.” Michigan Coalition of Radioactive
Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153-154 (6th Cir. 1991) (citations omitted).
Based on the analysis set out above, Plaintiffs believe they have shown an exceedingly strong
likelihood of success on the merits of their APA claims, as ATF’s noticed regulation is clearly
contrary to an unambiguous statute, and thus Plaintiffs’ burden under this prong should be
minimal. Even so, Plaintiffs are at imminent risk of suffering significant harm if the noticed
regulation takes effect. See Verified Declarations with Complaint, Doc. 1, of Pratt, Van Cleave,
23
Watkins, Harmsen, and Malone.
ATF notes that “[t]his final rule requires the destruction of existing” bump stocks. Final
Rule 66549. As Plaintiffs alleged in their complaint, they “will be irreparably harmed if the
noticed regulation is permitted to take effect.” Compl. ¶ 16. Not only will they lose the
monetary value of their possessions (through forced surrender, confiscation, or destruction), but
also they will lose the use and enjoyment of those items, along with the ability to keep and bear
firearms equipped with bump stocks. Indeed, bump stocks are integral components to firearms,
and thus the Second Amendment right to keep and bear arms is implicated by their prohibition.
Finally, anyone who retains a bump stock past March 26, 2019, thinking he is protectedby
a copy of the ATF approval letter included with most bump stock shipments, will be at risk of
felony prosecution, even if unaware of this sudden change in regulation. Compl. ¶ 4. What’s
more, the harm to Plaintiffs is imminent — the noticed regulation goes into effect on March 26,
2019, which provides Plaintiffs and those like them with minimal time to decide what to do with
their bump stocks. Indeed, to avoid risk of inadvertently committing a felony, it is highly likely
that many bump stock owners will make the decision to destroy their property far in advance of
the effective date, an irreversible harm should this Court later decide that ATF has acted
unlawfully.
Presumably, ATF will not dispute that Plaintiffs meet the criteria for imminent and
irreparable harm. As ATF has explained, there will be significant economic costs from this
regulation, including: (i) the “lost value from no longer being able to possess or use the devices”
(Final Rule at 66546), which ATF estimates to number 520,000, valued at up to $102 million
(see Final Rule at 66547); (ii) the “value of foregone future sales over 10 years,” estimated at
24
$198.9 million (Final Rule at 66549); and (iii) the “disposal cost associated with the need to
destroy the devices” (Final Rule at 66546) which ATF estimates at $9.4 million (Final Rule at
66551). ATF also notes that “there will be a potential loss of wages from employees losing jobs
from loss of manufacturing,” but ATF does not attempt to estimate this cost, since it alleges “the
extent to which they will be unable find replacement jobs is speculative.” Final Rule at 66546
(emphasis added). It is not entirely clear how ATF’s numbers add up, but all told the agency
estimates that “the rule will have an annual effect on the economy of $100 million or more.”
Final Rule at 66543. A share of this total cost will be born by Plaintiffs, their members, and
supporters.
IV. THE BALANCE OF EQUITIES WEIGHS IN FAVOR OF PLAINTIFFS, AND

THE PUBLIC INTEREST SUPPORTS GRANTING INJUNCTIVE RELIEF.
A. ATF Has Disclaimed Public Safety as a Justification.
Typically, the government will claim that the balance of the equities favors the
government’s “compelling” interest in “public safety,” a phrase that repeated ad nauseam to
justify all sorts of intrusive governmental laws and regulations, especially those infringing the
right to keep and bear arms. But in this case, ATF has expressly disclaimed that rationale. In
fact, in response to comments arguing that bump stocks should be banned to protect public
safety, ATF replied that “[t]he Department disagrees that ATF seeks to regulate bump-stock-type
devices merely because they were, or have the potential to be, used in crime.” Final Rule at
66528. Rather, ATF claims that its regulation “is instead based only upon the functioning of the
device and the application of the relevant statutory definition.” Id. at 66529 (emphasis added).
Bump stocks have been legal to own for well over a decade. A preliminary injunction
25
would serve only to preserve that status quo as it has existed for years. Since ATF began its
process designed and intended to outlaw bump stocks, nearly one year has passed, and the sky
has not fallen. The agency certainly has not worked with all deliberate speed to enact the noticed
regulation, or claimed that any emergency necessitates speedy implementation (giving 90 days
for compliance with the regulation, three times the statutory minimum). ATF led gun owners on
for years, telling them it was perfectly lawful to own bump stocks — certainly the agency cannot
now reasonably object to a temporary injunction to preserve that status quo.
B. The Public Interest Will Be Served by the Issuance of an Injunction.
The interests at stake in this litigation begin with plaintiffs’ individual liberty and
property interests, but do not end there. The noticed regulation would directly and adversely
affect the liberty and property interests of hundreds of thousands of American citizens who, for
many years, have relied on long-standing ATF policy that bump stocks are legal to own, and that
they do not convert a semiautomatic firearm into an automatic one. That certainty and status quo
should be preserved until the courts are able to determine whether bump stocks are, as ATF
alleges, machineguns. Moreover, to the extent that a bump stock owner does not own a
replacement rifle stock, or cannot afford to obtain one, his rifle will be made far less useful and
more difficult to shoot, affecting his right to keep and bear arms and thus his ability to engage in
self-defense and other lawful purposes. Courts should be highly suspect of agency
“interpretations” that implicate enumerated constitutional rights in this way.
What’s more, while ATF does not appear to claim that public safety will be served by a
ban on bump stocks, it should be noted that in fact the opposite is true. As ATF admits,
semiautomatic bump fire is not (and cannot) be banned, and will continue through utilization of
26
rubber bands, belt loops, and skilled trigger fingers. As noted above, bump stocks do not create
bump fire, but rather, they permit controlled and therefore safe bump fire. In order to be safe at
the range, bump fire requires a large berm and careful attention to ensure that, as the muzzle rises
with rapid fire, rounds are not discharged over the backstop. Indeed, most shooting ranges
prohibit bump fire for this very reason.
ATF now has publicly endorsed bump firing from the hip, using a belt loop, or even a
rubber band — perhaps the least controllable methods of bump fire — yet it would ban bump
stocks which permit a shooter to fully grasp the weapon and fire from the shoulder — perhaps
the safest method of bump fire. Again, bump stocks do not change bump fire, they make it
safer. ATF’s arbitrary and capricious regulation, however, would essentially say “you can still
drive your car, you just can’t wear a seatbelt.”
Also at stake is the people’s interest in the proper exercise of the legislative powers
vested in Congress by Article I, Section 1 of the U.S. Constitution and the executive powers
vested in the President by Article II, Section 1. This challenge is predicated on a regulation
issued far in excess of statutory authority, and in violation of the Administrative Procedure Act,
and “the public interest is served when administrative agencies comply with their obligations
under the APA.” N. Mariana Islands v. United States, 686 F. Supp.2d 7, 21 (D.D.C. 2009).
Indeed, “[t]here is an overriding public interest ... in the general importance of an agency’s
faithful adherence to its statutory mandate.” Jacksonville Port Auth. v. Adams, 556 F.2d 52, 58-
59 (D.C. Cir. 1997).
Plaintiffs’ central challenge is that neither the President nor the ATF has the power to
change the statutory definition of a machinegun to include a bump stock device that the ATF
27
repeatedly ruled does not convert a semiautomatic firearm (clearly protected by the Second
Amendment) into an automatic one (the keeping and bearing of which has not been litigated
before the Supreme Court since District of Columbia v. Heller, 554 U.S. 570 (2008)) and
McDonald v. Chicago, 561 U.S. 742 (2010).
Finally, the grant of a preliminary injunction would best serve justice and the rule of law.
The nature of this case weighs heavily in favor of preserving the status quo until this Court
makes its final decision. There is no good reason to confront the law-abiding firearms
community with an unprecedented decision by the ATF — and the difficult personal choices that
necessary follow. This has allowed for the more dispassionate and reasoned judgment of an
Article III court, as to whether the familiar bump stock is to be banned as if it were a terrorist or
gangster’s weapon of choice — which it is not — rather than a law-abiding firearm enthusiast’s
accessory of choice — which it is.
CONCLUSION
With a sweep of the purportedly acting31 Attorney General’s pen, ATF has ordered the
destruction of hundreds of millions of dollars of lawfully owned property. ATF has refused to
permit a temporary amnesty period pursuant to Section 207(d) of the Gun Control Act of 1968,
whereby current bump stock owners would be permitted to register them under the NFA,
31
Plaintiffs use the word “purportedly” because there currently is much disagreement as
to whether Matthew Whitaker is legitimately the “acting” Attorney General of the United States
pursuant to 5 U.S.C. § 3345(a)(3), or whether Deputy Attorney General Rod Rosenstein holds the
authority pursuant to 28 U.S.C. § 508(a). See, e.g., Blumenthal v. Whitaker, 18-cv-02664,
U.S.D.C. for the District of Columbia; see also Michaels v. Sessions, No. 18-496 (pending in the
Supreme Court on petition for writ of certiorari). In this motion, Plaintiffs currently do not
contest the legitimacy of Mr. Whitaker’s assignment, yet this Court should be aware that this
ongoing legal dispute exists, should another court (or the Supreme Court) decide that Mr.
Whitaker is not a legitimate office holder, and thus that the noticed regulation is void on its face.
28
claiming that the machinegun ban in 18 U.S.C. § 922(o) overrides and makes “amnesty
registration of machineguns ... not legally permissible....” Final Rule at 66536.
At every turn, ATF plays the victim, claiming that its hands are tied. The agency simply
had no choice but to decide that bump stocks are machineguns. And the agency simply had no
choice than to order their destruction and confiscation, rather than permitting grandfathering.
In reality, though, it is not ATF that has taken this position. Rather, it is the Trump
Administration and the Department of Justice that has ordered ATF into this awkward and
uncomfortable position. In doing so, ATF’s own technical experts have been ignored and
overruled. Compl. ¶ 98. In fact, Plaintiffs believe that ATF’s own experts would testify that
bump stocks are not machineguns under current law, were they permitted to do so. Compl. ¶ 96.
This Court should reject ATF’s invitation to expand the reach of 26 U.S.C. § 5845.
Bump stocks are not machineguns, under either the statutory text or ATF’s regulatory expansion.
Plaintiffs respectfully request that this Court issue a preliminary injunction enjoining Defendants’
enforcement of the new regulation.
Robert J. Olson /s/ Kerry L. Morgan

William J. Olson Kerry L. Morgan* (P32645)
Jeremiah L. Morgan Pentiuk, Couvreur & Kobiljak, P.C.
Herbert W. Titus 2915 Biddle Avenue
William J. Olson, P.C. Edelson Building
370 Maple Avenue West, Suite 4 Suite 200
Vienna, VA 22180-5615 Wyandotte, MI 48192
703-356-5070 (telephone) 734-281-7100 (telephone)
703-356-5085 (fax) 734-281-2524 (fax)
wjo@mindspring.com (e-mail) kmorgan@pck-law.com (e-mail)
Of counsel *Counsel for Plaintiffs
Dated: December 26, 2018
29

SOUTHERN DIVISION
GUN OWNERS OF AMERICA, Inc.

et al.
Plaintiffs, Case No. 1:18-cv-01429-PLM-RSK

Hon. Paul L. Maloney
v. United States District Judge
MATTHEW WHITAKER,
et al.
Defendants.
BRIEF IN OPPOSITION TO PLAINTIFFS’

MOTION FOR PRELIMINARY INJUNCTION
The Department of Justice (“DOJ”) issued the Final Rule at issue in this case, Bump-Stock-Type
Devices, 83 Fed. Reg. (“FR”) 66514 (Dec. 26, 2018) (“Final Rule”), to ensure that “bump stocks”—
firearms attachments that, when employed, permit ordinary semi-automatic rifles to function as
machineguns—are not used to circumvent 18 U.S.C. § 922(o), the statute prohibiting the sale of new
machineguns to the public. By acting on a presidential instruction to adopt this Final Rule, DOJ has
corrected a confusing and erroneous agency interpretation of Section 922(o), to the expected benefit
of public safety. Plaintiff seeks a preliminary injunction to keep the rule from going into effect,
claiming that DOJ’s actions are arbitrary and capricious under the Administrative Procedure Act
(“APA”) and that DOJ’s interpretation “contradict[s] the clear terms of an unambiguous statute.”
Because they cannot demonstrate a likelihood of success on these claims or prevail on the other
factors required for a preliminary injunction, Plaintiffs’ motion should be denied.
INTRODUCTION
A bump stock is an apparatus used to replace the standard stock on an ordinary semi-
automatic firearm, thereby allowing a shooter to use the weapon at a rate of fire similar to that of an
automatic weapon, like a machinegun. See 83 FR 66514. Over the last decade, DOJ’s Bureau of
Alcohol, Tobacco, Firearms, and Explosives (“ATF”) has issued classification determinations
concluding that certain models of these devices are lawful firearms parts, unregulated at the federal
level. Subsequently, many bump stocks have been readily available for private purchase, and hundreds
of thousands have been sold. On October 1, 2017, several rifles with attached bump stocks were used
to commit a deadly attack on concertgoers in Las Vegas, Nevada, in which hundreds of rounds of
ammunition were rapidly fired by the perpetrator at a large crowd, killing 58 people and wounding
approximately 500.
Machineguns have long been regulated under the National Firearms Act of 1934 (“NFA”), and
since passage of the Firearm Owners Protection Act of 1986 (“FOPA”), the sale of new machineguns
to members of the public has been prohibited. ATF has worked diligently to apply the definition of
machinegun consistently to bump stocks. In 2006, ATF concluded that one model of bump stock, the
“Akins Accelerator,” was not a machinegun, then quickly recognized that its determination was in
error and reversed itself. Since 2008, ATF has concluded that some other bump stocks—which lacked
a mechanical spring (or similar device) instrumental to the operation of the Akins Accelerator—were
not machineguns. These decisions included one classification of a device submitted by the same
manufacturer as the bump stocks used by the Las Vegas perpetrator.
After the Las Vegas shooting, members of Congress and the public asked ATF to re-
examine its past classification decisions for bump stocks to determine whether those decisions had
been correct. In addition, President Trump instructed the Attorney General “to dedicate all available
resources to…propose for notice and comment a rule banning all devices that turn legal weapons into
machineguns.” Presidential Memorandum, Application of the Definition of Machinegun . . ., 83 FR 7949
(Feb. 20, 2018) (“Presidential Memorandum”). DOJ proceeded to issue a notice of proposed
rulemaking (“NPRM”), collect and review over 186,000 comments, and ultimately, to announce the
2
Final Rule, which amends the definition of “machinegun” in DOJ’s regulations. 1
The Department’s actions are fully consistent with the text of the statute and the APA. The
statutory terms interpreted in the Final Rule (“automatically” and “single function of the trigger”) are
undefined in the statute, and the Department has reasonably interpreted those terms, applied those
definitions to bump stocks, and corrected past classification errors in light of those new definitions, as
an agency is entitled to do. The Final Rule is therefore within DOJ’s rulemaking authority and the
contents of the rule are neither arbitrary nor capricious. The Department’s interpretation is also a
reasonable application of the text of the statute: once definitions of the undefined terms in the
statutory definition have been provided, the statute is reasonably interpreted to include bump stocks as
machineguns. For these reasons, and because Plaintiffs have also not established that the other factors
required for entry of a preliminary injunction have been met, no injunction should issue.
STATUTORY AND REGULATORY BACKGROUND
A. Statutory Framework
Over the last century, Congress has imposed increasingly strict regulations on machineguns as
part of the interconnected framework of federal laws regulating the interstate firearm market,
including the Gun Control Act of 1968 (“GCA”), 18 U.S.C. Chapter 44; the NFA; and the FOPA.
Together, these statutes generally prohibit the possession by members of the public of machineguns
manufactured after the effective date of the FOPA. See 18 U.S.C. § 922(o). These statutes share a
common definition of machinegun, and this case challenges DOJ’s interpretation of terms within that
definition and clarification that the definition includes bump stocks. 2
1
In this brief, except in direct quotations, Defendants will use the single-word spelling used in federal
law, “machinegun,” rather than the two word version more commonly used in ordinary writing,
“machine gun.” See 26 U.S.C. § 5845(b); 27 CFR 447.11.
2
The Final Rule amends the regulations of ATF, which is charged with the administration and
enforcement of the GCA and the NFA. The Final Rule was promulgated by the Attorney General and
DOJ, who are responsible for overseeing ATF. See 28 C.F.R. § 0.130(a)(1). NFA provisions still refer
3
The NFA, the first major federal statute to regulate firearms, required all persons engaged in
the business of selling “firearms” (including machineguns) 3 and all firearms owners to register with the
government, and subjected the making and sale of regulated firearms to a series of application and
authorization requirements. 4 See 26 U.S.C. Ch. 53. The NFA targeted “lethal weapons . . . [that] could
be used readily and efficiently by criminals.” H.R. Rep. No. 83-1337, at A395, reprinted in 1954
U.S.C.C.A.N. 4017, 4542. Under the NFA, a “machinegun” is defined as:
any weapon which shoots, is designed to shoot, or can be readily restored to shoot,
automatically more than one shot, without manual reloading, by a single function of
the trigger . . . [including] any part designed and intended solely and exclusively . . . for
use in converting a weapon into a machinegun.
26 U.S.C. § 5845(b).
In 1968, Congress passed the GCA, intended to “regulate more effectively interstate
commerce in firearms” to reduce crime and misuse, “assist the States and their political subdivisions to
enforce their firearms control laws,” and “help combat . . . the incidence of serious crime.” See 18
U.S.C. § 921 et seq.; S. Rep. No. 89-1866, at 1 (1966). The GCA supplanted some prior firearms
regulations, but exists alongside the NFA. See Pub. L. No. 785, 52 Stat. 1250 (1938) (repealed 1968).
The GCA followed on the heels of other federal legislation that stressed Congress’s findings of an
extensive interstate commerce in firearms and the need for adequate federal control over such traffic.
to the “Secretary of the Treasury,” 26 U.S.C. Ch. 53, however. Pub. L. 107-296, 116 Stat. 2135 (2002),
transferred the functions of ATF to DOJ, under the general authority of the Attorney General. 26
U.S.C. § 7801(a)(2); 28 U.S.C. § 599A(c)(1).
3
Although the NFA applies to “firearms,” the term “firearms” is defined in the statute as a narrow set
of dangerous weapons, (e.g., machine guns, short-barreled shotguns, short-barreled rifles, and several
items that would not ordinarily be considered “firearms,” such as silencers, rockets, and grenades), not
the full class of weapons labeled as “firearms” in ordinary parlance. See 26 U.S.C. § 5845.
4
Congress passed the NFA pursuant to its taxation powers, and the NFA is codified in the Internal
Revenue Code. Chapter 53 specifies that each maker of a regulated firearm “shall, prior to . . . making
[it] . . . obtain authorization,” 26 U.S.C. § 5841(c), including by: (1) fil[ing] “a written application . . . to
make and register the firearm”; (2) paying “any tax payable”; and (3) receiving approval from ATF. 26
U.S.C. § 5822.
4
See Pub. L. No. 90-351, 82 Stat. 197 (1968).
In 1986, Congress again turned its attention to firearms, examining, inter alia, the hazards of
machineguns and the desirability of their control. See H.R. Rep. No. 99-495, at 2, 7 (1986), reprinted
in 1986 U.S.C.C.A.N. 1327-33 (describing proposed machinegun restrictions as “benefits for law
enforcement” and citing “the need for more effective protection of law enforcement officers from
the proliferation of machineguns”); id. at 4 (describing machineguns as “used by racketeers and drug
traffickers for intimidation, murder and protection of drugs and the proceeds of crime”); 132 Cong.
Rec. 9,602 (1986) (statement of Sen. Kennedy) (“The only thing that has changed about the
machinegun situation since the 1968 act . . . is that machineguns have become a far more serious law
enforcement problem.”). Congress therefore enacted the FOPA, intended “to strengthen the
[GCA] to enhance the ability of law enforcement to fight violent crime and narcotics trafficking.”
H. R. Rep. No. 99-495, at 1, 1986 U.S.C.C.A.N. 1327. Among its provisions, FOPA added 18
U.S.C. § 922(o) to the GCA. Section 922(o)(1) makes it “unlawful for any person to transfer or
possess a machinegun,” subject to the following exceptions:
(A) a transfer to or by, or possession by or under the authority of, the United States
or any department or agency thereof or a State, or a department, agency, or political
subdivision thereof; or
(B) any lawful transfer or lawful possession of a machinegun that was lawfully
possessed before the date this subsection takes effect.
Id. § 922(o)(2). The FOPA and GCA incorporate the NFA’s definition of “machinegun.” See 18
U.S.C. § 921(a)(23). 5
5
The legislative history of the specific amendment that added § 922(o) is limited. Because “§ 922(o)
is closely intertwined with other federal gun legislation,” however, the Courts of Appeals “have
referred to legislative history not only of § 922(o) itself, but also of other federal gun legislation
generally,” finding that Congress need not “rearticulate its old findings every time it adds an
additional provision.” United States v. Haney, 264 F.3d 1161, 1169 n.3 (10th Cir. 2001); see generally
David Hardy, FOPA: A Historical and Legal Perspective, 17 Cumb. L. Rev. 585, 589-605 (1987).
5
B. Regulatory Interpretation of Machinegun Definition in Firearms Statutes
The Final Rule arises in part from the fact that Congress did not define the NFA terms
“automatically” and “single function of the trigger.” DOJ is interpreting those terms in the context of
bump stocks, pursuant to delegated authority to promulgate regulations necessary to enforce the GCA
and NFA. See 18 U.S.C. 926(a); 26 U.S.C. 7801(a)(2)(A), 7805(a); 28 CFR 0.130(a)(1)-(2). Courts have
recognized the leading regulatory role of DOJ and ATF with respect to machineguns, including in the
context of interpreting the definition of “machinegun” and component terms such as “automatically.”
See United States v. Dodson, 519 F. App’x 344, 348-49 & n.4 (6th Cir. 2013) (acknowledging ATF’s role
in interpreting the NFA definition of “machinegun”); F.J. Vollmer Co. v. Higgins, 23 F.3d 448, 449-51
(D.C. Cir. 1994) (upholding ATF classification regarding machinegun receivers); York v. Sec’y of
Treasury, 774 F.2d 417 (10th Cir. 1985).
1. Past Regulation of Bump Stocks
In 2002 and 2004, a Florida inventor asked ATF whether the Akins Accelerator, a specific
model of a bump stock that “cradles a semiautomatic rifle and uses an internal spring and the force of
recoil to reposition and refire the rifle,” would be classified as a machinegun under the NFA. Akins v.
United States, 312 F. App’x 197, 198 (11th Cir. 2009). ATF tested a prototype of the device and, based
on its interpretation of the statutory term “single function of the trigger” to refer to a single
movement of the trigger, concluded it did not constitute a machinegun. Id. After receiving further
requests to classify similar devices, ATF reversed its view, assessing that the phrase “single function
of the trigger” is best interpreted as a “single pull of the trigger” by the shooter’s finger, not a single
trigger motion. ATF Ruling 2006-2, at 2 (citing NFA: Hearings Before the Comm. on Ways and Means,
House of Representatives, Second Session on H.R. 9066, 73rd Cong., at 40 (1934)) (“NFA Hearings”),
available at: https://go.usa.gov/xEDCC (last visited Feb. 9, 2019). ATF therefore ordered the
inventor “to register the devices he possessed or to surrender them,” Akins, 312 F. App’x 199, and
6
issued a policy statement concluding that “devices attached to semiautomatic firearms that use an
internal spring to harness the force of the recoil so that the firearm shoots more than one shot with
a single pull of the trigger are machineguns.” 83 FR 66516. The inventor sued, and ATF prevailed.
Akins, 312 F. App’x at 198.
In a series of classification decisions between 2008 and 2017, ATF concluded that such devices
were not machineguns. Although ATF assessed these devices to act with a “single pull of the trigger,”
the bump stocks did not fire “automatically” because they lacked internal springs or other mechanical
parts that channeled recoil energy. 83 FR 66517. A consequence of this conclusion is that bump
stocks fell outside the scope of federal firearms regulations, see id., and became popular with those
seeking lawful substitutes for the high rate of fire provided by machineguns. An estimated 520,000
bump stocks were sold at an average price of approximately $300, many to individuals who, like
Plaintiffs, “relied on” the past ATF determinations “that bump stocks are legal to own, and that they
do not convert a semi-automatic firearm into an automatic one.” Mot. at 26; see 83 FR 66538.
2. Development of the Final Rule
The public attention given to bump stocks in the wake of their use by the Las Vegas
perpetrator led DOJ to revisit its prior analysis of the terms used to define machinegun in 26 U.S.C.
5845(b), along with whether bump stocks properly should be classified as machineguns. See 83 FR
66516-17. As an initial step, ATF published an advance notice of proposed rulemaking (“ANPRM”)
in the Federal Register. See Application of the Definition of Machinegun to “Bump Fire” Stocks and Other
Similar Devices, 82 FR 60929 (Dec. 26, 2017). The ANPRM solicited comments concerning the market
for bump stocks, including information about the number and cost of bump stocks made and sold.
See id. at 60930-31.
On February 20, 2018, the President issued a memorandum to the Attorney General
concerning “bump fire” stocks and similar devices. See Presidential Memorandum, 83 FR 7949. The
7
memorandum instructed DOJ, working within established legal protocols, “to dedicate all available
resources to complete the review of the comments received [in response to the ANPRM], and, as
expeditiously as possible, to propose for notice and comment a rule banning all devices that turn
legal weapons into machineguns.” Id. Carrying out that directive, DOJ published an NPRM
proposing changes to the regulations in 27 C.F.R. §§ 447.11, 478.11, and 479.11 that would interpret
the meaning of the terms “single function of the trigger” and “automatically.” See 83 FR 13442 (Mar.
29, 2018). DOJ received over 186,000 comments on the NPRM, reviewed those comments, and
drafted the Final Rule, addressing the comments raised. See generally 83 FR 66519-43. On December
18, 2018, DOJ announced the Final Rule, which was published in the Federal Register on December
26, 2018. See id.; DOJ Announces Bump-Stock-Type Devices Final Rule (Dec. 18, 2018), available at:
https://go.usa.gov/xEDrx (last visited Jan. 29, 2019).
3. The Final Rule
The Final Rule sets forth DOJ’s interpretations of the terms “single function of the trigger”
and “automatically,” clarifies for members of the public that bump stocks are machineguns, and
overrules ATF’s prior, erroneous classification decisions treating bump stocks as unregulated firearms
parts. See 83 FR 66516; 66531 (explaining that “the previous classification[s] . . . relied on the mistaken
premise that . . . such devices do not enable ‘automatic’ firing”). The Final Rule also instructs “current
possessors” of bump stocks “to undertake destruction of the devices” or to “abandon [them] at the
nearest ATF office.” Id. at 66549. Current owners of bump stocks have 90 days to comply in order to
“avoid criminal liability.” 6 Id. at 66530.
The analysis in the Final Rule mirrors that in the NPRM. First, consistent with ATF’s position
since 2006, the Final Rule explains that the Department is interpreting the phrase “single function of
6
This 90 day period began upon publication in the Federal Register on December 26, 2018.
8
the trigger” to mean a “single pull of the trigger” as well as “analogous motions.” Id. at 66515. In
addition, to account for the manner in which firing is initiated by a single pull of the trigger, the Final
Rule explains that it is clarifying the term “automatically.” Id. Under the interpretation set forth in the
Final Rule, “automatically,” in the context of the statutory definition of machinegun, means “as the
result of a self-acting or self-regulating mechanism that allows the firing of multiple rounds through a
single pull of the trigger.” Id. at 66554. The Final Rule explains that these definitions are being
adopted because they “represent the best interpretation of the statute.” Id. at 66521.
Relying on these definitions, the Final Rule sets forth the conclusion that “[t]he term
‘machinegun’ includes a [bump stock].” Id. at 66554. As the Final Rule explains, this clarification is
needed because the firing sequence is “automatic.” Id. at 66531. This conclusion is based on the
determination that, as long as: 1) the trigger finger remains stationary on the ledge provided by the
design of the device; 2) the shooter maintains constant rearward pressure on the trigger; and 3) the
shooter constantly pushes forward with the non-trigger hand on the rifle through the barrel-shroud or
fore-grip; then, the firearm’s recoil energy is harnessed in a continuous back-and-forth cycle. Id. at
66532. In this way, a bump stock constitutes a “self-regulating” or “self-acting” mechanism that
allows the shooter to attain continuous firing after a single pull of the trigger. Id. Thus, bump stocks
are machineguns because they convert an otherwise ordinary semiautomatic firearm 7 into a
machinegun by acting as a self-regulating mechanism that, after a single pull of the trigger, harnesses
the recoil energy of the semiautomatic firearm in a manner that allows the trigger to reset and continue
7
“The term ‘semiautomatic rifle’ means any repeating rifle which utilizes a portion of the energy of a
firing cartridge to extract the fired cartridge case and chamber the next round, and which requires a
separate pull of the trigger to fire each cartridge.” 18 U.S.C. § 921(a) (28). The term “semi-automatic
firearm,” is not specifically defined in federal law, but generally refers to any weapon that after a round
of ammunition is fired, chambers the next round of ammunition and can then be fired with a separate
pull of the trigger. See, e.g., N.Y. Penal Law § 265.00(21) (McKinney 2018) (“‘Semiautomatic’ means any
repeating rifle, shotgun or pistol . . . which utilizes a portion of the energy of a firing cartridge or shell to
extract the fired [round] . . . and chamber the next round, and… requires a separate pull of the trigger to
fire each cartridge or shell”).
9
firing without additional physical manipulation of the trigger by the shooter, so long as the shooter
also maintains constant rearward pressure on the trigger and constant forward pressure with the non-
trigger hand on the rifle through the barrel-shroud or fore-grip. See id. at 66514, 66516.
In addition to setting forth the analysis above, the Final Rule describes and provides responses
to the 186,000+ comments received on the NPRM. See 83 FR at 66519-43. This includes responses
to Plaintiffs’ comments, compare Regulations.gov, Comment ID ATF-2018-0002-18178, available at:
https://www.regulations.gov/document?D=ATF-2018-0002-18178 with 83 FR 66526-27, 66531-32,
66534. See id. Plaintiffs do not allege that the Final Rule fails to respond to their comments.
STANDARD OF REVIEW
“Preliminary injunctions are extraordinary and drastic remedies never awarded as of right.”
O’Toole v. O’Connor, 802 F.3d 783, 788 (6th Cir. 2015). “[T]hat is why the plaintiff bears the burden
to justify relief, even in . . . cases” involving core individual rights, such as the First Amendment or
the Second Amendment. O’Toole, 802 F.3d at 788. Meeting this burden requires “a clear showing
that the plaintiff is entitled to such relief.” Southern Glazers Distributors of Ohio v. Great Lakes Brewing,
860 F.3d 844, 848-49 (6th Cir. 2017) (quoting Winter v. NRDC, 555 U.S. 7, 24 (2008)).
“[A] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on
the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in the public interest.” Winter, 555 U.S.
at 20, 24. The Sixth Circuit has stated that these “[f]our factors guide the decision to grant a
preliminary injunction,” and the Supreme Court has further explained that a plaintiff cannot prevail
without some showing on each of those factors. See id. at 23-24, 31-32 (holding that “proper
consideration of” balance of equities and public interest “alone requires denial of the requested
injunctive relief” and thus finding no need to address likelihood of success). 8
8
Although the Sixth Circuit has in the past “often cautioned that these are factors to be balanced, not
10
ARGUMENT
I. Plaintiffs Have Not Established a Likelihood of Success on Their Claims.
Because a preliminary injunction is an extraordinary and drastic remedy, the party seeking
such relief must show “clear authority” in favor of success. Aristotle Publishing v. Brown, 61 F. App’x
186, 188 (6th Cir. 2003). This requires Plaintiffs to make a “strong” or “substantial” showing, not
just to demonstrate that they have an equal likelihood of success or failure on their claims. See
Southwest Williamson County Community Ass’n, Inc. v. Slater, 243 F.3d 270, 277 (6th Cir. 2001) (“strong
likelihood of success” required); Rock & Roll Hall of Fame & Museum, Inc. v. Gentile Prod., 134 F.3d
749, 756 (6th Cir. 1997) (reversing grant of preliminary injunction because the court “abused its
discretion when it concluded that the [movant] had shown a strong likelihood” of success).
To succeed in their claims challenging the substance of the Final Rule, Plaintiffs must
demonstrate that DOJ’s interpretations are “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A), and Plaintiffs will not be able to meet
this standard. “The arbitrary and capricious standard is the least demanding form of judicial review
of administrative action.” Watson v. Solis, 693 F.3d 620, 623 (6th Cir. 2012). The “scope of review
under the ‘arbitrary and capricious’ standard is narrow and a court is not to substitute its judgment
for that of the agency.” Davidson v. Dep’t of Energy, 838 F.2d 850, 855 (6th Cir. 1988). So long as the
agency “examine[d] the relevant data and articulated a satisfactory explanation for its action,” a
Court will not set aside its decision. Id.
This is particularly true where the question at bar is the analysis of a scientific or mechanical
prerequisites to be met,” Great Lakes Brewing, 860 F.3d 849, Great Lakes casts doubt on the continued
viability of this approach after Winter. See id. (recognizing that “[a] preliminary injunction issued where
there is simply no likelihood of success on the merits must be reversed”); cf. Singh v. Carter, 185 F.
Supp. 3d 11, 16 (D.D.C. 2016) (explaining that the continued viability of the D.C. Circuit’s “sliding
scale” approach to preliminary injunctions is highly doubtful in the wake of Winter). Regardless of
which approach is followed, preliminary injunctive relief is inappropriate here.
11
device, like the bump stock here, because of an agency’s presumed knowledge regarding “scientific
determinations . . . in an area within the agency’s expertise.” Kentucky Resources Council v. EPA, 467
F.3d 986, 991 (6th Cir. 2006); see United States v. One TRW, Model M14, 7.62 Caliber Rifle, 294 F. Supp.
2d 896, 900 (E.D. Ky. 2003) (review of ATF firearms classifications “under an arbitrary and
capricious or similar standard” is based on agency’s “consistency, formality, and relative
expertness”). Although Plaintiffs identify a hodgepodge of statements in the Final Rule with which
they disagree, they have not established that any part of the Final Rule lacks a satisfactory
explanation, is unreasonable, or is otherwise arbitrary and capricious. Accordingly, Plaintiffs cannot
establish a substantial likelihood of success on their claims.
A. The Bump Stock Rule Is Reasonable In Light of Congress’s Purpose in Limiting the
Availability of Privately-Owned Machineguns.
Far from having “relied on factors which Congress has not intended it to consider,” Mot. at
4, the central premise of the Final Rule comes directly from Congress’s mandate that dangerous,
automatic weapons that readily produce high effective rates of fire should not be unregulated.
Congress concluded at the time it adopted the NFA that “there is no reason why anyone except a
law officer should have a machinegun.” H.R. Rep. No. 73-1780, at 1 (1934); see also S. Rep. No. 82-
1495, at 1-2 (1952) (explaining that the NFA had as its “principal purpose . . . to control the traffic
in machineguns and sawed-off shotguns, the type of firearms commonly used by the gangster
element”). Thus, “although the [NFA] is ostensibly a revenue-generating statute enacted under
Congress’s taxation power, it is clearly designed to regulate the manufacture, transfer, and
possession of dangerous weapons . . . close analysis of the relevant provisions reveals an
unmistakable intent to prohibit possession of any machinegun the manufacture or importation of
which was not explicitly authorized by [ATF]”). United States v. Newman, 134 F.3d 373 (6th Cir. Jan.
21, 1998) (unpublished).
Congress held the same view at the time of enactment of the GCA. See United States v.
12
Jennings, 195 F.3d 795, 799 n.4 (5th Cir. 1999) (noting Congress’s “specific declaration and finding
that . . . machineguns . . . are primarily weapons of war” (quoting S. Rep. No. 90-1501, at 28
(1968))). And in adopting the FOPA, Congress continued to pay heed to the fact that law
enforcement officers required “more effective protection . . . from the proliferation of
machineguns.” H.R. Rep. No. 99-495, at 2, 7 (1986), reprinted in 1986 U.S.C.C.A.N. 1327-33. 9
Congress repeatedly singled out machineguns for special regulatory treatment because “[m]achine
guns are more dangerous in their likely effects” than other firearms: “[t]hey not only fire very
quickly, but they are harder to shoot in a discriminating way, at least in their fully automatic mode.”
Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense, 56 UCLA L. Rev. 1443,
1482 (2009).
The compatibility of the Final Rule with congressional purpose was stressed by many of the
thousands of supportive comments to the NPRM, which explained that bump stocks enable
shooters to fire semi-automatic weapons automatically, achieving the same high effective rates of
fire that Congress sought to control in banning machineguns. See 83 FR 66521 (“commenters
opined that the regulation . . . will have the same dramatic benefit originally intended by” the NFA
and GCA). Many of the commenters emphasized that the “devices cause a decrease in shooter
accuracy,” and “that because the devices enabled rapid but inaccurate fire, they pose[d] a particular
risk to large-scale public events, such as the Las Vegas concert.” 83 FR 66520; see 18 U.S.C. §
922(o); United States v. Brock, 724 F.3d 817, 824 (7th Cir. 2013) (“Congress has grouped together
sawed-off shotguns, machineguns, and a variety of dangerous explosive devices for stringent
restrictions on possession and strict registration requirements for those that can be possessed
9
At the time, machineguns were being increasingly “used by racketeers and drug traffickers for
intimidation, murder and protection of drugs and the proceeds of crime.” H.R. Rep. No. 99-495 at
4, 1986 U.S.C.C.A.N. at 1330. The strictures of the NFA and GCA had proven inadequate to
protect the public from these weapons.
13
lawfully”). As these comments observe, if bump stocks continue to be misclassified as unregulated
items, the result would be to undercut Congress’s regulation of machineguns and other dangerous
weapons. See id. at 66520-21. 10
To be sure, Congress’s purpose would be “irrelevant to the interpretation” of the statute if
the statutory text clearly excluded bump stocks. Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 808–09
n. 3 (1989); see U.S. v. Callahan, 801 F.3d 606, 618 (6th Cir. 2015) (“reference to legislative history is
inappropriate when the text of the statute is unambiguous”); A. Raymond Randolph, Dictionaries,
Plain Meaning, and Context in Statutory Interpretation, 17 Harv. J.L. & Pub. Pol’y 71 (1993). However,
the Final Rule makes clear that this is not what the agency has done: the terms “automatically” and
“single function of the trigger” contained in the definition of “machinegun” in the NFA are
undefined, and the best interpretation of these terms includes bump stocks, because they serve as a
self-acting mechanism that harnesses recoil energy to allow the trigger of a firearm to reset and
continue firing without additional physical manipulation of the trigger by the shooter, so long as the
shooter maintains continued rearward pressure on the trigger and forward pressure on the barrel
shroud or forestock. See 83 FR 66532. Plaintiffs’ arguments fail to demonstrate otherwise.
B. The Final Rule Interprets “Single Function of the Trigger” and “Automatically” in a
Manner Consistent With Their Ordinary, Accepted Meaning.
1. A “Single Function” of the Trigger is Reasonably Interpreted As a “Single Pull” of

the Trigger.
The Final Rule interprets the phrase “single function of the trigger” to mean “a single pull of
the trigger,” along with “analogous motions,” explaining that this “is the best interpretation of the
10
Plaintiffs take issue with the statement in the Final Rule that bump stocks “accelerate the firearm’s
cyclic firing rate to mimic automatic fire,” 83 FR 66516, supposing that this means that the agency
“conclude[d] that it must ban bump stocks on behalf of Congress . . . because they are similar in
effect to machineguns.” See Mot. at 16-17. As the Final Rule explains, however, the fact that bump
stocks assist shooters in firing faster is not the basis for the Final Rule nor the reason bump stocks
are machineguns. See 83 FR 66533-34. Rather, this explanation is provided in the Final Rule to
emphasize that the Final Rule is consistent with Congress’s intent.
14
statute” and “reflect[s] ATF’s position since 2006.” 83 FR 66518. “Pull the trigger” is the ordinary,
accepted terminology for how to discharge the typical firearm in common use today, as well as in the
era when the NFA was enacted. See, e.g., Webster’s New World Dictionary 1177 (3d ed. 1988)
(defining “Russian roulette” as involving “aim[ing] a gun . . . and pull[ing] the trigger”); Dwight
Eisenhower, Address to the American Society of Newspaper Editors (Apr. 17, 1958), in Public Papers of the
Presidents (1958) (“It is far more important to be able to hit the target than it is to haggle over who
makes a weapon or who pulls a trigger”). And this phrase has made it into common parlance as an
idiom meaning “to make a final decision.” See Idioms, The Free Dictionary, “pull the trigger,” available
at: https://idioms.thefreedictionary.com/pull+the+trigger (last visited Jan. 29, 2018). Recognizing the
ubiquity of this usage, the Supreme Court has described a machinegun within the NFA’s definition as
one that “fires repeatedly with a single pull of the trigger.” Staples v. United States, 511 U.S. 600, 602 n.1
(1994).
This interpretation of “single function of the trigger” formalizes an interpretation more than a
decade old, first set out by ATF in the 2006 ruling that corrected the original misclassification of the
Akins Accelerator. See ATF Rul. 2006-2. There, ATF concluded that a device “activated by a single
pull of the trigger, initiat[ing] an automatic firing cycle which continues until either the finger is
released or the ammunition supply is exhausted,” should be classified as a machinegun. The ruling
noted, as the Final Rule does, that this “determination is consistent with the legislative history of the
NFA.” Id. In particular, Congress received testimony in 1934 that a gun “which is capable of firing
more than one shot by a single pull of the trigger, a single function of the trigger, is properly regarded .
. . as a machinegun,” whereas “[o]ther guns [that] require a separate pull of the trigger for every shot
fired . . . are not properly designated as machineguns.” NFA Hearings at 40.
Plaintiffs object that “single pull” improperly disregards “the mechanical process through which
a trigger goes when each shot is fired” by “describ[ing] what the shooter is doing” rather than “what
15
the trigger is doing.” Mot. at 6-7. But past judicial interpretations have recognized the primacy of the
shooter’s actions over the mechanical functioning of a trigger. In United States v. Fleischli, 305 F.3d 643,
655-56 (7th Cir. 2002), the Seventh Circuit recognized that the definition of “single function of the
trigger” reasonably encompassed “an electronic on-off switch rather than a more traditional
mechanical trigger,” thereby concluding that a “minigun” was a machinegun. In doing so, the Court
rejected arguments that the minigun was not a machinegun because it was fired with an “electronic
switch” rather than a traditional trigger. The “switch served to initiate the firing sequence and the
minigun continued to fire until the switch was turned off or the ammunition was exhausted. The
minigun was therefore a machinegun.” Id. (superseded by statute). This illustrates that the statutory
definition is not understood to rest solely on the “function” of a trigger. In Akins, the Eleventh
Circuit then relied on Fleischli and the NFA’s legislative history to conclude that the interpretation of
“single function of the trigger” to mean a “single pull of the trigger” “is consonant with the statute
and its legislative history.” Akins, 312 F. App’x at 200.
ii. The Final Rule Reasonably Interprets the Term “Automatically.”
The Final Rule’s interpretation of “automatically” as meaning “the result of a self-acting or
self-regulating mechanism that allows the firing of multiple rounds through a single function of the
trigger” likewise accords with the plain meaning of that term. 83 FR 66553-54. As the Final Rule
explains, “‘automatically’ is the adverbial form of ‘automatic,’ meaning ‘[h]aving a self-acting or self-
regulating mechanism that performs a required act at a predetermined point in an operation[.]’” 83
FR 66519 (quoting Webster’s New International Dictionary 187 (2d ed. 1934); 1 Oxford English
Dictionary 574 (1933) (defining “automatic” as “[s]elf-acting under conditions fixed for it, going of
itself.”)). This is consistent with the analysis employed by the Seventh Circuit Court of Appeals in
interpreting the definition of machinegun in United States v. Olofson, 563 F.3d 652, 658 (7th Cir. 2009).
There, the Court explained that the statutory definition “delineates how the discharge of multiple
16
rounds from a weapon occurs: as the result of a self-acting mechanism . . . set in motion by a single
function of the trigger and . . . accomplished without manual reloading.” Id. This use of the term
“automatically”—to describe a device that assists in the channeling of energy into the subsequent
operation of the trigger, but nevertheless includes some degree of manual input—is no different
than other common uses of the term “automatic.” For example, in a car, an “automatic”
transmission in a car relieves a driver from a portion, but not all, of the burdens of a manual
gearshift.
Plaintiffs contend that “automatically” cannot properly be read to encompass a process that
requires “continuous control, direction, intervention, or guidance by a human being.” Mot. at 11.
Even a “true machinegun,” Mot. at 11, requires such “continuous control,” however. To be
effective, machineguns require immense concentration and human guidance, lest they spray their fire
dangerously and randomly. Indeed, many military machineguns are designed for use on a fixed or
portable mount, because a trained soldier cannot reasonably be expected to provide sufficient
control. And, as Plaintiffs necessarily acknowledge, a continuous “squeeze of the trigger [by a
shooter] . . . is needed . . . to fire a machinegun automatically.” Mot. at 11.
2. The Final Rule Reasonably Applies Its Interpretations To Conclude That Bump
Stocks Are Machineguns Within the Meaning of the Statute.
The Final Rule’s clarification that bump stocks are part of the regulatory definition of
machine-gun is also reasonable. As the Department explained, incorporating the Final Rule’s
interpretations of “automatically” and “single function of the trigger” into Congress’s definition
logically supports the Final Rule’s clarification of the definition of “machinegun” to make clear that
a machinegun includes a bump stock. The Final Rule’s discussion of the mechanics of a bump stock,
as installed on a commonly-owned semi-automatic firearm, demonstrates the correctness of this
conclusion.
First, [w]hen a shooter who has affixed a bump-stock-type device to a semiautomatic firearm
17
pulls the trigger,” that action helps to initiate “a continuous back-and-forth cycle that allows the
shooter to attain continuous firing after a single pull of the trigger.” 83 FR 66519. As the Final Rule
explains, this cycle requires several elements to ensure that “a firing sequence that produces more
than one shot” occurs. Id. One is that “the trigger finger remains stationary on the device’s ledge.”
Id. Another is that “constant forward pressure” is maintained “with the non-trigger hand” on the
appropriate part of the rifle. 83 FR 66518, 66532. When those conditions are satisfied and “a
shooter who has affixed a bump-stock-type device to a semiautomatic firearm pulls the trigger, that
movement initiates a firing sequence that produces more than one shot.” 83 FR 66519. The “single
pull of the trigger” is the shooter’s initial, conscious finger movement to initiate the firing sequence.
83 FR 66532. The “automatic” element is the assistance the bump stock provides in “directing the
recoil energy of the discharged rounds into the space created by the sliding stock.” Id. The self-
acting or self-regulating mechanism is the combination of the shooter’s inputs on the trigger, the
extension ledge, and the barrel shroud or fore-grip, along with the aforementioned “space” that
provides a “constrained linear rearward and forward path[].” Id. Using this analysis, the Final Rule
reasonably concludes that a bump stock is a machinegun.
Plaintiffs challenge this conclusion on a number of grounds. First, Plaintiffs contend that
“bump stocks . . . operate through a rapid series of trigger pulls, not a single pull.” Mot. at 8.
Relying on a fragment of a dictionary definition, Plaintiffs suggest that because “‘pull’ means ‘to
exert force upon,’ or ‘to use force in drawing, dragging or tugging,’ . . . a shooter must physically
touch a trigger in order to pull it,” and that each touch of the trigger therefore represents a separate
“pull.” Mot. at 8-9. This analysis is flawed because it ignores both the full dictionary definition and
places too much stock in the physical separation between trigger and finger that occurs in bump
firing. As the complete version of a comparable dictionary definition sets out, the verb pull means:
To exert upon (something) a force which tends to draw, drag, or snatch it towards
oneself, or away from its present position (whether or not movement takes place as a
18
result); to drag or tug at.”
“Pull, v.” OED Online. Oxford University Press, December 2018 (last visited Feb. 8, 2019). This
definition makes clear that the relevant elements are the overall “exert[ion]” and its direction with
regard to “its present position.” Id. And because it is immaterial to the definition “whether or not
movement takes place as a result,” the fact that the trigger itself bumps against a shooter’s finger
does not limit whether a single pull is occurring, as long as it is all a part of a single “exert[ion].”
Here, even though “the trigger . . . lose[s] contact with the finger” so that it can “manually reset,”
Mot. at 9 (quoting Final Rule at 66517), there is a constant exertion on the bump stock, permitting
the movements of the trigger to be classified properly as a “single pull of the trigger.” 11
Second, Plaintiffs object that a bump stock does not fire “automatically” because there is a
“critical element of human control” in providing the “proper combination of . . . forces,” i.e.,
“constant forward pressure” and “constant rearward pressure” on the bump stock. Mot. at 11.
Plaintiffs’ objection to the involvement of human control, however, is belied by the very dictionary
definition of “automatically” that Plaintiffs cite, which does not require an absence of human
control, but only “little or no human control.” See Mot. at 10-11 (citing https://en.
oxforddictionaries.com/definition/automatic). In essence, Plaintiffs’ disagreement with the bump
stock rule is one of degree: how much human intervention is necessary to render a bump stock
“manual” rather than “automatic.” In the Final Rule, DOJ has reasonably set forth an answer: a
bump stock is a self-acting or self-regulating mechanism because it reduces to “little” the required
degree of shooter involvement when it “direct[s] the recoil energy of the discharged rounds”
through the guidance of the shooter’s arms and “into the space created by the sliding stock in
11
A comparable example would include the pulling of a long rope using a hand-over-hand motion.
For example, if a boater brings aboard a line that is trailing in the water, he might employ both
hands in sequence as he coils it. Neither hand remains in constant contact with the rope, but it
would be appropriate to describe his actions as pulling the line aboard in a single pull.
19
constrained linear rearward and forward paths.” Id. at 66518. 12 As the Final Rule explains, this
degree of human involvement is consistent with the analysis set forth by the Seventh Circuit: “[U.S.
v.] Olofson . . . requires only that the weapon shoot multiple rounds with a single function of the
trigger ‘as the result of a self-acting mechanism,’ not that the self-acting mechanism produces the
firing sequence without any additional action by the shooter.” Id. at 66519 (quoting 563 F.3d 658
(emphasis added)). Thus, Plaintiffs have not established that the Final Rule’s line-drawing decision
is unreasonable, arbitrary, or capricious. 13
Moreover, in their later discussion of safety, Plaintiffs implicitly recognize the degree of
control that a bump stock automatically adds to the act of bump firing. Plaintiffs suggest that the
Final Rule will harm public safety because bump stocks are necessary to “permit controlled and
therefore safe bump fire,” which would otherwise require “a large berm and careful attention” for
safety to be maintained at a shooting range. Mot. at 27. This underscores that bump stocks are
providing an “automatic” function in ensuring that appropriate human input and intervention
12
If read in isolation, certain statements in the Final Rule could be misinterpreted to suggest that the
classification of bump stocks as machineguns relies on the absence of human involvement in the
harnessing of recoil energy. See, e.g., 83 FR 66518 (“[T]he device itself then harnesses the recoil
energy of the firearm, providing the primary impetus for automatic fire”); Id. at 66532 (the bump
stock “design eliminates the requirement that a shooter manually capture and direct recoil energy”);
83 FR 66533 (“bump stocks . . . are specifically designed to capture the recoil energy”). However,
the context makes clear that the agency understands that humans play the primary role in absorbing
and releasing the recoil energy. See, e.g., Id. at 66518 (“Shooters . . . direct[] the recoil energy of the
discharged rounds into the space created by the sliding stock”); id. at 66532 (“the shooter . . .
direct[s] the recoil energy . . . .”).
13
Nor does Plaintiffs’ effort to supplement their analysis with a declaration by a former ATF official
(the ex-Acting Chief of the Firearms Technology Branch Rick Vasquez) demonstrate that ATF’s
current rulemaking is arbitrary or capricious. Mr. Vasquez’s testimony as a former agency employee
cannot supplant the current views of those charged with interpreting the firearms statutes. See Via
Christi Regional Med. Ctr. v. Leavitt, 2006 WL 2773006 (D. Kan. Sept. 25, 2006) (“opinion testimony . .
. [of] former agency officials . . . is of limited value . . . [because] the personal opinion of such
officials as to what the regulations were intended to mean . . . does not bind the agency”); Christmann
& Welborn v. Dep’t of Energy, 589 F. Supp. 576, 581 (N.D. Tex. 1984) (“former government officials’
personal opinions as to intent of an agency [cannot] bind the government”).
20
facilitate the act of bump firing in a safer manner.
Plaintiffs also object to the conclusion in the Final Rule that a bump stock “functions as the
result of a self-acting or self-regulating mechanism,” relying on a dictionary definition that asserts a
mechanism must contain “moving parts.” Mot. at 12 (citing https://www.dictionary.com/
browse/mechanism”). But “mechanism” need not be so narrowly defined, and so Plaintiffs’
“moving parts” requirement is incorrect. A mechanism need not even be physical: one definition
states that a “mechanism” is an “instrument or process, physical or mental, by which something is
done or comes into being.” “Mechanism, n. . . . 3.” American Heritage College Dictionary. Houghton
Mifflin, 2000; see also “mechanism, n.” OED Online. Oxford University Press, December 2018 (last
visited Jan. 8, 2019) (“2a. A system of mutually adapted parts working together in a machine or in a
manner analogous to that of a machine.”). 14 The mere fact that a bump stock lacks moving parts
does not mean that a bump stock is not a mechanism.
Indeed, in arguing further that the “mechanism” involved in bump firing is “human—a
shooter,” and not “mechanical,” Plaintiffs’ further analysis concedes that “mechanism” may be
defined more broadly. See Mot. at 12 (citing Black’s Law Dictionary for the proposition that a
“mechanism” includes “components, elements, or parts, and the associated energy”). Plaintiffs
contend that because the shooter is “generating counter opposing forces, reacting to and utilizing
the recoil energy of the firearm,” Mot. at 13, the bump stock is not a mechanism at all. But the fact
that there is another, biological mechanism—the shooter—involved in bump firing does not mean
14
A “machine” likewise does not require moving parts. The lever, pulley, wheel-and-axle, inclined
plane, wedge, and screw have been described as the “simple machines” for centuries. See, e.g.,
“machine,” Charles Hutton, A Philosophical and Mathematical Dictionary, vol. 2, London (1815),
available at: https://books.google.com/books?id=lsdJAAAAMAAJ (last visited Feb. 8, 2019); Isaac
Newton, The Mathematical Principles of Natural Philosophy, vol. 1 at 24 (Andrew Motte, trans., 1729)
(1687) (“[F]rom hence are easily deduced the forces of Machines, which are compounded of Wheels,
Pulleys, Leavers, Cords and Weights”), available at:
https://books.google.com/books?id=Tm0FAAAAQAAJ (last visited Jan. 9, 2019).
21
that the bump stock itself is not a mechanism. All parties agree that firing with a bump stock
requires at least four things: a semi-automatic rifle, a bump stock, ammunition, and a human being.
The fact that Plaintiffs believe that only two of these (the rifle and the human being) are
“mechanisms” and the Final Rule concludes that three of these are mechanisms does not render the
Final Rule arbitrary and capricious.
Finally, Plaintiffs challenge ATF’s description of how bump stocks “channel[], harness[] and
direct[] the firearm’s recoil energy to slide the firearm back and forth so that the trigger automatically
re-engages by bumping the shooter’s stationary finger,” Mot. at 15 (quoting Final Rule at 66516),
alleging that “[b]ump stocks simply do not operate” this way. Contrary to Plaintiffs’ argument,
however, the fact that bump stocks are “just a piece of plastic” and “contain no springs, batteries,
capacitators, [or] generators,” Mot. at 15, does not contradict the Final Rule’s conclusion that they
constitute “device[s]” that assist the shooter in “captur[ing] and direct[ing] the recoil energy” of a
semi-automatic rifle. See 83 FR at 66533. It is of course the case that the shooter is also involved in
capturing and directing the recoil energy, as is the case with a classic machinegun such as a fully-
automatic M-16. But just as a lever (which can be nothing more than a piece of plastic, resting on a
fulcrum) channels the user’s force to a load at the other end, assisting the user in lifting the load, so
too does a bump stock channel force applied by the shooter to assist the shooter in bump-firing. As
Plaintiffs concede, “a bump stock is useful . . . for bump firing,” Mot. at 16, and it is “useful”
precisely because it assists the shooter in harnessing and directing the firearm’s recoil. See 83 FR
66516, 533.
3. The Fact That Non-Automatic Firearms May Be Bump-Fired Does Not

Demonstrate That the Bump Stock Rule is Arbitrary and Capricious.
Plaintiffs take issue with the fact that the Final Rule treats different forms of bump-firing
differently based on the type of device being used, claiming that is it “incomprehensible how . . .
bump fire using a plastic bump stock is illegal, while bump fire using a rubber band would remain
22
legal.” Mot. at 18. The Final Rule reasonably explains the distinction: unlike a belt loop or a rubber
band, bump stocks are “designed to be affixed” to a semiautomatic firearm. 83 FR 66515; 83 FR
66533. There is nothing arbitrary or capricious about a regulation that distinguishes among products
designed to operate in conjunction with a regulated firearm, and those being repurposed from other
uses, such as a belt loop or a rubber band. Moreover, as the Final Rule explains, a bump stock does
do something more than a shooter’s finger, a belt loop, or a rubber band would do in isolation—a
bump stock provides an empty, yet constrained, space, and this space functions as a self-regulating
mechanism that helps a shooter channel recoil energy that can then be used in resetting the trigger
for the purpose of rapidly firing another round. See 83 FR 66531-32.
To be sure, the statute makes no distinction among “combination[s] of parts from which a
machinegun can be assembled” based on whether those parts are specifically designed for the
purpose of creating a machinegun. Yet it is reasonable for the Final Rule to draw this distinction to
avoid the absurdity that would otherwise result. See Guzman v. Dep’t of Homeland Security, 679 F.3d
425, 432 (6th Cir. 2012) (“Interpretations of a statute which would produce absurd results are to be
avoided if alternative interpretations consistent with the legislative purpose are available”).
Numerous devices can be broken down into a combination of ordinary parts such as screws, bolts,
springs, and the like, or even into their constituent material components, such as metals, rubber, and
fabrics. In enacting Section 922(o), Congress could not reasonably have intended to ban rubber
bands, belt loops, screws, and other everyday items. See Guzman, 679 F.3d at 432. The logical
implication of the ban on a “combination of parts” to be assembled for a machinegun is that the ban
extends only to those parts designed to be so assembled.
Nor is it the case that the definitions in the Final Rule are arbitrary or capricious because
semi-automatic firearms possess some of the same attributes as bump stocks. Plaintiffs express their
fear that the Final Rule could thereby lead to a “ban [on] the most popular semiautomatic rifles in
23
America” by reclassifying those weapons as machineguns. Mot. at 20. Plaintiffs’ fears are
unfounded. As an initial matter, whereas bump stocks are “designed for . . . [the] primary purpose”
of facilitating the use of semi-automatic firearms in an automatic firing sequence initiated by a single
pull of the trigger, 83 FR at 66533, semi-automatic firearms are specifically designed not to fire
automatically. See Staples, 511 U.S. at 602 n.1 (1994) (distinguishing “automatic” and
“semiautomatic” weapons). That is the essence of the distinction that Congress made in defining
machineguns as those weapons that fire more than one round with a single function of the trigger,
and no reasonable regulation could collapse that distinction by reclassifying semi-automatic firearms
as automatic “machineguns.” 15 See F.J. Vollmer Co., Inc. v. Magaw, 102 F.3d 591, 597 (D.C. Cir. 1996)
(a “broad definition of machineguns” that sweeps in semi-automatic firearms “may actually be
inconsistent with Congressional intent” because Congress has “left the [NFA]’s definition of
semiautomatic rifles unchanged, choosing not to restrict the possession or transfer of any
semiautomatics”). Finally, Plaintiffs neglect that the Second Amendment protects against the
“prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for that
lawful purpose,” Dist. of Columbia v. Heller, 554 U.S. 570, 628 (2008), which supplies the “limiting
principle that would keep [the Government] from . . . target[ing] semiautomatic firearms as a class.”
Mot. at 20.
15
Further, Congress has provided a definition of “semiautomatic rifle” as a separate category of
weapon from a machine gun. “The term ‘semiautomatic rifle’ means any repeating rifle which
utilizes a portion of the energy of a firing cartridge to extract the fired cartridge case and chamber
the next round, and which requires a separate pull of the trigger to fire each cartridge.” 18 U.S.C. §
921(a)(28). The existence of this separate definition precludes an interpretation of “machine gun”
that would encompass ordinary semiautomatic rifles. See Hanson Cold Storage Co. v. Chizek Elevator &
Transport, Inc., 205 F. Supp. 3d 920, 925 (W.D. Mich. 2016) (“when the legislature use[s] different
terms within similar statutes, courts imply that different meanings were intended”); accord United
States v. Bean, 537 U.S. 71, 76 n.4 (2002) (“The use of different terms within related statutes generally
implies that different meanings were intended”) (quoting 2A N. Singer, Sutherland on Statutes and
Statutory Construction § 46:06, p. 194 (6th ed. 2000)).
24
4. The Final Rule Provides a Reasoned Explanation For Changing Course From
Previous ATF Classification Decisions Regarding Bump Stocks.
Plaintiffs also contend that the Final Rule lacks any reasoned explanation for its reversal of
previous ATF classification decisions regarding bump stocks and should also be rejected as arbitrary
and capricious on that basis. See Mot. at 23. The Final Rule addressed this issue directly, making no
secret of the fact that the application therein of the definitions of “single function of a trigger” and
“automatically” to bump stocks represent a “change [in] course” that requires the Department “to
reconsider and rectify its past classifications.” 83 FR at 66530-31. Courts have long recognized that
“an initial agency interpretation is not instantly carved in stone.” Metropolitan Hosp. v. H.H.S., 712
F.3d 248, 266 (6th Cir. 2013) (internal quotations omitted). “So long as any change is reasonably
explained, it is not arbitrary and capricious for an agency to change its mind in light of experience
. . . or further analysis.” New England Power Generators Ass’n v. FERC, 879 F.3d 1192, 1201 (D.C.
Cir. 2018); see F.C.C. v. Fox Television Stations, Inc., 567 U.S. 239, 250 (2012) (“an agency, in the
ordinary course, should acknowledge that it is in fact changing its position and show that there are
good reasons for the new policy.”). And it is appropriate for an agency to act and implement a
change in position “based on a fuller understanding of . . . a safety issue,” as long as it explains “its
previous reluctance” to adopt the position now taken. Radio Ass’n on Defending Airwave Rights v. Fed.
Highway Admin., 47 F.3d 794, 804-05 (6th Cir. 1995).
Here, the Final Rule provides a straightforward explanation for Defendants’ decision to
review the prior interpretations, which led to the change in position adopted in the Final Rule. In
light of the use of bump stocks by the Las Vegas perpetrator and the large number of casualties in
that mass murder, Defendants acted on requests from the public and Members of Congress, and
instructions from the President, and revisited the past classification decisions and analysis. See 83 FR
66528-29. Upon doing so, the agency recognized that it had erred in the application of the statutory
definition, resulting in the misclassification of some bump stocks. See id.; 83 FR 66531. To address
25
this misclassification, Defendants concluded that the statutory definition and its application needed
to be clarified, and this rulemaking ensued. See generally id.
As to the application of the definitions of “single function of the trigger” and
“automatically” to reverse previous ATF classification decisions, it is axiomatic that the Department
and ATF possess the authority “to reconsider and rectify errors” because an “agency, like a court,
can undo what is wrongfully done by virtue of its order.” Gun South Inc. v. Brady, 877 F.2d 858, 862
(11th Cir. 1989) (quoting United Gas Improvement Co. v. Callery Properties, 382 U.S. 223, 229 (1965)); see
also Dun & Bradstreet Corp. Foundation v. U.S. Postal Service, 946 F.2d 189, 193 (2d Cir. 1991) (“It is
widely accepted that an agency may, on its own initiative, reconsider its interim or even its final
decisions, regardless of whether the applicable statute and agency regulations expressly provide for
such review”). The now-reversed classification decisions, along with ATF’s past statements
regarding its authority to regulate bump stocks, amount to such errors when considered in light of
the new rule. See 83 FR 66531. Although, absent the Final Rule’s definition of “automatically,” it
was correct for ATF to rule that “when affixed to a semiautomatic firearm,” a bump stock “does not
make that firearm fire automatically,” Mot. at 21, that conclusion is no longer valid. Such past
statements do not now preclude DOJ from “changing its position and show[ing] that there are good
reasons for the new policy,” Fox, 567 U.S. at 250, based on the experience learned from the use of
bump stocks in Las Vegas.
Contrary to Plaintiffs’ argument, moreover, the Final Rule explicitly rejects the proposition
that it was “enacted pursuant to a political decision . . . without justification in fact or law.” Mot. at
2, 27. Rather, the Final Rule explains that it adopts the “best interpretation of the statute,” 83 FR
66518, and is based on the need to “define[] the terms ‘automatically’ and ‘single function of the
trigger.’” Id. at 66528; see id. at 66529 (explaining “the impetus for this rule”). The Supreme Court has
recognized that both “Presidential oversight” and “political pressure from Congress” are appropriate
26
reasons for agency policy changes. F.C.C. v. Fox, 556 U.S. 502, 523 (2009).
In sum, DOJ has acted reasonably, and Plaintiffs have not established a substantial likelihood
of success on the merits.
II. The Balance of Equities Does Not Tip in Plaintiffs’ Favor and an Injunction is
Not in the Public Interest.
As Plaintiffs acknowledge, the final two elements of the preliminary injunction analysis
“merge when the Government is the opposing party.” Mot. at 3 (quoting Al-Sarih v. Sessions, 2018
U.S. App. LEXIS 2482 at *4 (6th Cir. 2018)); see Nken v. Holder, 556 U.S. 418, 435 (2009). In
considering these factors, the Court must “pay particular regard for the public consequences in
employing the extraordinary remedy of injunction.” Winter, 555 U.S. 7. Implementation of the Final
Rule serves important public values that outweigh the harm to Plaintiffs of the abandonment or
destruction of their bump stocks. As explained below, the equities here do not favor Plaintiffs. 16
First, the bump stock rule makes clear throughout that its adoption will likely promote public
safety. See 83 FR at at 66515 (“a desired outcome of this final rule is increased public safety”); id. at
66520 (“this rule reflects the public safety goals of the NFA and GCA”); accord NPRM, 83 FR at 13447
(reported use of bump stocks by Las Vegas perpetrator made “individuals aware that these devices
exist—potentially including persons with criminal or terrorist intentions—and made their potential to
threaten public safety obvious”). This public safety benefit would be undercut by an injunction which
would allow a terrorist or criminal to use a lawfully-possessed bump stock to carry out a large-scale
attack. For this reason, public safety tilts the equities in favor of Defendants, particularly here, where
16
Defendants do not contest Plaintiffs’ contention that implementation of the Final Rule will lead to
the “forced surrender, confiscation, or destruction” of Plaintiffs’ bump stocks, thereby causing
Plaintiffs to “lose the use and enjoyment of those items . . .” Mot. at 24. The touchstone of
irreparable harm is whether “adequate compensatory or other corrective relief will be available at a
later date,” Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (internal quotations omitted),
and Plaintiffs have established that it will not. Thus, Defendants concede that Plaintiffs have met
the irreparable harm prong of the preliminary injunction standard.
27
public safety is the mandate prescribed by Congress in the NFA and GCA. See Proctor v. Dist. of
Columbia, 310 F. Supp. 3d 107, 117 (D.D.C. 2018) (public safety justification supported balancing the
equities in favor of governmental defendants); Gale v. O’Donohue, --- F. App’x ---, 2018 WL 6132050
(6th Cir. Nov. 21, 2018) (dangers to civilians warrant finding balance of equities in favor of
Government’s law enforcement interests).
Plaintiffs respond that the Final Rule has purportedly “disclaimed” the Government’s
interest in public safety. Mot. at 25. Plaintiffs misapprehend the Final Rule’s discussion of this
issue. Although the bump stock rule is justified entirely by “the functioning of the device and the
application of the relevant statutory definition,” 83 FR at 66529, this does not mean that
implementation of the Final Rule would not advance public safety. To the contrary, a “desired
outcome” of the Final Rule is “increasing public safety.” 83 FR at 66537. And because the use of
bump stocks by the perpetrator of the Las Vegas mass murder has “made individuals aware that
these devices exist,” the risk that these devices will be used further and thereby “threaten public
safety” is readily apparent. 83 FR at 66528.
In addition, implementation of the Final Rule reflects a particularized interest in advancing
the safety of law enforcement personnel. As the Final Rule noted, “[a] ban [on bump stocks] . . .
could result in less danger to first responders when responding to incidents.” 83 FR 66551. This
“public[] interest in the safety of . . . law enforcement officials is both legitimate and weighty.”
United States v. Denny, 441 F.3d 1220, 1225-26 (10th Cir. 2006) (quoting Penn. v. Mimms, 434 U.S. 106,
110 (1977)). As with the interest in public safety, this interest would not be advanced during the
pendency of an injunction, and this further tips the balance of the equities in favor of Defendants.
Plaintiffs contend in the alternative that the balance of equities favors an injunction because
permitting continued possession of bump stocks will make shooting “safer,” and because a
preliminary injunction is needed to ensure “the proper exercise of legislative powers.” Mot. at 26-
28
27. Each of these arguments is based on an erroneous premise. With regard to whether bump
stocks are needed to avoid the use of less “controllable methods of bump fire,” Mot. at 27, Plaintiffs
presuppose that shooters will be inclined to engage in bump fire absent the presence of bump
stocks. Yet the very popularity of bump stocks suggests otherwise: shooters have likely flocked to
the use of bump stocks precisely because they do not want to engage in alternative methods of
bump fire that are not as safe. See 83 FR 66533-35; compare Mot. at 28 (describing bump stocks as “a
law-abiding firearm enthusiast’s accessory of choice”). Similarly, Plaintiffs’ claim that an injunction
is necessary for “the proper exercise of the legislative powers” conflates the balancing of equities
with the likelihood of success on the merits. See Mot. at 27-28. For the reasons explained above,
the Department has acted properly in interpreting the definition of “machinegun” and concluding
that bump stocks fall within that definition.
Indeed, Congress’s findings in adopting the GCA and NFA and instituting a general ban on
the private acquisition of new machineguns illustrate that the public interest is in implementing
congressional priorities and stopping the proliferation of machineguns, including bump stocks. See,
e.g., O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 342 F.3d 1170, 1190-91 (10th Cir. 2003)
(congressional findings are important factor in demonstrating public interests affected by
preliminary injunction). The protection of the public and law enforcement officers from the
proliferation of firepower in criminal hands is a consistent theme that runs through federal firearms
legislation, including the NFA, GCA, and FOPA. See generally pp. 3-5. In weighing the public
interest and balance of the equities at the preliminary injunction stage, “the Court must enforce the
priorities of Congress,” United States v. RX Depot, Inc., 297 F. Supp. 2d 1306, 1310-11 (N.D. Okla.
2003), and should therefore reject Plaintiffs’ contention that an injunction would help enforce
compliance with the law.
29
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion should be denied.
Dated: February 11, 2019 Respectfully submitted,
ANDREW B. BIRGE
United States Attorney
JOSEPH H. HUNT
Assistant Attorney General
JOHN R. TYLER
Assistant Branch Director
MATTHEW J. GLOVER
Counsel to the Assistant Attorney General
/s/
ERIC J. SOSKIN (PA Bar #200663)
Senior Trial Counsel
Federal Programs Branch
U.S. Department of Justice, Civil Division
1100 L Street, NW Rm. 12002
Washington, DC 20530
Telephone: (202) 353-0533
Fax: (202) 616-8470
Email: Eric.Soskin@usdoj.gov
RYAN D. COBB
Assistant United States Attorney
Post Office Box 208
Grand Rapids, MI 49501-0208
(616) 456-2404
Ryan.Cobb@usdoj.gov
Counsel for Defendants
30
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief is in compliance with Local Civil Rule 7.2(b)(i), which provides
that this brief “shall not exceed ten thousand eight hundred (10,800) words, to include headings,
footnotes, citations and quotations,” not counting “the case caption, cover sheets, any table of
contents, any table of authorities, the signature block, attachments, exhibits, and affidavits.”
As directed by the Rule, I have used the “word count” function in Microsoft Word 2016 and
obtained a count of 10,756 words.
/s/
ERIC J. SOSKIN
Counsel for Defendants
31

SOUTHERN DIVISION
GUN OWNERS OF AMERICA, INC.,

et al.,
Plaintiffs, Case No. 1:18-cv-01429

Hon. Paul L. Maloney
v.
MATTHEW WHITAKER, et al.,
Defendants.
___________________________________________________________________________
REPLY BRIEF IN SUPPORT OF PLAINTIFFS’

MOTION FOR PRELIMINARY INJUNCTION
I. THE FINAL RULE REWRITES THE STATUTE TO SUIT A POLITICAL AGENDA.
A. Defendants Assert No Statutory Ambiguity.
Defendants never dispute that the statutory definition of “machinegun” is unambiguous. Rather,
Defendants claim only that the statute does not “clearly exclude[]” bump stocks. Defendants’ Brief
in Opposition to Plaintiffs’ Motion for Preliminary Injunction (“Opp.”) 14. Having failed to contest
this issue, Defendants waived it.1
Defendants nevertheless purport to “interpret” the term “machinegun” in an unambiguous
statute, claiming their new interpretation is “reasonable,” and thus not arbitrary and capricious.2 Opp.
14. In doing so, Defendants admit the Final Rule rewrites the statute: “once definitions ... have been
1
See Dillery v. City of Sandusky, 398 F.3d 562, 569 (6th Cir. 2005); see also Estate of
Romain v. City of Grosse Pointe Farms, 2018 U.S. Dist. LEXIS 105494, *6 (E.D. Mich. June 25,
2018).
2
See United States v. TRW Rifle 7.62x51mm Caliber, 447 F.3d 686, 689 n.4 (9th Cir.
2006) (“because the statute is unambiguous, we simply follow the standard course of applying the
definition to the facts.”).
provided” — but apparently not until then — “the statute is reasonably interpreted to include bump
stocks....”3 Opp. 3. In another pending case, Defendants admitted that, “[a]bsent the revised definition
... ATF could not ‘restrict’” bump stocks. Guedes v. ATF, USDC-DC, No. 18-2988, ECF #16 at 33
(“Guedes Opp.”); see also Opp. 26. Defendants have admitted the Final Rule constitutes an
“expansion4 of the definition” of machinegun. Guedes Opp. 10. In another case, the government called
it a “revision” of the statute. Codrea v. ATF, USDC-DC, No. 18-3086, ECF #16 at 4 (“Codrea
Opp.”).
Defendants assert that ATF may “expand” the statutory language to include bump stocks unless
“the statutory text clearly excluded bump stocks.” Opp. 14. Au contraire. Expressio unius est
exclusio alterius. It is axiomatic that Congress must be explicit when defining what constitutes a
federal crime. See United States v. Gradwell, 243 U.S. 476, 485 (1917). The fact that Congress did
not “clearly exclude” bump stocks from the statute does not mean bureaucrats are free to “expand” the
definition as they see fit. Administrative agencies do not wield unlimited power, constrained only by
express statutory language. Rather, ATF may only interpret the statute as written. Yet Defendants
3
Plaintiffs contended the statute is clear and unambiguous and, thus, Defendants are
entitled to no deference. Memorandum in Support of Plaintiffs’Motion for Preliminary Injunction
(“Pl. Memo”) 20-22. Apparently Defendants agree, since they assert neither Chevron deference
nor ambiguity. Indeed, in Guedes, Defendants concede they are due no deference. Guedes Opp.
29. And, as the Supreme Court noted, “[t]he critical point is that criminal laws are for courts, not
for the Government, to construe. See, e.g., United States v. Apel, 571 U. S.359, 571 U.S. 359, 369
... (2014) (‘[W]e have never held that the Government’s reading of a criminal statute is entitled to
any deference’). We think ATF’s old position no more relevant than its current one — which is to
say, not relevant at all.” Abramski v. United States, 573 U.S. 169, 191 (2014).
4
Just last year, the Supreme Court held “[t]he statute’s unambiguous ... definition, in short,
precludes the [agency] from more expansively interpreting that term.” Dig. Realty Trust, Inc.
v. Somers, 138 S.Ct. 767, 782 (2018) (emphasis added).
2
admit that, under the statute as written, bump stocks could not be banned. For that reason, the Final
Rule was both beyond the scope of ATF’s authority to enact, and arbitrary and capricious.
Defendants fret that, without the Final Rule, bump stocks could “circumvent 18 U.S.C.
§ 922(o).” Opp. 1. But as Plaintiffs explained, “bump fire stocks were specially designed to fall
outside the statutory definition of a machinegun....” Pl. Memo 1. This has been Defendants’ position
for years. Suddenly now they fear that, unless permitted to expand the statute, bump stocks will
“undercut Congress’s regulation of machineguns....” Opp. 14. Even if that speculation were true, it
would be an issue for Congress to address, not ATF.
B. Defendants Admit the Final Rule Was Issued Due to a Political Directive, Rather
than Legal Analysis.
Defendants admit they promulgated the Final Rule in response to “a presidential instruction
to adopt this Final Rule,” and are simply “[c]arrying out that directive....” Opp. 1, 2, 8. Defendants
nevertheless “explicitly reject[]” that the Final Rule is a political decision, instead claiming it “adopts
the ‘best interpretation of the statute’....” Opp. 26.
Yet Defendants confess that they set out to “interpret[] ... ‘automatically’ and ‘single function
of the trigger’ ... in the context of bump stocks....” Opp. 6 (emphasis added). But agencies may not
change how they “interpret” a law carrying criminal penalties with a particular result in mind —
particularly one they have been ordered by the President to reach. Rather, agencies must craft
regulations in the context of the law that Congress enacted. Here, it is obvious Defendants set out
to implement the President’s end goal of banning bump stocks, then worked backwards to find a way
to rationalize it.
3
C. Rewriting a Criminal Statute by Changing a Key Word Is Not an “Interpretation”

but a Usurpation of Congressional Authority.
Defendants claim “[t]he Final Rule interprets the phrase ‘single function of the trigger’ to
mean ‘a single pull of the trigger....’” Opp. 14 (emphasis added). That is neither an “interpretation”
nor a “clarification,” but an amendment. ATF has deleted Congress’s word and substituted its own
— replacing “function”5 with “pull” — to suit its agenda.
Agencies are not free to edit statutes at will. In 2014, the Supreme Court rejected EPA’s
decision to “tailor” a statutory requirement by substituting a numerical threshold the agency preferred
in place of the one Congress enacted: “EPA’s rewriting of the statutory thresholds was
impermissible.... An agency has no power to ‘tailor’ legislation to bureaucratic policy goals by
rewriting unambiguous statutory terms ... to suit its own sense of how the statute should operate.”
Utility Air Regulatory Group v. EPA, 573 U.S. 302, 325-26 (2014). Likewise here, the agency’s
“need to rewrite ... should have alerted [ATF] that it had taken a wrong interpretive turn.” Id. at 328.6
5
Defendants never dispute Plaintiffs’ contention that bump stocks do not fire multiple
rounds by a “single function of the trigger.” Defendants only attempt to convince the Court to
convert “function” to “pull.” Defendants’ concession that bump stocks do not fit under the statute
as written is quite telling. As Judge Friedrich noted at both oral arguments in the D.C. bump stock
cases, ATF’s “interpretation” changes the statute from its firearm-centric focus to a shooter-centric
focus — from objective firearm mechanics to subjective human intent. Yet an agency’s actions are
“arbitrary and capricious if the agency has relied on factors which Congress has not intended it to
consider....” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43-44
(1983). Here, Congress dictated that ATF look at “what the trigger is doing,” and instead ATF has
looked at “what the shooter is doing.” Pl. Memo 7.
6
An agency may not, “under the guise of interpreting a regulation ... create de facto a new
regulation.” Christensen v. Harris County, 529 U.S. 576, 588 (2000).
4
The words “function” and “pull” are not synonyms, nor are they even related concepts. At
best, it could be said that “pull” is one of many ways a “function” can be achieved.7 Therein lies a
major problem for the agency. Triggers are not only pulled, but also pushed, paddled, switched, etc.
See 83 Fed. Reg. 66518 n.5. Defendants attempt to rescue their use of “single pull” by adding new
language to the Final Rule not present in the Notice of Proposed Rulemaking (83 Fed. Reg. 13442).8
Now, ATF “interprets the phrase ‘single function of the trigger’ to mean ‘a single pull of the trigger,’
along with ‘analogous motions.’” Opp. 14 (emphasis added). First, ATF changed the statute from
“function” to “pull.” Now it realizes that “pull” is not encompassing enough and must be further
changed to include push, paddle, switch, button, and flip. Of course, the statutory term “function”
encompasses all ways a trigger can be activated, as Congress no doubt was aware. Indeed, it is
patently obvious that Congress understood how to clearly define a machinegun in 1934, avoiding the
need for the rhetorical games ATF is now playing.
D. Defendants Seek to Adopt “Ordinary Terminology” to Replace the Statutory

Text.
Defendants claim they are free to replace the statutory term “function” with “pull” because
“‘[p]ull the trigger’ is the ordinary, accepted terminology for how to discharge a firearm....” Opp.
15 (emphasis added). But while agencies and courts often use the ordinary accepted meaning when
interpreting statutory terminology, an agency certainly is not free to replace the terminology itself with
language that suits the agency’s agenda. Here, Congress chose the technical term “single function of
7
At best, “function” and “pull” can be represented by a Venn diagram, wherein some
“functions” are “pulls,” and some “pulls” are “functions,” but they are certainly not
interchangeable terms, as the government claims.
8
Although the Eleventh Circuit once approved (erroneously, Plaintiffs contend) of “single
pull” in Akins v. United States, 312 Fed. Appx. 197 (11th Cir. 2009), it never considered ATF’s
latest revision.
5
the trigger,” which Defendants argue Congress did not mean, since it departed from the terminology
in common use. On the contrary, Congress’s deliberate departure from the ordinary terminology
(“pull”), especially given the “ubiquity of this usage” (Opp. 15), indicates a legislative desire that
“single function of the trigger” describe the operation of the firearm, not the actions of the shooter.
In Guedes, Defendants asserted their interpretation of the statute should be upheld “so long as
the terms are given their ‘ordinary, accepted meaning.’” Guedes Opp. 29. However, under the
“ordinary-meaning canon,” “[w]ords are to be understood in their ordinary, everyday meanings —
unless the context indicates that they bear a technical sense.” See A. Scalia and B. Garner,
Reading Law, p. 69 (West Publishing: 2012) (emphasis added). Here, “single function of the trigger”
clearly bears a technical meaning; even more so since Congress departed from the “ordinary
terminology.” ATF is not free to interpret it colloquially.
E. Defendants Seek to Change Both the Law and the Facts.
Defendants admit ATF previously recognized on multiple occasions that “bump stocks ...
lacked internal springs or other mechanical parts that channeled recoil energy.” Opp. 7 (emphasis
added). The Final Rule, however, claimed that “bump-stock-type devices ... channel recoil energy.”
83 Fed. Reg. 66516 (emphasis added). Now, Defendants claim only that a bump stock merely “helps
a shooter channel recoil energy....” Opp. 23 (emphasis added). This is not the only “alternative fact”
being asserted.
In 2010, ATF ruled that a bump stock “has no automatically functioning mechanical parts or
springs and performs no automatic mechanical function....” Exhibit 1. ATF now claims that bump
stocks “function[] as a self-acting or self-regulating mechanism....” 83 Fed. Reg. 66515.
6
Next, “[i]n 2013, ATF correctly admitted that bump stocks ‘require[] continuous multiple
inputs by the user for each successive shot.’” Pl. Memo 14. ATF now claims that bump stocks
“enabl[e] the shooter to continue the firing sequence ... without conscious input or direction to the
trigger finger.” Guedes Opp. 25 (emphasis added).
In 2008, ATF explained that “every subsequent shot depends on the shooter applying the
appropriate amount of forward pressure....” Exhibit 12. “Now ... ATF claims that bump stocks
operate ‘without additional physical manipulation of the trigger....’” Pl. Memo 14.9
Finally, in 2012, ATF distinguished bump stocks from “devices that require only a single pull
of the trigger....” ATF Letter to William M. Thornberry, July 13, 2012. Now, ATF claims that bump
stocks “initiate a continuous firing cycle with a single pull of the trigger....” 83 Fed. Reg. 66514.
These above examples do not evidence a different interpretation of the law, but rather a
contradictory recitation of the facts. ATF claims that bump stocks do not operate the way they did in
2008, even though bump stocks’ design and operation (and the laws of physics) have not changed.
ATF claims its newfound “understanding” is justified because it had not yet formally defined the word
“automatically.” Yet ATF’s new “alternative facts” apply to both prongs of the statute. ATF has
manufactured and adopted a set of “facts,” torturing both language and logic, designed to achieve its
preferred result of banning bump stocks in contradiction of more than a decade of contrary ATF
interpretations.10
9
Defendants assert that “there is a ... constant intent by the shooter to continue to pull on
the trigger,” while they concede that a “bump stock [enables firing] without conscious input or
direction to the trigger finger.” Guedes Opp. 24-25 (emphasis added).
10
ATF has “offered an explanation for its decision that runs counter to the evidence before
the agency, [and] is so implausible that it could not be ascribed to a difference in view or the
product of agency expertise.” Motor Vehicle Mfrs. at 43.
7
II. BUMP STOCKS DO NOT FUNCTION AUTOMATICALLY.
A. Bump Stocks Are Not a Mechanism.
Defendants curiously argue that “a bump stock provides an empty, yet constrained, space, and
this space functions as a self-regulating mechanism that helps a shooter channel recoil energy....” Opp.
23.
First, a bump stock does not “provide an empty space” — presumably meaning space for the
firearm and trigger to recoil rearward away from the trigger finger. Rather, it is the shooter’s support
hand pushing the firearm away from his body that provides separation (between his body and the
firearm) for the firearm to recoil. Yet Defendants admit that forward pressure — not a bump stock
— is necessary to bump fire. Opp. 9. The “empty space” necessary for bump firing is present
whether one bump fires with a bump stock, a belt loop, or even bare hands.
Second, it is quite an assertion that “empty ... space functions as a self-regulating
mechanism.” To be sure, Defendants argue in favor of an expansive meaning of “mechanism” to
include not only “moving parts” but also an “‘instrument or process....’” Opp. 21. But “empty space”
is neither of those — empty space11 is certainly not a mechanism.
Third, a bump stock does not “channel recoil energy” or even “assist” a shooter in doing so.
See 83 Fed. Reg. 66516. As a verb, “channel” means “to direct toward or into some particular
course.”12 Bump stocks do not “direct” energy either forward or rearward. To be sure, the normal
recoil of the firearm pushes the firearm rearward (into the bump stock), and then the shooter’s forward
pressure pushes the firearm forward (and away from the bump stock). But the bump stock isn’t
11
https://www.dictionary.com/browse/space.
12
https://www.dictionary.com/browse/channel.
8
responsible for these motions; rather, physics are — specifically, Newton’s Third Law of Motion.
This linear back-and-forth path exists with or without a bump stock. In other litigation, Defendants
actually conceded that bump stocks do not channel energy, admitting that “the channeling ... relies on
‘the shooter’s maintenance of pressure ... and constant rearward pressure on the device’s extension
ledge....’” Guedes Opp. 26.
Finally, even if a bump stock could be said to “channel” energy, the Final Rule never uses the
word “channel.” Rather, the Final Rule alleges that bump stocks act by “harnessing the recoil
energy....” 83 Fed. Reg. 66553-54 (emphasis added). “Harness” has an entirely different (and more
complex) meaning from “channel.” Channel means “to direct toward or into some particular
course.” To “harness” means to “gain control over for a particular end.”13 A ditch channels
(directs) water, but a dam harnesses (collects, stores) water much like a battery. Watering down the
test from “harness” to “channel” is another attempt by the government to move the goal posts.
B. Defendants Admit Bump Stocks Do Not Harness Energy.
Plaintiffs argued that the Final Rule “confuse[s] and obfuscate[s] the way bump stocks
operate.” Pl. Memo 15. In their Opposition, Defendants seek to walk back some of their erroneous
statements, admitting that “certain statements in the Final Rule could be misinterpreted.” Opp. 20
n.12. For example, Defendants admit the Final Rule alleges that the bump stock “itself ... harnesses
the recoil energy,” that a bump stock “eliminates the requirement that a shooter manually capture
and direct recoil energy,” and that “bump stocks ... are specifically designed to capture the recoil
energy.” Id. (emphasis added).
13
https://www.dictionary.com/browse/harness.
9
Plaintiffs originally pointed out that “[b]ump stocks ‘harness’ nothing, they are just a piece
of plastic. They contain no springs, batteries, capacitors, generators, etc.” Pl. Memo 15. Defendants
admit the truth of that statement. See Opp. 22. Plaintiffs explained bump stocks “require the shooter
to capture and direct the recoil energy....” Pl. Memo 16 (emphasis added). Defendants attempt to
save the Final Rule from its errors by deflecting, claiming “the context makes clear that the agency
understands that humans play the primary role in absorbing and releasing the recoil energy.” Opp.
20 n.12 (emphasis added). In other words, the “context” should cause the rule to be read to mean the
opposite of what the Final Rule expressly states. On the contrary, if the “context” makes anything
“clear,” it is that the Final Rule portrays bump stocks falsely.
Apparently abandoning their claim that bump stocks “harness” energy, Defendants now allege
that a bump stock only “assists the shooter in harnessing and directing the firearm’s recoil.” Opp.
22 (emphasis added). Of course, nothing in the Final Rule discusses “assistance” in harnessing
energy, and the Final Rule on its face applies only to devices which “harness[] the recoil energy” (83
Fed. Reg. 66554), not devices which “assist” a shooter in doing so. Again, Defendants seek to widen
the goal posts they originally established.
C. “Automatically” Is Not a Matter of “Degree.”
Defendants agree something which is “automatic” works with “‘little or no human control.’”
Opp. 19. Defendants concede bump stocks require additional input that machineguns do not —
forward pressure on the firearm by the support hand. At oral argument before Judge Friedrich in
Guedes on February 6, 2019, government counsel stated that forward pressure by the support hand is
an “element of added input.” Nevertheless, Defendants allege that bump stocks should still be treated
as automatic because the issue “is one of degree: how much human intervention is necessary....” Opp.
10
19. Defendants contend that bump stocks, even with the added human input, are still automatic
enough14 to be considered machineguns.
Defendants are wrong. The question of what constitutes “automatically” is decidedly not “one
of degree.” Rather, Congress has specified the boundaries of what constitutes “automatically”: a
machinegun is “any weapon which shoots ... automatically ... by a single function of the trigger.”
26 U.S.C. § 5845(b) (emphasis added). A “single function of the trigger” is the starting and the ending
point of just how much human input is allowable to still render a firearm “automatic.” Since
Defendants admit bump stocks require more human input than a single function of the trigger, bump
stocks require more input than the statute permits. Thus, they are not machineguns, and ATF has no
authority to treat them as such.
D. Bump Stocks Fail Defendants’ Own Test for “Automatically.”
Defendants set out the reasons they believe bump stocks are “automatic”:
“1) the trigger finger remains stationary on the ledge provided by the design of the
device;
2) the shooter maintains constant rearward pressure on the trigger; and
3) the shooter constantly pushes forward....” [Opp. 9.]
Bump stocks do not meet prongs one and two of that test.
First, addressing the question as to whether a person could simply remove the bump stock’s
finger “ledge” and thereby avoid classification as a machinegun, ATF’s Final Rule stated that “[t]he
Department does not believe that removing the trigger ledge is sufficient to affect a bump-stock-type
14
Defendants point to Plaintiffs’ argument that bump stocks permit “‘controlled and
therefore safe bump fire.’” Opp. 20. Defendants argue that this “underscores that bump stocks are
providing an ‘automatic’ function....” Id. That is nonsensical. Firearm sights permit a shooter to
engage in “controlled and therefore safe” firing of the rifle, but certainly do not “provid[e] an
‘automatic’ function.”
11
device’s classification as a machinegun.” 83 Fed. Reg. 66537. But how can the extension ledge be
necessary to the bump stock’s “automatic” operation, yet irrelevant to its classification as a
machinegun?
Second, Defendants have admitted numerous times that a shooter maintains “constant rearward
pressure on the device’s extension ledge” — not the firearm’s trigger — and that “‘the trigger ...
lose[s] contact with the finger’” between shots. Opp. 19. Defendant is correct. Indeed, how could
a shooter simultaneously maintain constant contact with both the bump stock extension ledge and the
trigger, when the trigger and the extension ledge are constantly articulating towards and away from
each other? See Exhibit 34. The answer is obvious — the concepts are mutually exclusive and cannot
simultaneously be true.
III. BUMP STOCKS DO NOT FIRE WITH A SINGLE FUNCTION OR SINGLE PULL.
A. Defendants Claim a Shooter Can Pull the Trigger without Touching It.
Defendants dispute the simple truth that “a shooter must physically touch a trigger in order to
pull it.” Pl. Memo 8. Although Defendants admit that, when bump firing, the shooter’s trigger finger
is physically separated from the trigger between shots (Opp. 19), they somehow dispute that bump fire
involves a “‘rapid series of trigger pulls.’” Opp. 18. Rather, Defendants assert that Plaintiffs
“place[] too much stock in the physical separation between trigger and finger.” Id. According to
Defendants, all that matters is that bump fire “is all a part of a single ‘exert[ion],’” whatever that
means. Id at 19. In Guedes, Defendants claimed the “constant exertion on the bump stock ...
corresponds to constant intent by the shooter to continue to pull the trigger....” Guedes Opp. 24
(emphasis added). In other words, according to Defendants, it doesn’t matter that a shooter doesn’t
actually continue to pull the trigger; all that matters is that he intends to continue to pull the trigger.
12
With this leap of logic, Defendants have abandoned Congress’s technical definition based on firearm
mechanics and replaced it with a definition that turns on conscious or subconscious intent by a shooter.
Even if Defendants were correct that ATF has “presumed knowledge regarding ‘scientific
determinations’” (Opp. 11-12), it has no expertise in determining a person’s mental state.
B. Defendants Admit Bump Stocks Are Not the Impetus for Bump Fire, nor Do They
“Accelerate” Bump Fire.
Defendants characterize a bump stock as “an apparatus ... allowing a shooter to use the
weapon at a rate of fire15 similar to that of an automatic weapon.” Opp. 1-2 (emphasis added).
However, Defendants quickly abandon that argument. Opp. 14 n.10. According to Defendants, though,
their error does not matter: “the fact that bump stocks [only] assist [but do not allow] shooters in
firing faster is not the basis for the Final Rule nor the reason bump stocks are machineguns.” Id.
(emphasis added). According to Defendants, factual inaccuracies in the Final Rule are irrelevant.
In the Final Rule, as well as in their briefing in Guedes, Defendants claimed that bump stocks
“accelerate the firing rate [a shooter] can attain relative to his or her use without a bump stock.”
Guedes Opp. 22 (emphasis added); see 83 Fed. Reg. 66516. But Defendants have recognized that
bump fire existed long before the invention of bump stocks, and will continue unimpeded in the
absence of bump stocks. See 83 Fed. Reg. 66551; see also Exhibit 2. It is not the bump stock that
enables bump fire. Rather, it is the bump fire technique — performed by the shooter, not the device
— that allows a shooter to shoot rapidly. Pl. Memo 13. A bump stock just makes the bump fire
15
Bump stocks do not help a shooter fire any faster when compared to bump firing without
a bump stock. Even if they did, that factor is irrelevant as to what constitutes a machinegun.
Congress did not outlaw any particular “rate of fire” when it outlawed machineguns. Once again,
Defendants attempt to distract from the mechanics-based statute, and move to a results-oriented
test. Again, “bump fire is not automatic fire simply because it ‘mimics’ automatic fire.” Pl. Memo
16.
13
technique easier and safer to control. Pl. Memo 27. As Plaintiffs have explained, the mechanics —
and the “rate of fire” — of bump fire with a bump stock and without a bump stock are identical.
Shooters using bump stocks to bump fire16 do not shoot any faster than shooters bump firing without
bump stocks.17
IV. DEFENDANTS OFFER LITTLE OPPOSITION TO THE PUBLIC INTEREST/PUBLIC

SAFETY PRONGS.
Defendants theorize — without evidence — that the Final Rule furthers public safety, even
though public safety was not the reason for the Final Rule. Opp. 28. On pages 2, 7, 25, 26, and 28
of their Opposition, Defendants allege bump stocks were “used” in Las Vegas. See also 83 Fed. Reg.
66516, 66518. However, on page 27 of their Opposition, Defendants more accurately allege only
“reported use.” Yet Defendants cite no source as proof bump stocks were “used” in Las Vegas, nor
can Plaintiffs find any government source stating as much. Defendants have not contested that ATF
never physically examined the Las Vegas firearms, and thus has no idea whether they were modified
in other ways, such as containing machinegun parts. Compl. ¶¶ 116-124. Nor have Defendants
contested Plaintiffs’ allegation that the government has no evidence of actual use of bump stocks in
any crime.
As for the public interest prong, Defendants ironically malign Plaintiffs’ call for “the proper
exercise of the legislative powers” (Pl. Memo 27), then claim “the public interest is in implementing
congressional priorities” (Opp. 29). Of course, “[i]t is in the public interest for ... an agency to
implement properly the statute it administers.” Mylan Pharms., Inc. v. Shalala, 81 F. Supp. 2d 30, 45
(D.D.C. 2000).
16
See, e.g., https://www.youtube.com/watch?v=VCx1rgxXVKA at 0:17.
17
See, e.g., https://www.youtube.com/watch?v=7RdAhTxyP64 at 0:55.
14
By: /s/ Kerry L. Morgan

Kerry L. Morgan (P32645)
Attorney for Plaintiffs
PENTIUK, COUVREUR & KOBILJAK, P.C.
2915 Biddle Avenue, Suite 200
Wyandotte, MI 48192
Tel: (734) 281-7100
Fax: (734) 281-2524
KMorgan@pck-law.com
Robert J. Olson
William J. Olson
Jeremiah L. Morgan
Herbert W. Titus
WILLIAM J. OLSON, P.C.
370 Maple Avenue West, Suite 4
Vienna, VA 22180
Tel: (703) 356-5070
Fax: (703) 356-5085
wjo@mindspring.com
February 25, 2019
CERTIFICATE OF COMPLIANCE
I hereby certify that this brief is in compliance with Local Civil Rule 7.2(c), which provides that this
brief “shall not exceed four thousand three hundred (4,300) words, to include any headings, footnotes,
citations and quotations. Not to be included in the word count limit are the case caption, cover sheets,
any table of contents, any table of authorities, signature block, attachments, exhibits, and affidavits.”
As directed by the Rule, I have used the “word count” function in Corel Word Perfect 6X5 and
obtained 4,297 countable words.
By: /s/ Kerry L. Morgan
Kerry L. Morgan (P32645)
Attorney for Plaintiffs
February 25, 2019
15
IN THE UNITED STATES DISTRICT COURT

GUN OWNERS )
OF AMERICA, INC., et al., )
)
Plaintiffs, ) Civil Action No. 18-cv-___
)
v. )
)
MATTHEW WHITAKER, et al., )
)
Defendants. )
____________________________________)
Verified Declaration of Richard (Rick) Vasquez
I, Richard (Rick) Vasquez, am competent to state and declare the following based on my
training, experience, personal knowledge, and prior qualification in federal courts as an expert. If
called as a witness, I can testify as follows.
Employment History
1. Currently, I am an independent firearms technology expert employed by those in
the firearm community. In this capacity, I assist manufacturers, dealers, and others in
understanding and complying with firearms laws and regulations. Additionally, I provide
training on the Gun Control Act and the National Firearms Act to civilian and government
organizations.
2. I am a former employee of the Bureau of Alcohol, Tobacco, Firearms and
Explosives (“ATF”). During my 14-year tenure, I held the positions of Acting Chief of the
Firearms Technology Branch (“FTB”), Assistant Chief (Senior Technical Expert) of the FTB,
and Acting Chief of the Firearms Training Branch. I provided instruction for ATF personnel on
the definitions of firearms in the Gun Control Act (“GCA”) and the National Firearms Act
(“NFA”). Additionally, I developed a machinegun identification course and instructed this
course to ATF counsel, special agents, ATF investigators, and numerous federal prosecutors.
3. In these roles, I was responsible for evaluating firearms, non-firearms, and firearm
accessories, consistent with the Standard Operating Procedures (“SOP”) of the FTB. I was the
one who wrote the first generation of these SOPs, and was responsible for overseeing
determinations on whether a particular item constituted a firearm, non-firearm, or merely a
firearm accessory.
4. As a result of my knowledge, experience, and training, I have been qualified as an
expert by numerous federal courts, and have provided testimony in a number of cases.
Background
5. During my tenure at ATF, I was responsible for clarifying the use of a single pull
of the trigger versus a single function of the trigger as it applies to whether a firearm is a
machinegun. Additionally, I was responsible for the technical input and clarification of a
machinegun provided in ATF Ruling 2006-2.
6. In my capacity as the Assistant Branch Chief (Senior Technical Expert) for the
ATF, I evaluated the Slidefire stock, other bump-fire devices, and the bump-fire technique. The
agency concluded, consistent with my Slidefire analysis, that the Slidefire stock was neither a
firearm under the GCA nor a machinegun under the NFA.
7. My conclusion that the Slidefire stock was neither a firearm nor a machinegun
was reviewed and affirmed by ATF Chief Counsel and higher authorities within ATF.
2
Bump Stock Operation
8. The Slidefire, which is a bump stock device, does not fire automatically with a
single pull or function of the trigger.
9. A bump stock does not fire automatically (nor does it fire more than one round)
by the single pull or function of the trigger.
10. Rather, a bump stock is designed to cradle a firearm, allowing it to reciprocate to
the rear utilizing the inertia of the fired cartridge, commonly called “recoil.” At the end of its
rearward travel, without human input, the firearm will stop because it has no energy, springs, or
motors to propel it back forward.
11. When firing a weapon with a bump stock such as a Slidefire attached, the trigger
finger sits on a shelf integral to the stock. The firearm is pushed into the trigger finger by the
shooter’s non-shooting hand/arm. If a shooter can counteract the recoil of the firearm at the end
of the recoil, in order to push the firearm again forward, the shooter can cause the weapon to fire
another shot, with a separate pull of the trigger. It is a separate pull of the trigger because, when
the firearm fires and recoils after the trigger finger has engaged the trigger, the trigger becomes
disengaged from the trigger finger.
12. Because the firearm can slide back and forth in a bump stock such as the Slidefire,
once the timing is mastered, the shooter can pull the trigger to start the firing sequence and, while
pushing the firearm forward from the recoiled position, pull the trigger into his stationary trigger
finger again, causing a second pull of the trigger and a second fired shot. As long as the shooter
continues to engage the trigger through this method of pulls (by the firearm’s recoil) and pushes
(by his support hand), the firearm will fire. This creates an enhanced rate of semiautomatic fire.
3
13. It is important to see, realize, and note that a bump stock such as the Slidefire is
nothing more than a stock that cradles a firearm. There are no mechanical, spring, electrical, or
other components that assist the action of the device. After lengthy analysis, using all of the
standards that have been established by the FTB/ATF, neither the Slidefire nor the technique
called “bump fire” could be classified as a machinegun or a machinegun conversion device, as it
does not fit the definition of a machinegun as stated in the GCA and NFA.
a. Bump stock devices do not permit a continuous firing cycle with a single pull of the
trigger. Rather, the trigger must be released, reset, and fully pulled rearward before a
subsequent round can be fired.
b. To fire, the bump-stock device requires continuous physical manipulation by the
shooter, and is solely dependent on the shooter’s skill.
c. When the shooter maintains constant forward pressure with the non-trigger hand on
the barrel shroud or foregrip of the rifle, and keeps his trigger finger on the device’s
extension ledge with constant rearward pressure, the trigger must be released, reset, and
pulled completely rearward each time a subsequent round is discharged. This mechanical
operation is no different from any factory semi-automatic firearm.
d. The bump stock device does not permit automatic fire by harnessing the recoil energy
of the firearm. Harnessing the energy would require the addition of a device such as a
spring or hydraulics that could automatically absorb the recoil, and then use this energy to
activate the device. If a firearm equipped with a bump stock did harness the recoil
energy, then it would be capable of being fired with one hand — without the use of the
non-shooting hand pushing the firearm forward.
4
e. The cyclic rate of a firearm is neither increased nor decreased by the use of a bump
stock device, as the cyclic rate of a particular firearm is the mechanical rate of fire. This
can be explained in laymen’s terms as how fast the firearm cycles (i.e. loads, locks, fires,
unlocks, ejects), which is an objective — not subjective — mechanical standard.
f. All factory semi-automatic firearms have an inherent ability to be bump fired. The act
of bump firing is a technique, which does not require any device, and can be performed
with the use of one’s finger, belt loop, or rubber band.
g. A firearm in a bump stock/Slidefire stock cannot be a machinegun, because it requires
an individual to apply forward pressure when the firearm is fired. It also requires a
thought process by the individual to continually push the firearm forward, bringing the
trigger into contact with the finger.
Statutory Language
14. The statutory criteria for determining if an item is a machinegun or part or
combination of parts constituting a machinegun is as follows:
a. Machineguns are defined and regulated by the GCA and NFA. Machineguns have
been regulated since 1934 as part of the NFA. Since the inception of the NFA, the
statutory definition of a machinegun has had some changes by Congress. Some of the
changes have added additional components to the definition, such as the addition of
conversion devices, and combinations of parts from which a machinegun can be
assembled.
b. Currently, the complete definition of a machinegun is as follows: As defined in 26
United States Code, Chapter 53, section 5845(b): Machinegun. The term ‘machinegun’
5
means any weapon which shoots, is designed to shoot, or can be readily restored to
shoot, automatically more than one shot, without manual reloading, by a single function
of the trigger. The term shall also include the frame or receiver of any such weapon, any
part designed and intended solely and exclusively, or combination of parts designed and
intended, for use in converting a weapon into a machinegun, and any combination of
parts from which a machinegun can be assembled if such parts are in the possession or
under the control of a person.
15. There are several elements within the definition of a machinegun, and each
will be explained.
a. “any weapon which shoots” If you have a weapon that, when loaded, the trigger is
pulled with “a single function of the trigger,” and it shoots continuously, it is a
machinegun capable of automatic fire. This is very easy to understand, and this section is
used to classify any weapon that shoots automatically for whatever reason. A firearm
does not have to empty a magazine automatically when you pull the trigger; if it shoots
multiple rounds when the trigger is pulled only once, it is a machinegun.
b. “is designed to shoot” Whether a firearm is made to be a machinegun from the
factory or modified into a machinegun configuration with design features that allow it to
accept machinegun components designed for automatic fire, it is a machinegun whether it
shoots automatically or not. Machineguns such as the AK47, M16, and M249 were
designed by the manufacturer to have the capability of shooting automatically. These
types of weapons have design features that differ from their semiautomatic variants. The
6
receivers of these machineguns will generally accept different parts than will a
semiautomatic version.
c. “or can be readily restored to shoot” This applies to weapons that previously shot
automatically because of design features that allowed the weapon to shoot automatically,
yet in their current condition do not shoot automatically, but can be easily restored to
automatic fire. This section has also been applied to machinegun receivers that had been
severed into sections with a tool such as a band saw, with the intent of making it appear
to be destroyed so it could be removed from the classification of machinegun, but with
the intent of being reconstructed as a machinegun at a later date. For example, a
machinegun receiver that is cut in half with a band saw is not destroyed, as it can be
easily welded back to a complete receiver.
d. “The term shall also include the frame or receiver of any such weapon” A
firearm receiver with the design features of a machinegun is a machinegun all by itself.
Those features are the mechanical design that is imparted into the receiver that allows the
firearm to accept machinegun components, which in turn allow it to shoot automatically.
For example, an AK47 receiver has a hole in the proper location and proper dimension to
accept an automatic sear retaining pin. This design feature makes it a machinegun
receiver. Also, the M16 receiver has a hole in the proper location to accept a machinegun
sear pin. If all of the components of a machinegun are thrown away, it can’t shoot, as it is
only a receiver. However, that receiver still has the design features to make a
machinegun, and it is a machinegun as defined. Taking a semiautomatic variant receiver
without such features, and modifying the receiver into the same configuration as a
7
machinegun receiver, would change the classification of the semiautomatic receiver to a
machinegun receiver.
e. “Any part designed and intended solely and exclusively, or combination of parts
designed and intended, for use in converting a weapon into a machinegun” These
are commonly called conversion devices. These devices are generally a modified part for
a semiautomatic weapon, or a fabricated part that replicates the function of an automatic
sear. These conversion devices can be “dropped in” to a semiautomatic weapon with
little to no fitting. Since the only purpose of these parts is to make a semiautomatic
weapon shoot automatically, they are classified as machineguns. For example, the AR15
Drop in Auto Sear (DIAS) is a machinegun all by itself. It has one purpose, and that is to
replicate the M16 machinegun sear.
f. “or combination of parts designed and intended” In addition to devices like the
DIAS, the M2 conversion unit, for example, has 7 parts designed to convert an M1
carbine into a machinegun. A person must possess all parts for the combination to be
considered a machinegun. The Akins Accelerator, which consists of a stock, spring, and
a reciprocating device, and is used to convert a Ruger 10/22 into a machinegun, is also
considered to be a conversion device.
g. “and any combination of parts from which a machinegun can be assembled if
such parts are in the possession or under the control of a person.” This is a broad
section of the definition. If you are making a semiautomatic variant of a machinegun, yet
you have all of the components necessary to make a machinegun, you need to proceed
with caution. There are circumstances under which an individual is in possession of
8
everything it takes to fabricate a machinegun. Possession of parts or plans for a
machinegun are not prohibited. However, for example, if a person is in possession of a
semiautomatic weapon, a template showing where to drill the hole to convert the
semiautomatic weapon into a machinegun, the drill bits and fixtures to ensure the holes
were drilled to the proper dimension and location, and the machinegun parts to assemble
the machinegun, the person could be in possession of a machinegun under this section of
the definition. This is known as “constructive possession.”
ATF Processes & Procedures
16. The definitions found in the NFA, the GCA, historical letter opinions, rulings, and
SOPs housed in the FTB are used as a standard to classify any firearm, part, or accessory. Along
with these stated parameters, there has also been a human element in making these
classifications. Typically, many of ATF’s classifications are simple, such as when a firearm
either shot automatically, or when it was manufactured with the design characteristics of a
machinegun.
17. However, when there was a new design such as a Slidefire bump stock, a more
rigorous process was followed, beginning with an analysis by the technician assigned to the
product, up to and including the Director of ATF, the Attorney General’s office, and even
congressional staffers.
18. In 2006, during my tenure at ATF, FTB was responsible for determining whether
the Akins Accelerator was a machinegun, with its spring-activated stock which, when attached to
a firearm, produced automatic fire. This ruling laid the groundwork for a definition of devices
9
that later would be classified as machineguns because of their ability to continue to fire, without
aid from the shooter, and by a single pull of the trigger.
19. As a result of this process, ATF carefully prepared and issued ATF Ruling 2006-
2, which states: “The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) has been
asked by several members of the firearms industry to classify devices that are exclusively
designed to increase the rate of fire of a semiautomatic firearm. These devices, when attached to
a firearm, result in the firearm discharging more than one shot with a single function of the
trigger. ATF has been asked whether these devices fall within the definition of machinegun under
the National Firearms Act (NFA) and Gun Control Act of 1968 (GCA). As explained herein,
these devices, once activated by a single pull of the trigger, initiate an automatic firing cycle
which continues until either the finger is released, or the ammunition supply is exhausted.
Accordingly, these devices are properly classified as a part ‘designed and intended solely and
exclusively, or combination of parts designed and intended, for use in converting a weapon into
a machinegun’ and therefore machineguns under the NFA and GCA.”
20. Years later, the Slidefire bump stock went through this same level of scrutiny, to
ensure ATF was making the correct decision. After the initial review by the technician, it was
reviewed internally by me as the Assistant Chief and technical advisor. It was further reviewed
by the ATF Office of Chief Counsel (OCC), Deputy Assistant Directors (DADs), Assistant
Directors (ADs), and the ATF Director. Each person in the chain of command reviewed the
device, and determined and agreed that this bump stock was not a machinegun as defined in the
statutes and the regulations. The Slidefire did not fire automatically. It did not fire more than
one shot with a single function or single pull of the trigger.
10
21. ATF’s claim today, that all of its prior work on bump stocks was somehow
careless or thoughtless, “did not include extensive legal analysis,” and “does not reflect the best
interpretation of the term ‘machinegun,’” is without support.
Analysis of ATF’s Regulation
22. ATF’s regulation uses the term “harnesses the energy” in describing the operating
system of a bump stock such as the Slidefire stock. Yet all semiautomatic firearms operate from
the action of harnessing the energy of the gases or from blow back. Action of the gases is when a
firearm uses a portion of the gas from the ignited gunpowder to cycle the firearm, or it uses a
blow back method of operation. Both of these systems “harness” the energy of the fired cartridge
to cycle the firearm.
23. When a semiautomatic firearm fires, it cycles a fresh round of ammunition and
resets mechanical components, and the shooter releases the trigger sufficiently to allow the fire
control components to reset.
24. Using the new standard provided in ATF’s regulation — that the bump stock such
as the Slidefire “harnesses” the energy to shoot automatically — places all semiautomatic
firearms at risk of being classified as machineguns.
25. The only way ATF could protect all semiautomatic weapons from being classified
as machineguns under the new rule is to set a standard for the maximum rate of fire before a
firearm is classified as a machinegun. For example, a semiautomatic would not be regulated as a
machinegun if it did not fire more than XX rounds per minute. Of course, it is entirely unclear
who would set that standard, and how would it be regulated.
11
26. The foundation of ATF’s regulation appears to be an attempt to implement a rule
that could later be modified to regulate all semiautomatic rifles as machineguns. Yet a bump
stock like the Slidefire is an accessory, without any energy source other than the shooter applying
unspecified forward pressure.
27. ATF’s regulation is deceptive, misleading, and wrong in the analysis of the bump
stock/Slidefire system of operation.
Analysis of Bump Stocks
28. My professional opinion on whether or not a bump stock such as the Slidefire
stock is a machinegun when affixed to a compatible semiautomatic firearm is as follows:
a. Will a firearm equipped with a bump stock such as a Slidefire stock fire
“automatically” as that term is defined in the statute?
No. A bump stock such as the Slidefire requires the shooter to push the firearm forward
after every shot, bringing the trigger into contact with the trigger finger. Contrary to
ATF’s claim, there is no feature of a bump stock such as the Slidefire that “harnesses the
firearm’s recoil energy in a continuous back-and-forth cycle that allows the shooter to
attain continuous firing after a single pull of the trigger....” This language from the
ATF’s Notice of Proposed Rulemaking leaves out the fact that the shooter must gauge the
appropriate amount of force, and push the firearm forward when the firearm reaches the
end of its recoil cycle.
b. Will a bump stock such as the Slidefire fire more than one round with a single
function of the trigger?
12
after every shot, bringing the trigger into contact with the trigger finger each time a shot is
fired.
c. Will a bump stock such as the Slidefire fire more than one round with a single pull of
the trigger?
after every shot, bringing the trigger into contact with the trigger finger.
d. Will a bump stock such as the Slidefire fire more than one round without a trigger
reset?
No. All semiautomatic firearms require that triggers be reset before the trigger can be
pulled again. In the Slidefire, the trigger separates from the trigger finger upon recoil,
which provides sufficient space for the trigger to reset. If the shooter does not properly
push the firearm forward again, it will not fire a second shot.
e. Will a bump stock such as the Slidefire fire more than one round when the trigger is
pulled with one hand only, and the firearms is not touched by the shooter’s other hand?
No. The function of a bump stock requires a mental process of consciously pushing the
firearm forward to counteract recoil, in order to re-engage the trigger finger.
f. Will a bump stock such as the Slidefire fire as a result of a “Self-Acting or
Self-Regulating Mechanism?”
No. There is not a mechanical, electrical, hydraulic, or spring activated component that
causes a firearm in the cradle of a bump stock such as the Slidefire to travel forward to
engage the trigger. This is all a conscious process of the shooter pushing the firearm
13
forward, dependent entirely on variables such as the shooter’s skill, grip, pressure,
posture, and thought process.
g. Will the Slidefire fire by “harnessing the recoil energy of the semiautomatic
firearm?”
No. The following statement in ATF’s Notice of Proposed Rulemaking is false and
misleading: “a device that allows a semiautomatic firearm to shoot more than one shot
with a single pull of the trigger by harnessing the recoil energy of the semiautomatic
firearm to which it is affixed so that the trigger resets and continues firing without
additional physical manipulation of the trigger by the shooter. When a shooter who has
affixed a bump-stock-type device to a semiautomatic firearm pulls the trigger, that
movement initiates a firing sequence that produces more than one shot. And that firing
sequence is ‘automatic’ because the device harnesses the firearm's recoil energy in a
continuous back-and-forth cycle that allows the shooter to attain continuous firing after a
single pull of the trigger, so long as the trigger finger remains stationary on the device’s
ledge (as designed). Accordingly, these devices are included under the definition of
machinegun and, therefore, come within the purview of the NFA.”
It is not the bump stock “device” that harnesses recoil energy; it is the shooter’s body that
harnesses the recoil energy. The firearm only moves rearward in a bump stock such as
the Slidefire due to the inertia of the recoil. After the initial firing of the firearm, if a
shooter does not consciously push the firearm forward, the firearm will stop in the stock
at the end of recoil. The action of the shooter, physically and with a mental thought
pushing the firearm forward in the cradle, allows it to shoot a second round.
14
h. What is your opinion as to whether a device is a machinegun because it “mimics” or
gives the appearance of automatic fire?
I can mimic the call of a goose, but that does not make me a goose. A firearm either has
the features of a machinegun listed in the text of the statute, or it does not. A bump stock
like the Slidefire is a stock that holds a firearm in a cradle and that, if used as designed,
allows the shooter to increase his rate of semiautomatic fire.
I declare under penalty of perjury that the foregoing is true and correct. Executed on
3 2018.
December __,
____________________________
Richard Vasquez
15

Petition For Writ of Mandamus Complete

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Petition For Writ of Mandamus Complete

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WILLIAM J. OLSON, P.C.

HERBERT W. TITUS VIENNA, VIRGINIA 22180-5615

March 19, 2019

Office of the Clerk

Re: Gun Owners of America, Inc., et al. v. Barr, et al.

Attached please find an emergency motion. Time is of the essence

3. Order that the Governmental Defendants respond to Plaintiffs’ instant Motion by

4. Grant other relief which is warranted under these circumstances.

/s/ Robert J. Olson

cc: Eric J Soskin, Attorney for Defendants

EMERGENCY PETITION FOR A WRIT OF MANDAMUS TO

KERRY L. MORGAN ROBERT J. OLSON*

March 19, 2019

Disclosure of Corporate Affiliations

Pursuant to 6th Cir. R. 26.1, Gun Owners of America, Inc., et al.

I certify that on _____________________________________ the foregoing document was served on all

Issues Presented for Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Background & Summary of Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. A Writ of Mandamus Should Issue Here . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

2. A Stay of ATF’s Regulation Pending Appeal Is the Appropriate

3. Appellants Meet the Criteria for a Stay Pending Appeal . . . . . . . . . . . . . . . 9

5 U.S.C. Section 706 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 13

26 U.S.C. Section 5845(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

28 U.S.C. Section 1651(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6

Chevron v. Nat. Res. Def. Council, 467 U.S. 837 (1984) . . . . . . . . . . . . . . . . . . . 13

Guedes v. ATF, (D.C. Cir. Case #19-5042). . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11

In re Perrigo Co., 128 F.3d 430 (6th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

In re Dutton, 1993 U.S. App. LEXIS 29300, (6th Cir. 1993) . . . . . . . . . . . . . . . . . . 7

Michigan Coalition of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d

Mylan Pharms., Inc. v. Shalala, 81 F. Supp. 2d 30 (D.D.C. 2000) . . . . . . . . . . . . 14

United States v. Apel, 571 U.S. 359 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Pursuant to Rule 21 of the Federal Rules of Appellate Procedure, Petitioners

below, directing the court to enjoin implementation of Defendants’ Final Rule

Additionally, Pursuant to Rule 8 of the Federal Rules of Appellate

on Petitioners’ complaint. Pursuant to FRAP 8(a)(2)(A)(ii), Petitioners assert that

This case involves a challenge by Gun Owners of America, et al.

(“Petitioners”) to the Bureau of Alcohol, Tobacco, Firearms, and Explosives’

as machineguns, banning their private possession, and ordering their destruction.

million of lawfully owned property, or risk felony prosecution. That simply

cannot be allowed to happen, especially while Petitioners’ claims have yet to be

Administrative Procedures Act, 5 U.S.C. Section 706.

ISSUES PRESENTED FOR REVIEW

the wholesale destruction of over $100 million of property, owned by hundreds of

thousands of law-abiding Americans, by March 26, 2019?

BACKGROUND & SUMMARY OF ARGUMENT

On December 26, 2018, Defendants published in the Federal Register a

Final Rule purporting to further define the statutory definition as to what

owners of what Defendants estimate to be 520,000 bump stocks (Petitioners

authority to promulgate under the Administrative Procedures Act (“APA”).1

to Expedited Briefing Schedule” on January 8, 2019. ECF # 22. The parties

argument in early February 2019.

argument for March 11, 2019. However, in response to a letter by Petitioners

Oral argument was heard by the district court on March 6, 2019 in

Kalamazoo, Michigan. At the culmination of oral argument, the district court

However, no decision has been forthcoming. On Monday morning, March 18,

as to issuance of an opinion, in light of the Final Rule’s effective date, but to no

before the Final Rule becomes effective.

members and supporters, frantically asking for advice on their continued

implementation of the Final Rule), or otherwise destroy their property so as not to

claims are adjudicated in the courts.

1. A Writ of Mandamus Should Issue Here.

This court has jurisdiction to issue a writ of mandamus pursuant to 28

the writ is otherwise “appropriate under the circumstances.” Cheney v. United

several specific factors in considering petitions for a writ of mandamus, including

prejudiced in a way not correctable on appeal. (This guideline is closely related to

here). Petitioners clearly meet both of these relevant tests.