Guedes Prince Brief

USCA Case #19-5042 Document #1775764 Filed: 03/04/2019 Page 1 of 40
No. 19-5042
Consolidated with 19-5043, 19-5044
______________________________
UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT
______________________________
DAMIEN GUEDES, et al.,
Appellants,
v.
BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, et al.,
Appellees.
______________________________
On Appeal from the United States District Court

for the District of Columbia,
No. 1:18-cv-02988 (DLF)
______________________________
Brief for Appellants Damien Guedes, Shane Roden, Firearms Policy

Foundation, Madison Society Foundation, Inc., and Florida Carry, Inc.
______________________________
Joshua Prince, Esq. Erik S. Jaffe

Adam Kraut, Esq. Schaerr | Jaffe LLP
Civil Rights Defense Firm, P.C. 1717 K Street NW
646 Lenape Road Suite 900
Bechtelsville, PA 19505 Washington, DC 20006
888-202-9297 (t) 202-787-1060 (t)
Joshua@princelaw.com ejaffe@schaerr-jaffe.com
AKraut@princelaw.com Of Counsel
Counsel for Plaintiffs-Appellants
(Page 1 of Total)
CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES
1. Parties and Amici
Pursuant to Circuit Rule 28(a)(1)(A), Appellants Damien Guedes, Shane
Roden, Firearms Policy Foundation, Madison Society Foundation, Inc., and
Florida Carry, Inc. certifies that the parties and amici curiae in this case are as
follows:
Damien Guedes
Shane Roden
Firearms Policy Foundation
Madison Society Foundation, Inc.
Florida Carry, Inc.
Firearms Policy Coalition, Inc.
Bureau of Alcohol, Tobacco, Firearms and Explosives
Matthew Whitaker
Thomas E. Brandon
United States of America
2. Ruling Under Review
The ruling under review is the district court order and accompanying
memorandum opinion denying Guedes, et al. a preliminary injunction precluding
(Page 2 of Total) ii
the implementation and enforcement of the new regulation. Judge Dabney L.
Friedrich of the D.C. District Court issued both the order and opinion on February
25, 2018. The order is entry 26 on the district court docket. The opinion does not
yet have an official citation but can be found on the district court docket as entry
27.
3. Related Cases
As Codrea, et al., v. Barr, et al., No. 19-5044, has been consolidated with
this matter, there are no other known related cases. This current matter has not
been before this Court before.
/s/ Adam Kraut

Adam Kraut, Esq.
Counsel of Record
D.C. Bar No. PA0080
Civil Rights Defense Firm, P.C.
646 Lenape Road
Bechtelsville, PA 19505
(888) 202-9297 (t)
(610) 400-8439 (f)
AKraut@CivilRightsDefenseFirm.com
(Page 3 of Total) ii
DISCLOSURE OF CORPORATE AFFILIATIONS

AND FINANCIAL INTEREST
D.C. Circuit Case Number: 19-5042

Case Name: Guedes, et al., v. Bureau of Alcohol, Tobacco, Firearms and
Explosives, et al.
Name of counsel: Joshua Prince, Esq., Adam Kraut, Esq., Erik S. Jaffe, Esq.
Pursuant to D.C. Cir. L.A.R. 26.1, Firearms Policy Foundation, Madison Society
Foundation, Inc., and Florida Carry, Inc. makes the following disclosures:
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
/s/ Adam Kraut

Adam Kraut, Esq.
D.C. Bar No. PA0080
Joshua Prince, Esq.
D.C. Bar No. PA0081
646 Lenape Road
610-845-3803 (t)
610-845-3903 (f)
AKraut@princelaw.com
Joshua@princelaw.com
(Page 4 of Total) iii

TABLE OF CONTENTS
CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES ....... ii

1. Parties and Amici ........................................................................................... ii
2. Ruling Under Review .................................................................................... ii
3. Related Cases ................................................................................................. ii
DISCLOSURE OF CORPORATE AFFILIATIONS ........................................ iii
AND FINANCIAL INTEREST ............................................................................ iii
GLOSSARY OF ABBREVIATIONS ................................................................ viii
INTRODUCTION .................................................................................................. 1
JURISDICTIONAL STATEMENT ...................................................................... 3
STATEMENT OF ISSUES .................................................................................... 4
STATUTES AND REGULATIONS ..................................................................... 4
STATEMENT OF THE CASE .............................................................................. 4
SUMMARY OF THE ARGUMENT .................................................................... 9
STANDARD OF REVIEW .................................................................................. 11
ARGUMENT ......................................................................................................... 11
I. Appellants are Likely to Succeed on the Merits........................................ 11
A. The Final Rule Contradicts the Plain Statutory Definition of a
Machinegun ............................................................................................. 11
B. The Rule of Lenity Forecloses Executive Expansion of Ambiguous
Criminal Statutes .................................................................................... 20
C. The Final Rule Is Unreasonable, Arbitrary, and Capricious ............. 22
II. Irreparable Injury ...................................................................................... 26
III. No Harm to Appellees ................................................................................ 27
IV. The Public Interest Favors Agency Compliance with Statutory
Limits ........................................................................................................... 27
CONCLUSION ..................................................................................................... 28
(Page 5 of Total) iv
CERTIFICATE OF COMPLIANCE ................................................................. 30

CERTIFICATE OF SERVICE ........................................................................... 31
(Page 6 of Total) v
TABLE OF AUTHORITIES
Cases
Animal Legal Def. Fund, Inc. v. Perdue, 872 F.3d 602 (2017 D.C. Cir.)............... 23
Burrage v. United States, 571 U.S. 204 (2014) ...................................................... 22
Butte Cty v. Hogen, 613 F.3d 190 (D.C. Cir. 2010).......................................... 23, 24
*Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290 (D.C. Cir. 2006) 11,
26, 28
CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738 (D.C. Cir. 1995). 11
Colautti v. Franklin, 439 U.S. 379 (1979) .............................................................. 19
Crandon v. United States, 494 U.S. 152 (1990) ..................................................... 21
East Bay Sanctuary Covenant, et al. v. Donald J. Trump, et al., No. 18-17274,
2018 WL 6428204 (9th Cir. Dec. 7, 2018) ........................................................... 23
Fleming v. Moberly Milk Products Co., 160 F.2d 259 (D.C. Cir. 1947) ................ 28
Garnett v. Zellinger, 313 F.Supp.3d 147 (D.D.C. 2018) ........................................ 27
Gun Owners of America, Inc., et al., v. William P. Barr, et al., No. 1:18-cv-01429,
W.D. Mich, South Division ................................................................................. 20
Hollis v. Lynch, 827 F.3d 436 (5th Cir. 2016) ........................................................ 13
Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) ....................................................... 13
League of Women Voters v. Newby, 838 F.3d 1 (D.C. Cir. 2016) .................... 11, 27
Lewis v. United States, 445 U.S. 55 (1980) ............................................................ 21
Liparota v. United States, 471 U.S. 419 (1985)...................................................... 20
Mova Pharm. Corp. v. Shalala, 140 F.3d 1060 (D.C. Cir. 1998) ........................... 11
*Staples v. United States, 511 U.S. 600 (1994)......................................................... 13
United States v. Apel, 571 U.S. 359 (2014) ............................................................ 22
United States v. Gradwell, 243 U.S. 476 (1917) .................................................... 21
*United States v. McGoff, 831 F.2d 1071 (D.C. Cir. 1987) ...................................... 22
Authorities principally relied upon are marked with an *
(Page 7 of Total) vi
*United States v. Thompson/Ctr. Arms Co., 504 U.S. 505 (1992) ............................ 22
*United States v. Universal C. I. T. Credit Corp., 344 U.S. 218 (1952)................... 21
Util. Air Regulatory Grp. v. E.P.A., 572 U.S. 302 (2014) ...................................... 18
W. Clark Aposhian v. William P. Barr, et al., No. 2:19-cv-00037, D. Utah, Central
Division ............................................................................................................... 22
Wisconsin Cent. Ltd. v. United States, 138 S.Ct. 2067 (2018) ............................... 19
Statutes
18 U.S.C. § 921 ......................................................................................................... 1
*18 U.S.C. § 921(a)(23) ........................................................................................ 1, 11
26 U.S.C. § 5801 ....................................................................................................... 1
26 U.S.C. § 5845(b) .................................................................................................. 1
28 U.S.C. § 1292(a)(1) .............................................................................................. 3
28 U.S.C. § 1331 ....................................................................................................... 3
5 U.S.C. § 702 ........................................................................................................... 3
5 U.S.C. § 704 ........................................................................................................... 3
Other Authorities
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 81 (2012) .................................................................................................... 13
Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315 (2000)............. 21
George C. Nonte, Jr., Firearms Encyclopedia 13 (Harper & Rowe 1973............... 15
Webster’s II New Riverside-University Dictionary (1988) .................................... 15
Regulations
27 C.F.R. § 478.11 ................................................................................................ 1, 8
27 C.F.R. § 479.11 ................................................................................................ 1, 8
27 C.F.R. § 479.182 ................................................................................................ 27
(Page 8 of Total) vii

GLOSSARY OF ABBREVIATIONS
Abbreviation Definition
ATF Bureau of Alcohol, Tobacco, Firearms, and Explosives
FPC Firearms Policy Coalition
FPF Firearms Policy Foundation
GCA Gun Control Act
NFA National Firearms Act
NRPM Notice of Proposed Rulemaking
(Page 9 of Total) viii

INTRODUCTION
The term “machinegun” 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.
18 U.S.C. § 921(a)(23) and 26 U.S.C. § 5845(b). Prior to the current rulemaking,
the regulatory definition of a machine gun simply mirrored the statutory definition.
27 C.F.R. § 478.11; 27 C.F.R. § 479.11.
ATF concedes that this definition in the Gun Control Act, 18 U.S.C. § 921,
et seq. (“GCA”) and the National Firearms Act, 26 U.S.C. § 5801, et seq. (“NFA”),
“alone determines whether a firearm is a machinegun.” Fed. Reg. 66533-34. Yet
the Final Rule considerably expands that definition to cover so-called bump-stock-
type devices admittedly not covered by the language of the statute itself and
requires citizens to surrender or destroy such devices under threat of felony
prosecution.
The district court held that the statutory words “single function of the
trigger” and “shoot ... automatically” in the above definition were ambiguous and
approved ATF’s expansive redefinition of those words to encompass any process
(Page 10 of Total) 1
using recoil to reset a trigger thus allowing it to be reengaged by the shooter with
greater speed.
Those redefinitions neither fit the words of the statute nor comport with the
mechanical operation of triggers on lawful semi-automatic firearms, and are
arbitrary and capricious. A “single function of the trigger” involves the mechanical
movement of the mechanism that constitutes the trigger. It is complete when the
trigger traverses its range of motion and initiates the firing sequence. A separate
function occurs when the trigger is released and returns to its starting point to reset.
Any other interpretation of that phrase is contrary to the contemporary
understanding of those words and yields absurd results.
The word “automatically” likewise means by mechanical process without
further human intervention and to “shoot … automatically” means to continue to
fire without further human action beyond a single function of the trigger. A bump-
stock-type device does not involve a single function of the trigger, but rather,
multiple functions – engagements and releases of the trigger – all mediated by the
human intervention of repeatedly forcing the gun body and trigger forward to
reengage the trigger after it has been returned to its starting position and has reset.
Whether an individual pulls their finger against a trigger or pushes the firearm
forward to meet their finger, human intervention occurs, and nothing is
accomplished “automatically.” And nothing alters the fact there are multiple
functions of the trigger.
In any event, even if the statutory definition was thought to be ambiguous in
connection with the various ways lawful semi-automatic firearms can be fired with
increased speed, the rule of lenity would preclude ATF’s expansive interpretation
of a criminal statute.
Appellants readily satisfy the other requirements for a preliminary
injunction, and nothing in the opinion below suggests otherwise. Confiscation or
destruction of property under threat of felony is irreparable injury and there is no
countervailing equity or public interest that outweighs the need to maintain the
status quo for the pendency of this suit.
JURISDICTIONAL STATEMENT
District Court jurisdiction is pursuant to 5 U.S.C. §§ 702 and 704 and 28
U.S.C. § 1331, based on claims under the Administrative Procedure Act and the
Constitution and laws of the United States. This Court has jurisdiction under 28
U.S.C. § 1292(a)(1). The district court denied Appellants an injunction on
February 25, 2018. JA016. Appellants noticed appeal the same day. JA007.
STATEMENT OF ISSUES
The issues on appeal are:
1. Whether the District Court erred in concluding ATF acted within its
authority when expanding the definition of a machinegun?
2. Whether the rule of lenity applies if the definition of machinegun was

ambiguous?
STATUTES AND REGULATIONS
Statutory authorities are included in the addendum to this brief.
STATEMENT OF THE CASE

On March 29, 2018, ATF published a Notice of Proposed Rulemaking
(“NPRM”) that proposed to expand the regulatory definition of a “machinegun” to
include previously legal so-called “bump stocks”. 1
As relevant to this litigation, legal bump-stock-type devices do not change
the function of a firearm to which they are attached. For example, the fire control
group of a semi-automatic AR-15 has three main components: the trigger,
disconnector, and hammer. Image 1.
1
83 Fed.Reg. 13442; https://www.federalregister.gov/documents/2018/03/29/2018-06292/bump-
stock-type-devices.
When the firearm is set to fire, the hammer rests on the internal edge of the
trigger. Image 2. Pulling the trigger – a single function – releases the hammer,
which strikes the firing pin and results in a single round being discharged. Images
3-4.
While the empty casing is being ejected from the firearm, the bolt carrier slides
rearwards and the hammer is pushed back towards the disconnector. The
disconnector grabs and holds the hammer, preventing it from firing another round
without the trigger being “reset.” Images 5-6. Indeed, unlike with a machinegun,
keeping the trigger depressed actually prevents gun from firing again because the
disconnector keeps hold of the hammer.
A second function of the trigger occurs when the trigger is released causing the
disconnector to let go of the hammer, which then again rests on the “reset” edge of
the trigger, awaiting the next function of the trigger to initiate the next firing
sequence. Image 7.
See animation at http://publicfiles.firearmspolicy.org/ar15.gif. Enlarged individual
images are also reproduced in the attached Addendum at 43-49.
A bump-stock-type device does not change these functions. Regardless
whether the shooter “pulls” their finger against the trigger or pushes the firearm
and trigger forward against a stationary finger, neither the operation of the trigger’s
component parts nor the operation of the firearm vary. Each round discharged is
the result of a single function of the trigger initiated by the manual act of putting
pressure on the reset trigger.
Notwithstanding the undisputable mechanical facts of trigger operation,
ATF’s NPRM stated, inter alia, that:
1) [A] bump-stock-type device … harnesses the recoil energy to slide

the firearm back and forth so that the trigger automatically re-
engages by “bumping” the shooter’s stationary trigger finger
without additional physical manipulation of the trigger by the
shooter. The bump-stock-type device functions as a self-acting and
self-regulating force that channels 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 extension ledge
(as designed). No further physical manipulation of the trigger by
the shooter is required; 2
2) These bump-stock-type devices are generally designed to operate

with the shooter … maintaining constant forward pressure with the
non-trigger hand on the barrel-shroud or fore-grip of the rifle, and
maintaining the trigger finger on the device’s extension ledge with
constant rearward pressure. The device itself then harnesses the
2
83 Fed.Reg. 13443.
recoil energy of the firearm, providing the primary impetus for

automatic fire; and 3
3) [I]ndividuals wishing to replicate the effects of bump-stock-type

devices could also use rubber bands, belt loops, or otherwise train
their trigger finger to fire more rapidly. To the extent that
individuals are capable of doing so, this would be their alternative
to using bump-stock-type devices. 4
Several of those assertion were palpably false and self-contradictory, not the
least of which are the claims that a bump-stock-style device uses “recoil energy to
slide the firearm … forth,” that there is “no further physical manipulation of the
trigger by the shooter,” and that the device itself harnesses recoil energy to provide
the “primary impetus” for automatic fire. Indeed, in the second quote above, ATF
admits that it is the shooter’s volitional and manual “constant forward pressure” on
the front of the weapon, and not the backward recoil, that actually pushes the
weapon and trigger “forth” after each shot and causes the next manipulation and
hence function of the trigger.
Notwithstanding its erroneous and contradictory description of the operation
of bump-stock-style devices, the NPRM proposed adding two sentences to the
definition of “machine gun” in 27 C.F.R. §§ 478.11 and 479.11 as follows:
For purposes of this definition, the term “automatically” as it modifies

“shoots, is designed to shoot, or can be readily restored to shoot,”
means functioning as the result of a self-acting or self-regulating
mechanism that allows the firing of multiple rounds through a single
3
Id. at 13446.
4
Id. at 13454.
function of the trigger; and “single function of the trigger” means a

single pull of the trigger. The term “machine gun” includes bump-
stock-type devices, i.e., devices that allow 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.
Appellants Firearms Policy Coalition (“FPC”) and Firearms Policy
Foundation (“FPF”) commented in opposition to the NPRM. Appellant Guedes
owns a bump-stock-type device, that ATF had previously determined was lawful.
On December 18, 2018, Appellants sued and sought a preliminary
injunction. The Complaint seeks declaratory and injunctive relief alleging, inter
alia, that ATF had exceeded its authority and acted arbitrarily and capriciously.
The district court denied the motion for preliminary injunction, applying
Chevron and finding the statutory definition of a machinegun was ambiguous and
ATF’s regulation was a permissible reinterpretation of the definition. JA020, 033-
044, and 046-047. The district court did not address the other factors for obtaining
a preliminary injunction.
SUMMARY OF THE ARGUMENT
The words “single function of the trigger” and “automatically” in the
statutory definition of a machinegun are not ambiguous as relevant to this case and
the District Court erred in accepting ATF’s proposed expansion of those words as
being permissible and reasonable.
The words “single function of the trigger” plainly look to the movement and
operation of the trigger itself, not the manner in which an individual actuates the
operation of the trigger. Similarly, the words “shoot … automatically” must be
read to require mechanical successive firing without further input from the
operator. ATF and the court below ignored these fundamentals, causing the
definition to be internally incoherent and to encompass virtually all semi-automatic
firearms, contrary to express statutory design and the original public meaning of
the language as used and understood by Congress. ATF’s alternative reading is
unreasonable and not a ground for finding or resolving ambiguity.
If, however, the definition of machinegun is ambiguous, then the rule of
lenity precludes ATF’s expanding the reach of a criminal statute. Congress must
define federal crimes and any ambiguity must be resolved in favor of the narrower
alternative. Appellants thus have a substantial likelihood of success on the merits.
The remaining elements for injunctive relief are not in serious dispute.
Deprivation of property or the danger of severe criminal penalties are irreparable
injuries, as conceded by Appellees. The equities favor Appellants for similar
reasons and because Appellees’ interests are not materially harmed. And the public
interest favors precluding agency expansion of crimes beyond the bounds clearly
adopted by Congress.
STANDARD OF REVIEW
A preliminary injunction movant must show 1) substantial likelihood of
success on the merits, 2) irreparable injury, 3) no substantial injury to others, and
4) that the injunction furthers the public interest. Mova Pharm. Corp. v. Shalala,
140 F.3d 1060, 1066 (D.C. Cir. 1998). The district court’s “legal conclusions as to
each of the four factors” is reviewed de novo, and “its weighing of them for abuse
of discretion.” League of Women Voters v. Newby, 838 F.3d 1, 6-7 (D.C. Cir.
2016). Each of the factors should be balanced together, CityFed Fin. Corp. v.
Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995), and if “the
showing in one area is particularly strong, an injunction may issue even if the
showings in other areas are rather weak.” Chaplaincy of Full Gospel Churches v.
England, 454 F.3d 290, 297 (D.C. Cir. 2006).
ARGUMENT
I. Appellants are Likely to Succeed on the Merits
A. The Final Rule Contradicts the Plain Statutory Definition of a

Machinegun
Congress 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.” 18 U.S.C.
§ 921(a)(23). Also included are “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.” Id.
The statutory language is plain and unambiguous regarding the issues here,
as ATF has acknowledged. 83 Fed. Reg. at 66533-34 (“the statutory definition
alone determines whether a firearm is a machinegun”; “automatically” and “single
function of the trigger” are unambiguous as they “accord with the plain meaning of
those terms”) (emphasis added).
Regarding what constitutes a single function of the trigger, the primary
function of the trigger is to release the hammer in response to an external or
manual input moving the trigger from the one position to another. That function is
complete once the hammer is released. A second function occurs when the release
of the trigger uncouples the disconnector from the hammer and the hammer is
again held back by the reset trigger. Each of those are a delineated function,
initiated by the movement of the trigger backwards or forwards. What matters is
the mechanical operation of the “trigger,” not the manner in which that operation is
initiated. Regardless of the mechanism by which the shooter acts to move the
trigger – whether by pulling on it with a moving finger or pushing/pulling the gun
against a stationary finger – it is the movement of the trigger releasing the hammer,
or the movement of the trigger releasing the disconnector and resetting the hammer
on the trigger awaiting further input, that define the boundaries of two distinct
“single” functions of the trigger. Only the first such function actually fires a shot.
These meanings are confirmed by the original public understanding of the
statutory terms at the time of their adoption. Cf. Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts 81 (2012) (discussing
original public meaning of Constitution). As reflected in the debates surrounding
passage of the law, persons at the time understood the phrase “single function of
the trigger” to mean a single mechanical movement of the trigger from its starting
position to its ending position and understood that function to be terminated when
the trigger was fully depressed. See JA202. See also Staples v. United States, 511
U.S. 600 (1994) Id. at n1 (“As used here, the terms ‘automatic’ and ‘fully
automatic’ refer to a weapon that fires repeatedly with a single pull of the trigger.
That is, once its trigger is depressed, the weapon will automatically continue to
fire until its trigger is released or the ammunition is exhausted.” (emphasis
added)); Kolbe v. Hogan, 849 F.3d 114, 158 (4th Cir. 2017) ([S]emiautomatic
firearms require that the shooter pull the trigger for each shot fired,
while…“machine guns”—do not require a pull of the trigger for each shot and will
[shoot] as long as the trigger is depressed. (Traxler, J., dissenting)(citation
omitted)); Hollis v. Lynch, 827 F.3d 436, Fn. 2 (5th Cir. 2016) (a machinegun
“fir[es] more than one round per trigger-action” and a semiautomatic firearm “fires
only one round per trigger-action.”).
Indeed, even ATF has conceded the mechanical reality that “additional
physical manipulation of the trigger” results in an additional “function of the
trigger.” 83 Fed. Reg. 66519. 5
ATF’s discussion of so-called “binary triggers” confirms the narrow
boundaries of what constitutes a “single function of the trigger.” In denying that
binary-trigger-equipped guns are machineguns, ATF noted that while
“semiautomatic firearms may shoot one round when the trigger is pulled, the
shooter must release the trigger before another round is fired. Even if this release
results in a second shot being fired, it is as the result of a separate function of the
trigger. This is also the reason that binary triggers cannot be classified as
‘machineguns’ under the rule—one function of the trigger results in the firing of
only one round.” 83 FR 66534.
The language of the statute as applied to even rudimentary knowledge of the
operation of a trigger could not be plainer. One function of the trigger means one
physical movement of the trigger either backward or forward to release the
hammer and fire or reset the trigger (or sometimes to do both for each movement).
5
See also JA288 (ATF expert testifying that bump-stock-devices “are not classified as machine
guns because the shooter still has to separately pull the trigger each time he/she fires the gun by
manually operating a lever, crank, or the like.”).
Likewise, to “shoot … automatically” plainly means additional discharge of
bullets without further manual or volitional input by the shooter beyond
maintaining the trigger in the depressed or rearward position. Because automated
shooting must occur “by a single function of the trigger,” the continual mechanical
and “automatic[]” discharge necessarily must occur before or without a second
function of the trigger. 6
Under such plain understanding of the statute, bump-firing a gun, with or
without a bump-stock-type device, requires multiple functions of the trigger and
does not occur automatically, but rather as a result of the operator electing to and
continuing to push forward on the firearm to repeatedly push the trigger against a
stationary finger, thereby causing multiple and distinct trigger functions. Contrary
to ATF’s claim, the recoil energy of an initial shot does not move a weapon fitted
with a bump-stock-type device “back and forth,” it only moves it back. Its effect
releases pressure on the trigger by moving it away from the shooter’s finger,
thereby terminating the initial trigger function and initiating the next trigger
function of resetting it awaiting further manual input. The next movement of the
trigger is not initiated by the recoil or otherwise “automatically,” but by the manual
6
See ATF Rul. 2004-5 (“automatic” defined to include “any firearm in which a single pull and
continuous pressure upon the trigger (or other firing device) will produce rapid discharge of
successive shots”) (quoting George C. Nonte, Jr., Firearms Encyclopedia 13 (Harper & Rowe
1973)); Webster’s II New Riverside-University Dictionary (1988) (automatically: “acting or
operating in a manner essentially independent of external influence or control”); John Quick,
Dictionary of Weapons and Military Terms 40 (McGraw-Hill 1973) (automatic fire: “continuous
fire from an automatic gun, lasting until pressure on the trigger is released”).
volitional act of the shooter pushing/pulling the body of the gun (and hence the
trigger) forward until it contacts a stationary trigger finger and moves the trigger
backward through its next function. The back and forth necessarily depends on the
release of the trigger and subsequent human action of pushing forward and is
neither a “single” function of the trigger nor does it cause the gun to “shoot …
automatically.”
An analytical video showing the operation of a bump-stock-type device and
expert testimony of Rick Vasquez, former Acting Chief of the ATF’s Firearms
Technology Branch, who reviewed the video, was submitted to the district court.
JA289, also available at https://youtu.be/1OyK2RdO63U. Mr. Vasquez declared
(1) “bump-stock-device requires two functions of the trigger before a subsequent
round can be discharged (i.e. after the firearm is discharged for the first time, the
trigger must be fully released, reset, and then fully pulled rearward for a
subsequent round to be discharged),” (2) “even when the shooter maintains
constant forward pressure with the non-trigger hand on the [fore-end] of the rifle,
and maintains the trigger finger on the device’s extension ledge with constant
rearward pressure, after the first shot is discharged, the trigger must be released,
reset, and pulled completely rearward, before the subsequent round is discharged.
… This is no different than any factory semi-automatic firearm,” and (3) “bump-
stock-device[s] do[] 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 use this energy
to activate itself.” JA295-296, ¶¶ a, d, e.
And ATF’s prior determinations agree, acknowledging that a bump-stock-
type device “has no automatically functioning mechanical parts or springs and
performs no automatic mechanical function when installed. In order to use the
installed device, the shooter must apply constant forward pressure with the non-
shooting hand and constant rearward pressure with the shooting hand.” JA089
(ATF determination letter, June 6, 2010); id. at 090-091. (ATF determination
letter, Apr. 2, 2012) (when “an intermediate amount of pressure is applied to the
fore-end with the support hand, the shoulder stock device will recoil sufficiently
rearward to allow the trigger to mechanically reset. Continued intermediate
pressure applied to the fore-end will then push the receiver assembly forward until
the trigger re-contacts the shooter’s stationary firing hand finger, allowing a
subsequent shot to be fired. In this manner, the shooter pulls the firearm forward to
fire each shot, the firing of each shot being accomplished by a single trigger
function. … [Such] device is incapable of initiating an automatic firing cycle”)
(emphasis added).
Nothing in language or mechanics has changed since ATF made those
determinations, other than the addition of a naked political desire to exceed the
limits set by Congress.
Furthermore, because ATF admits virtually all semiautomatic rifles can be
“bump-fired” with or without a bump-stock-type device, and often with use of
common household items – or even one’s finger – ATF’s definition would render
all such firearms illegal as a “combination of parts from which a machinegun can
be assembled if such parts are in the possession or under the control of a person.”
That is plainly beyond the original public understanding of the statutory language
and hence unreasonable. See JA146 (Karl Frederick’s congressional testimony)
(phrase “with one function of the trigger” necessarily included in the definition of a
machinegun “[b]ecause that is the essence of a machine gun. Otherwise you have
the ordinary repeating rifle … which is no sense and never has been thought of as a
machine gun.”) (emphasis added). Congress obviously agreed with the suggestion
by including that language. A definition with such a result is absurd and contrary to
the plain limits of the statutory language and context.
The “core administrative-law principle” is that “an agency may not rewrite
clear statutory terms to suit its own sense of how the statute should operate.” Util.
Air Regulatory Grp. v. E.P.A., 572 U.S. 302, 328 (2014). “As a rule, [a] definition
which declares what a term ‘means’ ... excludes any meaning that is not
stated.” Colautti v. Franklin, 439 U.S. 379, 392–393, n. 10 (1979).
Here ATF concedes that the statutory definition of a machinegun is
“narrow,” JA303 n.4, 307-308, that it lacks the authority to expand that definition,
id. at 307, and that its prior regulations which mirror verbatim the statutory
language did not allow restriction of bump-stock-type devices, JA093, 292. It
nonetheless claims precisely the need for expansion of the regulatory definition to
cover bump-stock-type devices not covered by the incorporated statutory language
alone. The contradiction is evident.
“Congress alone has the institutional competence, democratic legitimacy,
and (most importantly) constitutional authority to revise statutes in light of new
social problems and preferences. Until it exercises that power, the people may rely
on the original meaning of the written law. Wisconsin Cent. Ltd. v. United States,
138 S.Ct. 2067, 2074 (2018); Utility Air Regulatory Grp. v. E.P.A., 572 U.S. 302,
328 (2014) (same).
While the court below erred in ignoring the plain language of the statute and
inappropriately accorded the government deference under the second stage of
Chevron analysis. JA019 (“[m]ost of the plaintiffs’ administrative law challenges
are foreclosed by the Chevron doctrine, which permits an agency to reasonably
define undefined statutory terms.”). The government did not seek such deference
and has conceded elsewhere that ATF is not entitled to such deference. Gun
Owners of America, Inc., et al., v. William P. Barr, et al., No. 1:18-cv-01429,
W.D. Mich., South Division, ECF Doc. 38 (“Defendants have not contended that
the deference afforded under Chevron … applies in this action.”).
The district court abused its discretion in finding the statutory language
ambiguous and erred as a matter of law in according ATF Chevron deference
regarding the terms “single function of the trigger” and “automatically.”
B. The Rule of Lenity Forecloses Executive Expansion of Ambiguous

Criminal Statutes
Even if the definition of machinegun were deemed ambiguous, the rule of
lenity demands a narrowing interpretation of such ambiguity, not deference to
administrative expansion of crimes. Whatever the policy arguments for restrictions
on new types of weapons, acting on such arguments is for Congress, not the
Executive Branch.
The “first principle” of criminal law requires that crimes be explicitly and
unambiguously specified in advance by statute. Liparota v. United States, 471 U.S.
419, 424 (1985) (“The definition of the elements of a criminal offense is entrusted
to the legislature, particularly in the case of federal crimes, which are solely
creatures of statute” (citation omitted)).
As Professor Sunstein has explained:
One function of the lenity principle is to ensure against delegations.

Criminal law must be a product of a clear judgment on Congress’s part.
Where no clear judgment has been made, the statute will not apply merely
because it is plausibly interpreted, by courts or enforcement authorities, to fit
the case at hand. The rule of lenity is inspired by the due process constraint
on conviction pursuant to open-ended or vague statutes. While it is not itself
a constitutional mandate, it is rooted in a constitutional principle, and serves
as a time-honored nondelegation canon.
Cass R. Sunstein, Nondelegation Canons, 67 U. Chi. L. Rev. 315, 332 (2000).
As the Supreme Court likewise recognizes, “when choice has to be made
between two readings of what conduct Congress has made a crime, it is
appropriate, before we choose the harsher alternative, to require that Congress
should have spoken in language that is clear and definite.” United States v.
Universal C.I.T. Credit Corp., 344 U.S. 218, 221-22 (1952); see also Lewis v.
United States, 445 U.S. 55, 65 (1980) (“[T]he touchstone” of the lenity principle
“is statutory ambiguity.”), United States v. Gradwell, 243 U.S. 476, 485 (1917)
(“before a man can be punished as a criminal under the federal law his case must
be ‘plainly and unmistakably’ within the provisions of some statute.”).
Narrow construction of ambiguous criminal laws is especially important in
the administrative context. Because agencies have a natural tendency to broadly
interpret the statutes they administer, deference in the criminal context “would turn
the normal construction of criminal statutes upside-down, replacing the doctrine of
lenity with a doctrine of severity.” Crandon v. United States, 494 U.S. 152, 178
(1990) (Scalia, J., concurring). Indeed, the Supreme Court found that lenity
displaced Chevron deference specifically as applied to ATF. In United States v.
Thompson/Ctr. Arms Co., 504 U.S. 505, 517-18 (1992), addressing ATF’s
interpretation of another definition relating to firearms, the court applied the rule of
lenity to an ambiguous term because the statute had “criminal applications.” This
Court in United States v. McGoff, 831 F.2d 1071, 1077 (D.C. Cir. 1987), also has
held that lenity supersedes Chevron deference:
[T]he law of crimes must be clear. There is less room in a statute’s regime
for flexibility, a characteristic so familiar to us on this court in the
interpretation of statutes entrusted to agencies for administration. We are, in
short, far outside Chevron territory here.
Even the Government in this case and others has conceded that the rule of
lenity precludes deference to ATF. JA309 (citing Burrage v. United States, 571
U.S. 204, 216 (2014)); W. Clark Aposhian v. William P. Barr, et al., No. 2:19-cv-
00037, D. Utah, Central Division, Government Notice of Supplemental Authority
(Doc. 27) (in “‘the interpretation of criminal statutes ... agencies are not ordinarily
entitled to deference’” (quoting United States v. Apel, 571 U.S. 359, 369 (2014))).
C. The Final Rule Is Unreasonable, Arbitrary, and Capricious
Even assuming ambiguity and that lenity did not apply, Chevron deference
should be rejected because the Final Rule was not based on unbiased and reasoned
consideration and is unreasonable, arbitrary, and capricious. “Agency action is
arbitrary and capricious ‘if the agency has relied on factors which Congress has not
intended it to consider, … [or] offered an explanation for its decision that runs
counter to the evidence before the agency.’” Animal Legal Def. Fund, Inc. v.
Perdue, 872 F.3d 602, 611 (2017 D.C. Cir.) (citation omitted).
First, as noted by the Cato Institute, the rulemaking here “was a fait
accompli” from inception. Cato Institute Comments on Definition of
“Machinegun,” at 2, available at https://www.regulations.gov/document?D=ATF-
2018-0002-65898. President Trump declared he would “write out” bump-stock
devices “myself because I’m able to.” Id. Appellants expect the Cato Institute to
elaborate on this point in an amicus brief and endorse their suggestion that biased
and pre-ordained rulemaking reversing past reasoned determinations is arbitrary
and capricious and not entitled to deference. “The agency’s statement must be one
of reasoning; it must not be just a [foregone] conclusion.” Butte Cty v. Hogen, 613
F.3d 190, 194 (D.C. Cir. 2010) (citation omitted). The Final Rule stems from
political compulsion, not agency expertise. Political determinations in criminal
statutes must be made by Congress, not the President. 7
Second, the new definition on its own terms is arbitrary and capricious in its
treatment of the phrase “shoot … automatically.” The district court endorsed
ATF’s expansion of the word automatically to mean “‘functioning as the result of a
7
East Bay Sanctuary Covenant, et al. v. Donald J. Trump, et al., No. 18-17274, 2018 WL
6428204, *51 (9th Cir. Dec. 7, 2018) (“[j]ust as [the Judiciary] may not [], ‘legislate from the
bench,’ neither may the Executive legislate from the Oval Office”).
self-acting or self-regulating mechanism,’” and amazingly then found that
expansion itself to be ambiguous because “[a]utomatic devices regularly require
some degree of manual input” and “[b]ecause [neither] the statute [nor the
regulation] … specify how much manual input is too much.” JA038-039. Of
course, the statute does indeed state the maximum level of manual input allowed –
a single function of the trigger – but regardless, defining a supposedly ambiguous
term with an even more ambiguous concept conflating automatic and manual is
arbitrary and capricious.
Additionally, in endorsing ATF’s conflation of the mechanical phrase
“function of the trigger” with the human-focused concept of “pull” of the trigger,
JA040, the court and ATF obscured other acts of manual and volitional behavior
necessary to fire additional shots even with a bump-stock. Thus the court
incorrectly stated that multiple rounds would be fired with a single “pull” by the
shooter thereafter “‘maintaining the trigger finger on the device’s extension ledge
with constant rearward pressure.’” Id. (Internal citations omitted). That ignores that
the extension ledge is not the trigger, that the shooter must manually and
volitionally push the trigger into such stationary finger, and that the video evidence
presented by Appellants demonstrating that subsequent firing requires manual
input and multiple discrete trigger “functioning.” See JA289, also available at
https://youtu.be/1OyK2RdO63U (showing need for manual and volitional forward
pressure on forebody of rifle by the shooter, forcing the trigger into a stationary
finger thereby moving it through its firing function after each recoil removes
pressure from the trigger allowing it to travel forward through its reset function).
An agency may not “ignore evidence contradicting its position.” Butte Cty., 613
F.3d at 194 (citation omitted).
The court and ATF’s suggestion, JA040-041, that “a bump stock relieves a
shooter of enough of the otherwise necessary manual inputs to warrant the
‘automatic’ label,” again ignores the language of the statute and fails to distinguish
a semi-automatic weapon, which automatically loads the next round. The only
manual input relevant to the line between semi-automatic and automatic is the need
to apply pressure to and move a reset trigger in a manner that causes the next
hammer strike and hence the next shot. That is the relevant “function” of the
trigger in the context of the statute. That a bump-stock-style device or any other
method for bump-firing, may permit the trigger to reset via recoil, does not even
remotely show that it automatically “shoots” the next round, just as the automatic
chambering of the next round in a semi-automatic does not automatically shoot
that round without further manual input on the trigger.
Third, the new definition is arbitrary and capricious in that it would
encompass virtually all semiautomatic weapons. The relevant question under the
statute and rule is whether a weapon can shoot or can be combined with other parts
in a person’s possession to shoot “more than one shot … by a single function of the
trigger.” ATF’s definition covers not merely a specific device, but anything that
would make a gun capable of bump-firing – i.e., permitting the recoil of a gun to
relieve pressure on and reset the trigger – regardless whether the next actuation of
the trigger requires the manual action of the shooter to push the reset trigger into a
stationary finger. Such bump-firing is not dependent on any particular firearm
device or modification, but is a technique that can be utilized with the intrinsic
capabilities of most factory semi-automatic firearms, including common rifles and
pistols such as the AR-15 and the 1911. Indeed, ATF admits bump-firing can be
done with a belt loop, a rubber band, or just one’s finger. 83 Fed. Reg. 13454.
That ATF has disavowed the intent to apply its broad definition to those
circumstances is irrelevant. The regulatory definition, by its new terms, covers
such weapons and therefore is unreasonable, arbitrary, and capricious regardless
whether ATF exercises arbitrary administrative “grace” in not enforcing its
overbroad and illegal definition.
II. Irreparable Injury
Appellees concede that the deprivation of property or the threat of criminal
penalties is irreparable injury. Doc. 16 at 71, n. 40; Chaplaincy of Full Gospel
Churches, 454 F.3d at 297. (describing nature of irreparable harm).
III. No Harm to Appellees
Absent a preliminary injunction, Appellants and a half-million others, 83
Fed. Reg. 13451, will be deprived of their lawful property or face prosecution, up
to 10 years in jail and other severe penalties, per violation. 26 U.S.C. §§ 5861,
5872; 18 U.S.C. § 3571; 27 C.F.R. § 479.182.
Appellees would only be enjoined, pending judicial review, from
implementing the new regulation and ATF concedes that the Final Rule is not
based on bump-stock-type devices having been or having “the potential to be, used
in crime.” 83 Fed. Reg. 66528. It claims merely an interpretive interest “based only
upon the functioning of the device and the application of the relevant statutory
definition.” Id. at 66529. That interest is de minimis in this context, supports
maintaining the status quo pending unrushed judicial review, and thus strongly
favors an injunction.
IV. The Public Interest Favors Agency Compliance with Statutory Limits
“[T]here is a public interest in enforcing compliance with the law.” Garnett
v. Zellinger, 313 F.Supp.3d 147, 159 (D.D.C. 2018); League of Women Voters, 838
F.3d at 12 (“substantial public interest in” agency abiding by law governing their
authority”). It is essential to the constitutional design for courts, at the behest of “a
person affected concretely, substantially and irreparably by administrative action”
to enjoin the Executive from reaching beyond congressional authorization or
prohibition. Fleming v. Moberly Milk Products Co., 160 F.2d 259, 264 (D.C. Cir.
1947). “It is an inherent power of the federal judiciary to enjoin such an act. That
there be such power was one of the prime compelling reasons for the creation of
the judicial branch as an independent and equal branch of the Government.” Id.
* * *
Even if this Court questioned the likelihood of success, the balance of
factors, Chaplaincy of Full Gospel Churches, 454 F.3d at 297, still favors an
injunction because there is undisputed irreparable harm, no harm to Appellees, and
an overwhelming public interest constraining agency lawlessness.
CONCLUSION
This Court should reverse and direct issuance of a preliminary injunction
pending review.
Respectfully Submitted,
/s/ Joshua Prince

Joshua Prince, Esq.
D.C. Bar No. PA0081
Joshua@princelaw.com
/s/ Adam Kraut

Adam Kraut, Esq.
D.C. Bar No. PA0080

646 Lenape Road
610-845-3803 (t)
610-845-3903 (f)
/s/ Erik S. Jaffe

Erik S. Jaffe
D.C. Bar No. 440112
Schaerr | Jaffe LLP
1717 K Street NW
Suite 900
Washington, DC 20006
202-787-1060 (t)
ejaffe@schaerr-jaffe.com
Of Counsel
CERTIFICATE OF COMPLIANCE
This brief complies with the word limit set forth in Fed. R. App. P.
32(a)(7)(B)(i) and this Court’s order regarding combined word limits because,
according to the word-count feature of Microsoft Word, it contains 6,036 words,
excluding the parts of the brief exempted by Fed. R. App. P. 32(f).
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(4) and the type style requirements of Fed. R. App. P. 32(a)(5) because it has
been prepared in a proportionally spaced typeface using Microsoft Office Word in
Times New Roman 14 point font.
Dated: March 4, 2019 Respectfully Submitted,
/s/ Adam Kraut

Adam Kraut, Esq.
D.C. Bar No. 0080
646 Lenape Road
610-845-3803 (t)
610-845-3903 (f)
CERTIFICATE OF SERVICE
I hereby certify that on March 4, 2019, I electronically filed the foregoing with the
Clerk of Court for the United States Court of Appeals for the District of Columbia
Circuit by using the CM/ECF system. I certify that all participants in this case are
registered CM/ECF users and that service will be accomplished by the CM/ECF
system.
/s/ Adam Kraut

Adam Kraut, Esq.
No. 19-5042
Consolidated with 19-5043, 19-5044
______________________________
UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT
______________________________
DAMIEN GUEDES, et al.,
Appellants,
v.
BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, et al.,
Appellees.
______________________________
On Appeal from the United States District Court

for the District of Columbia,
No. 1:18-cv-02988 (DLF)
______________________________
Addendum to Brief for Appellants Damien Guedes, Shane Roden, Firearms

Policy Foundation, Madison Society Foundation, Inc., and Florida Carry, Inc.
______________________________
Joshua Prince, Esq. Erik S. Jaffe

Adam Kraut, Esq. Schaerr | Jaffe LLP
Civil Rights Defense Firm, P.C. 1717 K Street NW
646 Lenape Road Suite 900
Bechtelsville, PA 19505 Washington, DC 20006
888-202-9297 (t) 202-787-1060 (t)
Joshua@princelaw.com ejaffe@schaerr-jaffe.com
AKraut@princelaw.com Of Counsel
(Page 41 of Total)
Table of Contents
26 U.S.C. § 5845 – Definitions ................................................................................. 1

27 C.F.R. § 479.11 – Meaning of Terms .................................................................. 4
18 U.S.C. § 921 – Definitions ................................................................................. 10
27 C.F.R. § 478.11 – Meaning of Terms ................................................................ 19
22 U.S.C.A. § 2794 – Definitions ........................................................................... 36
27 C.F.R. § 447.11 – Meaning of Terms ................................................................ 39
27 C.F.R. § 478.182 – Forefeitures......................................................................... 42
Enlarged Individual Images – Semi-Automatic Firearm Control Group for AR-15
Type Firearm ........................................................................................................... 43
i
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26 U.S.C. § 5845 – Definitions

For the purpose of this chapter—
(a) Firearm.--The term “firearm” means (1) a shotgun having a barrel or barrels of
less than 18 inches in length; (2) a weapon made from a shotgun if such weapon
as modified has an overall length of less than 26 inches or a barrel or barrels of
less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16
inches in length; (4) a weapon made from a rifle if such weapon as modified has
an overall length of less than 26 inches or a barrel or barrels of less than 16
inches in length; (5) any other weapon, as defined in subsection (e); (6) a
machinegun; (7) any silencer (as defined in section 921 of title 18, United
States Code); and (8) a destructive device. The term “firearm” shall not include
an antique firearm or any device (other than a machinegun or destructive
device) which, although designed as a weapon, the Secretary finds by reason of
the date of its manufacture, value, design, and other characteristics is primarily
a collector's item and is not likely to be used as a weapon.
(b) Machinegun.--The term “machinegun” 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.
(c) Rifle.--The term “rifle” means a weapon designed or redesigned, made or

remade, and intended to be fired from the shoulder and designed or redesigned
and made or remade to use the energy of the explosive in a fixed cartridge to
fire only a single projectile through a rifled bore for each single pull of the
trigger, and shall include any such weapon which may be readily restored to fire
a fixed cartridge.
(d) Shotgun.--The term “shotgun” means a weapon designed or redesigned, made

or remade, and intended to be fired from the shoulder and designed or
redesigned and made or remade to use the energy of the explosive in a fixed
shotgun shell to fire through a smooth bore either a number of projectiles (ball
1
(Page 43 of Total)
shot) or a single projectile for each pull of the trigger, and shall include any
such weapon which may be readily restored to fire a fixed shotgun shell.
(e) Any other weapon.--The term “any other weapon” means any weapon or
device capable of being concealed on the person from which a shot can be
discharged through the energy of an explosive, a pistol or revolver having a
barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell,
weapons with combination shotgun and rifle barrels 12 inches or more, less
than 18 inches in length, from which only a single discharge can be made from
either barrel without manual reloading, and shall include any such weapon
which may be readily restored to fire. Such term shall not include a pistol or a
revolver having a rifled bore, or rifled bores, or weapons designed, made, or
intended to be fired from the shoulder and not capable of firing fixed
ammunition.
(f) Destructive device.--The term “destructive device” means (1) any explosive,
incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellent
charge of more than four ounces, (D) missile having an explosive or incendiary
charge of more than one-quarter ounce, (E) mine, or (F) similar device; (2) any
type of weapon by whatever name known which will, or which may be readily
converted to, expel a projectile by the action of an explosive or other propellant,
the barrel or barrels of which have a bore of more than one-half inch in
diameter, except a shotgun or shotgun shell which the Secretary finds is
generally recognized as particularly suitable for sporting purposes; and (3) any
combination of parts either designed or intended for use in converting any
device into a destructive device as defined in subparagraphs (1) and (2) and
from which a destructive device may be readily assembled. The term
“destructive device” shall not include any device which is neither designed nor
redesigned for use as a weapon; any device, although originally designed for
use as a weapon, which is redesigned for use as a signaling, pyrotechnic, line
throwing, safety, or similar device; surplus ordnance sold, loaned, or given by
the Secretary of the Army pursuant to the provisions of section 7684(2), 7685,
or 7686 of title 10, United States Code; or any other device which the Secretary
finds is not likely to be used as a weapon, or is an antique or is a rifle which the
owner intends to use solely for sporting purposes.
(g) Antique firearm.--The term “antique firearm” means any firearm not designed
or redesigned for using rim fire or conventional center fire ignition with fixed
ammunition and manufactured in or before 1898 (including any matchlock,
flintlock, percussion cap, or similar type of ignition system or replica thereof,
2
(Page 44 of Total)
whether actually manufactured before or after the year 1898) and also any
firearm using fixed ammunition manufactured in or before 1898, for which
ammunition is no longer manufactured in the United States and is not readily
available in the ordinary channels of commercial trade.
(h) Unserviceable firearm.--The term “unserviceable firearm” means a firearm

which is incapable of discharging a shot by means of an explosive and
incapable of being readily restored to a firing condition.
(i) Make.--The term “make”, and the various derivatives of such word, shall
include manufacturing (other than by one qualified to engage in such business
under this chapter), putting together, altering, any combination of these, or
otherwise producing a firearm.
(j) Transfer.--The term “transfer” and the various derivatives of such word, shall
include selling, assigning, pledging, leasing, loaning, giving away, or otherwise
disposing of.
(k) Dealer.--The term “dealer” means any person, not a manufacturer or importer,
engaged in the business of selling, renting, leasing, or loaning firearms and shall
include pawnbrokers who accept firearms as collateral for loans.
(l) Importer.--The term “importer” means any person who is engaged in the
business of importing or bringing firearms into the United States.
(m) Manufacturer.--The term “manufacturer” means any person who is engaged

in the business of manufacturing firearms.
3
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27 C.F.R. § 479.11 – Meaning of Terms
When used in this part and in forms prescribed under this part, where not otherwise
distinctly expressed or manifestly incompatible with the intent thereof, terms shall
have the meanings ascribed in this section. Words in the plural form shall include
the singular, and vice versa, and words importing the masculine gender shall
include the feminine. The terms “includes” and “including” do not exclude other
things not enumerated which are in the same general class or are otherwise within
the scope thereof.
Antique firearm. Any firearm not designed or redesigned for using rim fire or
conventional center fire ignition with fixed ammunition and manufactured in or
before 1898 (including any matchlock, flintlock, percussion cap, or similar type of
ignition system or replica thereof, whether actually manufactured before or after
the year 1898) and also any firearm using fixed ammunition manufactured in or
before 1898, for which ammunition is no longer manufactured in the United States
and is not readily available in the ordinary channels of commercial trade.
Any other weapon. Any weapon or device capable of being concealed on the
person from which a shot can be discharged through the energy of an explosive, a
pistol or revolver having a barrel with a smooth bore designed or redesigned to fire
a fixed shotgun shell, weapons with combination shotgun and rifle barrels 12
inches or more, less than 18 inches in length, from which only a single discharge
can be made from either barrel without manual reloading, and shall include any
such weapon which may be readily restored to fire. Such term shall not include a
pistol or a revolver having a rifled bore, or rifled bores, or weapons designed,
made, or intended to be fired from the shoulder and not capable of firing fixed
ammunition.
ATF officer. An officer or employee of the Bureau of Alcohol, Tobacco, Firearms,

and Explosives (ATF) authorized to perform any function relating to the
administration or enforcement of this part.
Customs officer. Any officer of U.S. Customs and Border Protection, any
commissioned, warrant, or petty officer of the Coast Guard, or any agent or other
person authorized by law to perform the duties of a customs officer.
Dealer. Any person, not a manufacturer or importer, engaged in the business of

selling, renting, leasing, or loaning firearms and shall include pawnbrokers who
accept firearms as collateral for loans.
4
(Page 46 of Total)
Destructive device. (a) Any explosive, incendiary, or poison gas (1) bomb, (2)
grenade, (3) rocket having a propellant charge of more than 4 ounces, (4) missile
having an explosive or incendiary charge of more than one-quarter ounce, (5)
mine, or (6) similar device; (b) any type of weapon by whatever name known
which will, or which may be readily converted to, expel a projectile by the action
of an explosive or other propellant, the barrel or barrels of which have a bore of
more than one-half inch in diameter, except a shotgun or shotgun shell which the
Director finds is generally recognized as particularly suitable for sporting
purposes; and (c) any combination of parts either designed or intended for use in
converting any device into a destructive device as described in paragraphs (a) and
(b) of this definition and from which a destructive device may be readily
assembled. The term shall not include any device which is neither designed or
redesigned for use as a weapon; any device, although originally designed for use as
a weapon, which is redesigned for use as a signaling, pyrotechnic, line throwing,
safety, or similar device; surplus ordnance sold, loaned, or given by the Secretary
of the Army under 10 U.S.C. 4684(2), 4685, or 4686, or any device which the
Director finds is not likely to be used as a weapon, or is an antique or is a rifle
which the owner intends to use solely for sporting purposes.
Director. The Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives, the
Department of Justice, Washington, DC.
Director, Industry Operations. The principal regional official responsible for
administering regulations in this part.
Director of the Service Center. A director of an Internal Revenue Service Center in

an internal revenue region.
District director. A district director of the Internal Revenue Service in an internal

revenue district.
Executed under penalties of perjury. Signed with the prescribed declaration under
the penalties of perjury as provided on or with respect to the return, form, or other
document or, where no form of declaration is prescribed, with the declaration:
“I declare under the penalties of perjury that this—(insert type of document, such
as, statement, application, request, certificate), including the documents submitted
in support thereof, has been examined by me and, to the best of my knowledge and
belief, is true, correct, and complete.”
Exportation. The severance of goods from the mass of things belonging to this
country with the intention of uniting them to the mass of things belonging to some
foreign country.
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Exporter. Any person who exports firearms from the United States.
Firearm. (a) A shotgun having a barrel or barrels of less than 18 inches in length;
(b) a weapon made from a shotgun if such weapon as modified has an overall
length of less than 26 inches or a barrel or barrels of less than 18 inches in length;
(c) a rifle having a barrel or barrels of less than 16 inches in length; (d) a weapon
made from a rifle if such weapon as modified has an overall length of less than 26
inches or a barrel or barrels of less than 16 inches in length; (e) any other weapon,
as defined in this subpart; (f) a machine gun; (g) a muffler or a silencer for any
firearm whether or not such firearm is included within this definition; and (h) a
destructive device. The term shall not include an antique firearm or any device
(other than a machine gun or destructive device) which, although designed as a
weapon, the Director finds by reason of the date of its manufacture, value, design,
and other characteristics is primarily a collector's item and is not likely to be used
as a weapon. For purposes of this definition, the length of the barrel having an
integral chamber(s) on a shotgun or rifle shall be determined by measuring the
distance between the muzzle and the face of the bolt, breech, or breech block when
closed and when the shotgun or rifle is cocked. The overall length of a weapon
made from a shotgun or rifle is the distance between the extreme ends of the
weapon measured along a line parallel to the center line of the bore.
Fixed ammunition. That self-contained unit consisting of the case, primer,

propellant charge, and projectile or projectiles.
Frame or receiver. That part of a firearm which provides housing for the hammer,
bolt or breechblock and firing mechanism, and which is usually threaded at its
forward portion to receive the barrel.
Importation. The bringing of a firearm within the limits of the United States or any
territory under its control or jurisdiction, from a place outside thereof (whether
such place be a foreign country or territory subject to the jurisdiction of the United
States), with intent to unlade. Except that, bringing a firearm from a foreign
country or a territory subject to the jurisdiction of the United States into a foreign
trade zone for storage pending shipment to a foreign country or subsequent
importation into this country, under Title 26 of the United States Code, and this
part, shall not be deemed importation.
Importer. Any person who is engaged in the business of importing or bringing

firearms into the United States.
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<Text of definition effective until March 26, 2019.>
Machine gun. 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
machine gun, and any combination of parts from which a machine gun can be
assembled if such parts are in the possession or under the control of a person.
<Text of definition effective March 26, 2019.>
assembled if such parts are in the possession or under the control of a person. For
purposes of this definition, the term “automatically” as it modifies “shoots, is
designed to shoot, or can be readily restored to shoot,” means 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 “single function of the
trigger” means a single pull of the trigger and analogous motions. The term
“machine gun” includes a bump-stock-type device, i.e., a device that allows a
semi-automatic firearm to shoot more than one shot with a single pull of the trigger
by harnessing the recoil energy of the semi-automatic firearm to which it is affixed
so that the trigger resets and continues firing without additional physical
manipulation of the trigger by the shooter.
Make. This term and the various derivatives thereof shall include manufacturing
(other than by one qualified to engage in such business under this part), putting
together, altering, any combination of these, or otherwise producing a firearm.
Manual reloading. The inserting of a cartridge or shell into the chamber of a

firearm either with the hands or by means of a mechanical device controlled and
energized by the hands.
Manufacturer. Any person who is engaged in the business of manufacturing

firearms.
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Muffler or silencer. Any device for silencing, muffling, or diminishing the report
of a portable firearm, including any combination of parts, designed or redesigned,
and intended for the use in assembling or fabricating a firearm silencer or firearm
muffler, and any part intended only for use in such assembly or fabrication.
Person. A partnership, company, association, trust, corporation, including each

responsible person associated with such an entity; an estate; or an individual.
Pistol. A weapon originally designed, made, and intended to fire a projectile

(bullet) from one or more barrels when held in one hand, and having (a) a
chamber(s) as an integral part(s) of, or permanently aligned with, the bore(s); and
(b) a short stock designed to be gripped by one hand and at an angle to and
extending below the line of the bore(s).
Responsible person. In the case of an unlicensed entity, including any trust,

partnership, association, company (including any Limited Liability Company
(LLC)), or corporation, any individual who possesses, directly or indirectly, the
power or authority to direct the management and policies of the trust or entity to
receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearm
for, or on behalf of, the trust or legal entity. In the case of a trust, those persons
with the power or authority to direct the management and policies of the trust
include any person who has the capability to exercise such power and possesses,
directly or indirectly, the power or authority under any trust instrument, or under
State law, to receive, possess, ship, transport, deliver, transfer, or otherwise dispose
of a firearm for, or on behalf of, the trust. Examples of who may be considered a
responsible person include settlors/grantors, trustees, partners, members, officers,
directors, board members, or owners. An example of who may be excluded from
this definition of responsible person is the beneficiary of a trust, if the beneficiary
does not have the capability to exercise the powers or authorities enumerated in
this section.
Revolver. A projectile weapon, of the pistol type, having a breechloading

chambered cylinder so arranged that the cocking of the hammer or movement of
the trigger rotates it and brings the next cartridge in line with the barrel for firing.
Rifle. A weapon designed or redesigned, made or remade, and intended to be fired

from the shoulder and designed or redesigned and made or remade to use the
energy of the explosive in a fixed cartridge to fire only a single projectile through a
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rifled bore for each single pull of the trigger, and shall include any such weapon
which may be readily restored to fire a fixed cartridge.
Shotgun. A weapon designed or redesigned, made or remade, and intended to be
fired from the shoulder and designed or redesigned and made or remade to use the
energy of the explosive in a fixed shotgun shell to fire through a smooth bore either
a number of projectiles (ball shot) or a single projectile for each pull of the trigger,
and shall include any such weapon which may be readily restored to fire a fixed
shotgun shell.
Transfer. This term and the various derivatives thereof shall include selling,
assigning, pledging, leasing, loaning, giving away, or otherwise disposing of.
United States. The States and the District of Columbia.
U.S.C. The United States Code.
Unserviceable firearm. A firearm which is incapable of discharging a shot by

means of an explosive and incapable of being readily restored to a firing condition.

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18 U.S.C. § 921 – Definitions
(a) As used in this chapter--
(1) The term “person” and the term “whoever” include any individual, corporation,
company, association, firm, partnership, society, or joint stock company.
(2) The term “interstate or foreign commerce” includes commerce between any
place in a State and any place outside of that State, or within any possession of the
United States (not including the Canal Zone) or the District of Columbia, but such
term does not include commerce between places within the same State but through
any place outside of that State. The term “State” includes the District of Columbia,
the Commonwealth of Puerto Rico, and the possessions of the United States (not
including the Canal Zone).
(3) The term “firearm” means (A) any weapon (including a starter gun) which will
or is designed to or may readily be converted to expel a projectile by the action of
an explosive; (B) the frame or receiver of any such weapon; (C) any firearm
muffler or firearm silencer; or (D) any destructive device. Such term does not
include an antique firearm.
(4) The term “destructive device” means--
(A) any explosive, incendiary, or poison gas--

(i) bomb,
(ii) grenade,
(iii) rocket having a propellant charge of more than four ounces,
(iv) missile having an explosive or incendiary charge of more than one-
quarter ounce,
(v) mine, or
(vi) device similar to any of the devices described in the preceding clauses;
(B) any type of weapon (other than a shotgun or a shotgun shell which the
Attorney General finds is generally recognized as particularly suitable for
sporting purposes) by whatever name known which will, or which may be
readily converted to, expel a projectile by the action of an explosive or other
propellant, and which has any barrel with a bore of more than one-half inch in
diameter; and
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(C) any combination of parts either designed or intended for use in converting
any device into any destructive device described in subparagraph (A) or (B)
and from which a destructive device may be readily assembled.
The term “destructive device” shall not include any device which is neither
designed nor redesigned for use as a weapon; any device, although originally
designed for use as a weapon, which is redesigned for use as a signaling,
pyrotechnic, line throwing, safety, or similar device; surplus ordnance sold, loaned,
or given by the Secretary of the Army pursuant to the provisions of section
7684(2), 7685, or 7686 of title 10; or any other device which the Attorney General
finds is not likely to be used as a weapon, is an antique, or is a rifle which the
owner intends to use solely for sporting, recreational or cultural purposes.
(5) The term “shotgun” means a weapon designed or redesigned, made or remade,
and intended to be fired from the shoulder and designed or redesigned and made or
remade to use the energy of an explosive to fire through a smooth bore either a
number of ball shot or a single projectile for each single pull of the trigger.
(6) The term “short-barreled shotgun” means a shotgun having one or more barrels
less than eighteen inches in length and any weapon made from a shotgun (whether
by alteration, modification or otherwise) if such a weapon as modified has an
overall length of less than twenty-six inches.
(7) The term “rifle” means a weapon designed or redesigned, made or remade, and
intended to be fired from the shoulder and designed or redesigned and made or
remade to use the energy of an explosive to fire only a single projectile through a
rifled bore for each single pull of the trigger.
(8) The term “short-barreled rifle” means a rifle having one or more barrels less
than sixteen inches in length and any weapon made from a rifle (whether by
alteration, modification, or otherwise) if such weapon, as modified, has an overall
length of less than twenty-six inches.
(9) The term “importer” means any person engaged in the business of importing or
bringing firearms or ammunition into the United States for purposes of sale or
distribution; and the term “licensed importer” means any such person licensed
under the provisions of this chapter.
(10) The term “manufacturer” means any person engaged in the business of
manufacturing firearms or ammunition for purposes of sale or distribution; and the
term “licensed manufacturer” means any such person licensed under the provisions
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of this chapter.
(11) The term “dealer” means (A) any person engaged in the business of selling
firearms at wholesale or retail, (B) any person engaged in the business of repairing
firearms or of making or fitting special barrels, stocks, or trigger mechanisms to
firearms, or (C) any person who is a pawnbroker. The term “licensed dealer”
means any dealer who is licensed under the provisions of this chapter.
(12) The term “pawnbroker” means any person whose business or occupation
includes the taking or receiving, by way of pledge or pawn, of any firearm as
security for the payment or repayment of money.
(13) The term “collector” means any person who acquires, holds, or disposes of
firearms as curios or relics, as the Attorney General shall by regulation define, and
the term “licensed collector” means any such person licensed under the provisions
of this chapter.
(14) The term “indictment” includes an indictment or information in any court

under which a crime punishable by imprisonment for a term exceeding one year
may be prosecuted.
(15) The term “fugitive from justice” means any person who has fled from any
State to avoid prosecution for a crime or to avoid giving testimony in any criminal
proceeding.
(16) The term “antique firearm” means--
(A) any firearm (including any firearm with a matchlock, flintlock, percussion
cap, or similar type of ignition system) manufactured in or before 1898; or
(B) any replica of any firearm described in subparagraph (A) if such replica--
(i) is not designed or redesigned for using rimfire or conventional centerfire

fixed ammunition, or
(ii) uses rimfire or conventional centerfire fixed ammunition which is no
longer manufactured in the United States and which is not readily available
in the ordinary channels of commercial trade; or
(C) any muzzle loading rifle, muzzle loading shotgun, or muzzle loading
pistol, which is designed to use black powder, or a black powder substitute,
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and which cannot use fixed ammunition. For purposes of this subparagraph,
the term “antique firearm” shall not include any weapon which incorporates a
firearm frame or receiver, any firearm which is converted into a muzzle
loading weapon, or any muzzle loading weapon which can be readily
converted to fire fixed ammunition by replacing the barrel, bolt, breechblock,
or any combination thereof.
(17)(A) The term “ammunition” means ammunition or cartridge cases, primers,

bullets, or propellent powder designed for use in any firearm.
(B) The term “armor piercing ammunition” means--

(i) a projectile or projectile core which may be used in a handgun and which is
constructed entirely (excluding the presence of traces of other substances) from
one or a combination of tungsten alloys, steel, iron, brass, bronze, beryllium
copper, or depleted uranium; or
(ii) a full jacketed projectile larger than .22 caliber designed and intended for
use in a handgun and whose jacket has a weight of more than 25 percent of the
total weight of the projectile.
(C) The term “armor piercing ammunition” does not include shotgun shot
required by Federal or State environmental or game regulations for hunting
purposes, a frangible projectile designed for target shooting, a projectile which
the Attorney General finds is primarily intended to be used for sporting
purposes, or any other projectile or projectile core which the Attorney General
finds is intended to be used for industrial purposes, including a charge used in
an oil and gas well perforating device.
(18) The term “Attorney General” means the Attorney General of the United States
(19) The term “published ordinance” means a published law of any political
subdivision of a State which the Attorney General determines to be relevant to the
enforcement of this chapter and which is contained on a list compiled by the
Attorney General, which list shall be published in the Federal Register, revised
annually, and furnished to each licensee under this chapter.
(20) The term “crime punishable by imprisonment for a term exceeding one year”
does not include--
(A) any Federal or State offenses pertaining to antitrust violations, unfair trade
practices, restraints of trade, or other similar offenses relating to the regulation
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of business practices, or
(B) any State offense classified by the laws of the State as a misdemeanor and
punishable by a term of imprisonment of two years or less.
What constitutes a conviction of such a crime shall be determined in accordance

with the law of the jurisdiction in which the proceedings were held. Any
conviction which has been expunged, or set aside or for which a person has been
pardoned or has had civil rights restored shall not be considered a conviction for
purposes of this chapter, unless such pardon, expungement, or restoration of civil
rights expressly provides that the person may not ship, transport, possess, or
receive firearms.
(21) The term “engaged in the business” means--
(A) as applied to a manufacturer of firearms, a person who devotes time,

attention, and labor to manufacturing firearms as a regular course of trade or
business with the principal objective of livelihood and profit through the sale or
distribution of the firearms manufactured;
(B) as applied to a manufacturer of ammunition, a person who devotes time,

attention, and labor to manufacturing ammunition as a regular course of trade or
distribution of the ammunition manufactured;
(C) as applied to a dealer in firearms, as defined in section 921(a)(11)(A), a

person who devotes time, attention, and labor to dealing in firearms as a regular
course of trade or business with the principal objective of livelihood and profit
through the repetitive purchase and resale of firearms, but such term shall not
include a person who makes occasional sales, exchanges, or purchases of
firearms for the enhancement of a personal collection or for a hobby, or who
sells all or part of his personal collection of firearms;
(D) as applied to a dealer in firearms, as defined in section 921(a)(11)(B), a

person who devotes time, attention, and labor to engaging in such activity as a
regular course of trade or business with the principal objective of livelihood and
profit, but such term shall not include a person who makes occasional repairs of
firearms, or who occasionally fits special barrels, stocks, or trigger mechanisms
to firearms;
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(E) as applied to an importer of firearms, a person who devotes time, attention,

and labor to importing firearms as a regular course of trade or business with the
principal objective of livelihood and profit through the sale or distribution of
the firearms imported; and
(F) as applied to an importer of ammunition, a person who devotes time,

attention, and labor to importing ammunition as a regular course of trade or
distribution of the ammunition imported.
(22) The term “with the principal objective of livelihood and profit” means that the
intent underlying the sale or disposition of firearms is predominantly one of
obtaining livelihood and pecuniary gain, as opposed to other intents, such as
improving or liquidating a personal firearms collection: Provided, That proof of
profit shall not be required as to a person who engages in the regular and repetitive
purchase and disposition of firearms for criminal purposes or terrorism. For
purposes of this paragraph, the term “terrorism” means activity, directed against
United States persons, which--
(A) is committed by an individual who is not a national or permanent resident

alien of the United States;
(B) involves violent acts or acts dangerous to human life which would be a
criminal violation if committed within the jurisdiction of the United States; and
(C) is intended--
(i) to intimidate or coerce a civilian population;

(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by assassination or kidnapping.
(23) The term “machinegun” has the meaning given such term in section 5845(b)
of the National Firearms Act (26 U.S.C. 5845(b)).
(24) The terms “firearm silencer” and “firearm muffler” mean any device for
silencing, muffling, or diminishing the report of a portable firearm, including any
combination of parts, designed or redesigned, and intended for use in assembling
or fabricating a firearm silencer or firearm muffler, and any part intended only for
use in such assembly or fabrication.
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(25) The term “school zone” means--
(A) in, or on the grounds of, a public, parochial or private school; or
(B) within a distance of 1,000 feet from the grounds of a public, parochial or
private school.
(26) The term “school” means a school which provides elementary or secondary
education, as determined under State law.
(27) The term “motor vehicle” has the meaning given such term in section 13102
of title 49, United States Code.
(28) 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.
(29) The term “handgun” means--
(A) a firearm which has a short stock and is designed to be held and fired by the
use of a single hand; and
(B) any combination of parts from which a firearm described in subparagraph

(A) can be assembled.
[(30), (31) Repealed. Pub.L. 103-322, Title XI, § 110105(2), Sept. 13, 1994, 108
Stat. 2000.]
(32) The term “intimate partner” means, with respect to a person, the spouse of the
person, a former spouse of the person, an individual who is a parent of a child of
the person, and an individual who cohabitates or has cohabited with the person.
(33)(A) Except as provided in subparagraph (C), the term “misdemeanor crime of

domestic violence” means an offense that--
(i) is a misdemeanor under Federal, State, or Tribal law; and
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(ii) has, as an element, the use or attempted use of physical force, or the
threatened use of a deadly weapon, committed by a current or former
spouse, parent, or guardian of the victim, by a person with whom the victim
shares a child in common, by a person who is cohabiting with or has
cohabited with the victim as a spouse, parent, or guardian, or by a person
similarly situated to a spouse, parent, or guardian of the victim.
(B)(i) A person shall not be considered to have been convicted of such an

offense for purposes of this chapter, unless--
(I) the person was represented by counsel in the case, or knowingly and
intelligently waived the right to counsel in the case; and
(II) in the case of a prosecution for an offense described in this paragraph
for which a person was entitled to a jury trial in the jurisdiction in which the
case was tried, either
(aa) the case was tried by a jury, or

(bb) the person knowingly and intelligently waived the right to have the
case tried by a jury, by guilty plea or otherwise.
(ii) A person shall not be considered to have been convicted of such an
offense for purposes of this chapter if the conviction has been expunged or
set aside, or is an offense for which the person has been pardoned or has had
civil rights restored (if the law of the applicable jurisdiction provides for the
loss of civil rights under such an offense) unless the pardon, expungement, or
restoration of civil rights expressly provides that the person may not ship,
transport, possess, or receive firearms.
(34) The term “secure gun storage or safety device” means--
(A) a device that, when installed on a firearm, is designed to prevent the firearm
from being operated without first deactivating the device;
(B) a device incorporated into the design of the firearm that is designed to
prevent the operation of the firearm by anyone not having access to the device;
or
(C) a safe, gun safe, gun case, lock box, or other device that is designed to be or
can be used to store a firearm and that is designed to be unlocked only by
means of a key, a combination, or other similar means.
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(35) The term “body armor” means any product sold or offered for sale, in
interstate or foreign commerce, as personal protective body covering intended to
protect against gunfire, regardless of whether the product is to be worn alone or is
sold as a complement to another product or garment.
(b) For the purposes of this chapter, a member of the Armed Forces on active duty
is a resident of the State in which his permanent duty station is located.
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the singular, and vice versa, and words importing the masculine gender shall
the scope thereof.
Act. 18 U.S.C. Chapter 44.
Adjudicated as a mental defective. (a) A determination by a court, board,

commission, or other lawful authority that a person, as a result of marked
subnormal intelligence, or mental illness, incompetency, condition, or disease:
(1) Is a danger to himself or to others; or
(2) Lacks the mental capacity to contract or manage his own affairs.
(b) The term shall include—
(1) A finding of insanity by a court in a criminal case; and
(2) Those persons found incompetent to stand trial or found not guilty by reason of
lack of mental responsibility pursuant to articles 50a and 72b of the Uniform Code
of Military Justice, 10 U.S.C. 850a, 876b.
Admitted to the United States for lawful hunting or sporting purposes. (a) Is
entering the United States to participate in a competitive target shooting event
sponsored by a national, State, or local organization, devoted to the competitive
use or other sporting use of firearms; or
(b) Is entering the United States to display firearms at a sports or hunting trade
show sponsored by a national, State, or local firearms trade organization, devoted
to the competitive use or other sporting use of firearms.
Alien. Any person not a citizen or national of the United States.
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Alien illegally or unlawfully in the United States. Aliens who are unlawfully in the
United States are not in valid immigrant, nonimmigrant or parole status. The term
includes any alien—
(a) Who unlawfully entered the United States without inspection and authorization
by an immigration officer and who has not been paroled into the United States
under section 212(d)(5) of the Immigration and Nationality Act (INA);
(b) Who is a nonimmigrant and whose authorized period of stay has expired or
who has violated the terms of the nonimmigrant category in which he or she was
admitted;
(c) Paroled under INA section 212(d)(5) whose authorized period of parole has
expired or whose parole status has been terminated; or
(d) Under an order of deportation, exclusion, or removal, or under an order to

depart the United States voluntarily, whether or not he or she has left the United
States.
Ammunition. Ammunition or cartridge cases, primers, bullets, or propellent

powder designed for use in any firearm other than an antique firearm. The term
shall not include (a) any shotgun shot or pellet not designed for use as the single,
complete projectile load for one shotgun hull or casing, nor (b) any unloaded, non-
metallic shotgun hull or casing not having a primer.
Antique firearm. (a) Any firearm (including any firearm with a matchlock,
flintlock, percussion cap, or similar type of ignition system) manufactured in or
before 1898; and (b) any replica of any firearm described in paragraph (a) of this
definition if such replica (1) is not designed or redesigned for using rimfire or
conventional centerfire fixed ammunition, or (2) uses rimfire or conventional
centerfire fixed ammunition which is no longer manufactured in the United States
and which is not readily available in the ordinary channels of commercial trade.
Armor piercing ammunition. Projectiles or projectile cores which may be used in a

handgun and which are constructed entirely (excluding the presence of traces of
other substances) from one or a combination of tungsten alloys, steel, iron, brass,
bronze, beryllium copper, or depleted uranium; or full jacketed projectiles larger
than .22 caliber designed and intended for use in a handgun and whose jacket has a
weight of more than 25 percent of the total weight of the projectile. The term does
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not include shotgun shot required by Federal or State environmental or game

regulations for hunting purposes, frangible projectiles designed for target shooting,
projectiles which the Director finds are primarily intended to be used for sporting
purposes, or any other projectiles or projectile cores which the Director finds are
intended to be used for industrial purposes, including charges used in oil and gas
well perforating devices.
ATF officer. An officer or employee of the Bureau of Alcohol, Tobacco, Firearms,

and Explosives (ATF) authorized to perform any function relating to the
administration or enforcement of this part.
Business premises. The property on which the manufacturing or importing of

firearms or ammunition or the dealing in firearms is or will be conducted. A
private dwelling, no part of which is open to the public, shall not be recognized as
coming within the meaning of the term.
Chief, Federal Firearms Licensing Center (FFLC). The ATF official responsible
for the issuance and renewal of licenses under this part.
Collector. Any person who acquires, holds, or disposes of firearms as curios or

relics.
Collection premises. The premises described on the license of a collector as the

location at which he maintains his collection of curios and relics.
Commerce. Travel, trade, traffic, commerce, transportation, or communication

among the several
States, or between the District of Columbia and any State, or between any foreign
country or any territory or possession and any State or the District of Columbia, or
between points in the same State but through any other State or the District of
Columbia or a foreign country.
Committed to a mental institution. A formal commitment of a person to a mental

institution by a court, board, commission, or other lawful authority. The term
includes a commitment to a mental institution involuntarily. The term includes
commitment for mental defectiveness or mental illness. It also includes
commitments for other reasons, such as for drug use. The term does not include a
person in a mental institution for observation or a voluntary admission to a mental
institution.
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Controlled substance. A drug or other substance, or immediate precursor, as

defined in section 102 of the Controlled Substances Act, 21 U.S.C. 802. The term
includes, but is not limited to, marijuana, depressants, stimulants, and narcotic
drugs. The term does not include distilled spirits, wine, malt beverages, or tobacco,
as those terms are defined or used in Subtitle E of the Internal Revenue Code of
1986, as amended.
Crime punishable by imprisonment for a term exceeding 1 year. Any Federal, State
or foreign offense for which the maximum penalty, whether or not imposed, is
capital punishment or imprisonment in excess of 1 year. The term shall not include
(a) any Federal or State offenses pertaining to antitrust violations, unfair trade
practices, restraints of trade, or other similar offenses relating to the regulation of
business practices or (b) any State offense classified by the laws of the State as a
misdemeanor and punishable by a term of imprisonment of 2 years or less. What
constitutes a conviction of such a crime shall be determined in accordance with the
law of the jurisdiction in which the proceedings were held. Any conviction which
has been expunged or set aside or for which a person has been pardoned or has had
civil rights restored shall not be considered a conviction for the purposes of the Act
or this part, unless such pardon, expunction, or restoration of civil rights expressly
provides that the person may not ship, transport, possess, or receive firearms, or
unless the person is prohibited by the law of the jurisdiction in which the
proceedings were held from receiving or possessing any firearms.
Curios or relics. Firearms which are of special interest to collectors by reason of

some quality other than is associated with firearms intended for sporting use or as
offensive or defensive weapons. To be recognized as curios or relics, firearms must
fall within one of the following categories:
(a) Firearms which were manufactured at least 50 years prior to the current date,
but not including replicas thereof;
(b) Firearms which are certified by the curator of a municipal, State, or Federal
museum which exhibits firearms to be curios or relics of museum interest; and
(c) Any other firearms which derive a substantial part of their monetary value from
the fact that they are novel, rare, bizarre, or because of their association with some
historical figure, period, or event. Proof of qualification of a particular firearm
under this category may be established by evidence of present value and evidence
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that like firearms are not available except as collector's items, or that the value of
like firearms available in ordinary commercial channels is substantially less.
Customs officer. Any officer of U.S. Customs and Border Protection, any
commissioned, warrant, or petty officer of the Coast Guard, or any agent or other
person authorized by law to perform the duties of a customs officer.
Dealer. Any person engaged in the business of selling firearms at wholesale or

retail; any person engaged in the business of repairing firearms or of making or
fitting special barrels, stocks, or trigger mechanisms to firearms; or any person
who is a pawnbroker. The term shall include any person who engages in such
business or occupation on a part-time basis.
Destructive device. (a) Any explosive, incendiary, or poison gas (1) bomb, (2)
grenade, (3) rocket having a propellant charge of more than 4 ounces, (4) missile
having an explosive or incendiary charge of more than one-quarter ounce, (5)
mine, or (6) device similar to any of the devices described in the preceding
paragraphs of this definition; (b) any type of weapon (other than a shotgun or a
shotgun shell which the Director finds is generally recognized as particularly
suitable for sporting purposes) by whatever name known which will, or which may
be readily converted to, expel a projectile by the action of an explosive or other
propellant, and which has any barrel with a bore of more than one-half inch in
diameter; and (c) any combination of parts either designed or intended for use in
converting any device into any destructive device described in paragraph (a) or (b)
of this section and from which a destructive device may be readily assembled. The
term shall not include any device which is neither designed nor redesigned for use
as a weapon; any device, although originally designed for use as a weapon, which
is redesigned for use as a signalling, pyrotechnic, line throwing, safety, or similar
device; surplus ordnance sold, loaned, or given by the Secretary of the Army
pursuant to the provisions of section 4684(2), 4685, or 4686 of title 10, United
States Code; or any other device which the Director finds is not likely to be used as
a weapon, is an antique, or is a rifle which the owner intends to use solely for
sporting, recreational, or cultural purposes.
Department of Justice, Washington, DC.
Director of Industry Operations. The principal ATF official in a Field Operations

division responsible for administering regulations in this part.
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Discharged under dishonorable conditions. Separation from the U.S. Armed Forces
resulting from a dishonorable discharge or dismissal adjudged by a general court-
martial. The term does not include any separation from the Armed Forces resulting
from any other discharge, e.g., a bad conduct discharge.
Division. A Bureau of Alcohol, Tobacco, Firearms, and Explosives Division.
Engaged in the business—(a) Manufacturer of firearms. A person who devotes

time, attention, and labor to manufacturing firearms as a regular course of trade or
distribution of the firearms manufactured;
(b) Manufacturer of ammunition. A person who devotes time, attention, and labor
to manufacturing ammunition as a regular course of trade or business with the
principal objective of livelihood and profit through the sale or distribution of the
ammunition manufactured;
(c) Dealer in firearms other than a gunsmith or a pawnbroker. A person who

devotes time, attention, and labor to dealing in firearms as a regular course of trade
or business with the principal objective of livelihood and profit through the
repetitive purchase and resale of firearms, but such a term shall not include a
person who makes occasional sales, exchanges, or purchases of firearms for the
enhancement of a personal collection or for a hobby, or who sells all or part of his
personal collection of firearms;
(d) Gunsmith. A person who devotes time, attention, and labor to engaging in such
activity as a regular course of trade or business with the principal objective of
livelihood and profit, but such a term shall not include a person who makes
occasional repairs of firearms or who occasionally fits special barrels, stocks, or
trigger mechanisms to firearms;
(e) Importer of firearms. A person who devotes time, attention, and labor to
importing firearms as a regular course of trade or business with the principal
objective of livelihood and profit through the sale or distribution of the firearms
imported; and,
(f) Importer of ammunition. A person who devotes time, attention, and labor to
importing ammunition as a regular course of trade or business with the principal
objective of livelihood and profit through the sale or distribution of the
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ammunition imported.
Executed under penalties of perjury. Signed with the prescribed declaration under
the penalties of perjury as provided on or with respect to the return form, or other
document or, where no form of declaration is prescribed, with the declaration:
“I declare under the penalties of perjury that this—(insert type of document, such
as, statement, application, request, certificate), including the documents submitted
in support thereof, has been examined by me and, to the best of my knowledge and
belief, is true, correct, and complete.”
Federal Firearms Act. 15 U.S.C. Chapter 18.
Firearm. Any weapon, including a starter gun, which will or is designed to or may
readily be converted to expel a projectile by the action of an explosive; the frame
or receiver of any such weapon; any firearm muffler or firearm silencer; or any
destructive device; but the term shall not include an antique firearm. In the case of
a licensed collector, the term shall mean only curios and relics.
Firearm frame or receiver. That part of a firearm which provides housing for the
hammer, bolt or breechblock, and firing mechanism, and which is usually threaded
at its forward portion to receive the barrel.
Firearm muffler or firearm silencer. Any device for silencing, muffling, or

diminishing the report of a portable firearm, including any combination of parts,
designed or redesigned, and intended for use in assembling or fabricating a firearm
silencer or firearm muffler, and any part intended only for use in such assembly or
fabrication.
Friendly foreign government. Any government with whom the United States has
diplomatic relations and whom the United States has not identified as a State
sponsor of terrorism.
Fugitive from justice. Any person who has fled from any State to avoid
prosecution for a felony or a misdemeanor; or any person who leaves the State to
avoid giving testimony in any criminal proceeding. The term also includes any
person who knows that misdemeanor or felony charges are pending against such
person and who leaves the State of prosecution.
Handgun. (a) Any firearm which has a short stock and is designed to be held and
fired by the use of a single hand; and
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(b) Any combination of parts from which a firearm described in paragraph (a) can
be assembled.
Hunting license or permit lawfully issued in the United States. A license or permit
issued by a State for hunting which is valid and unexpired.
Identification document. A document containing the name, residence address, date

of birth, and photograph of the holder and which was made or issued by or under
the authority of the United States Government, a State, political subdivision of a
State, a foreign government, political subdivision of a foreign government, an
international governmental or an international quasi- governmental organization
which, when completed with information concerning a particular individual, is of a
type intended or commonly accepted for the purpose of identification of
individuals.
Importation. The bringing of a firearm or ammunition into the United States;

except that the bringing of a firearm or ammunition from outside the United States
into a foreign-trade zone for storage pending shipment to a foreign country or
subsequent importation into this country, pursuant to this part, shall not be deemed
importation.
Importer. Any person engaged in the business of importing or bringing firearms or

ammunition into the United States. The term shall include any person who engages
in such business on a part-time basis.
Indictment. Includes an indictment or information in any court, under which a

crime punishable by imprisonment for a term exceeding 1 year (as defined in this
section) may be prosecuted, or in military cases to any offense punishable by
imprisonment for a term exceeding 1 year which has been referred to a general
court-martial. An information is a formal accusation of a crime, differing from an
indictment in that it is made by a prosecuting attorney and not a grand jury.
Interstate or foreign commerce. Includes commerce between any place in a State

and any place outside of that State, or within any possession of the United States
(not including the Canal Zone) or the District of Columbia. The term shall not
include commerce between places within the same State but through any place
outside of that State.
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Intimate partner. With respect to a person, the spouse of the person, a former
spouse of the person, an individual who is a parent of a child of the person, and an
individual who cohabitates or has cohabitated with the person.
Large capacity ammunition feeding device. A magazine, belt, drum, feed strip, or
similar device for a firearm manufactured after September 13, 1994, that has a
capacity of, or that can be readily restored or converted to accept, more than 10
rounds of ammunition. The term does not include an attached tubular device
designed to accept, and capable of operating only with, .22 caliber rimfire
ammunition, or a fixed device for a manually operated firearm, or a fixed device
for a firearm listed in 18 U.S.C. 922, appendix A.
Licensed collector. A collector of curios and relics only and licensed under the
provisions of this part.
Licensed dealer. A dealer licensed under the provisions of this part.
Licensed importer. An importer licensed under the provisions of this part.
Licensed manufacturer. A manufacturer licensed under the provisions of this part.
assembled if such parts are in the possession or under the control of a person.
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“machine gun” includes a bump-stock-type device, i.e., a device that allows a
semi-automatic firearm to shoot more than one shot with a single pull of the trigger
by harnessing the recoil energy of the semi-automatic firearm to which it is affixed
so that the trigger resets and continues firing without additional physical
manipulation of the trigger by the shooter.
Manufacturer. Any person engaged in the business of manufacturing firearms or

ammunition. The term shall include any person who engages in such business on a
part-time basis.
Mental institution. Includes mental health facilities, mental hospitals, sanitariums,

psychiatric facilities, and other facilities that provide diagnoses by licensed
professionals of mental retardation or mental illness, including a psychiatric ward
in a general hospital.
Misdemeanor crime of domestic violence. (a) Is a Federal, State or local offense

that:
(1) Is a misdemeanor under Federal or State law or, in States which do not classify
offenses as misdemeanors, is an offense punishable by imprisonment for a term of
one year or less, and includes offenses that are punishable only by a fine. (This is
true whether or not the State statute specifically defines the offense as a
“misdemeanor” or as a “misdemeanor crime of domestic violence.” The term
includes all such misdemeanor convictions in Indian Courts established pursuant to
25 CFR part 11.);
(2) Has, as an element, the use or attempted use of physical force (e.g., assault and
battery), or the threatened use of a deadly weapon; and
(3) Was committed by a current or former spouse, parent, or guardian of the

victim, by a person with whom the victim shares a child in common, by a person
who is cohabiting with or has cohabited with the victim as a spouse, parent, or
guardian, (e.g., the equivalent of a “common law” marriage even if such
relationship is not recognized under the law), or a person similarly situated to a
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spouse, parent, or guardian of the victim (e.g., two persons who are residing at the
same location in an intimate relationship with the intent to make that place their
home would be similarly situated to a spouse).
(b) A person shall not be considered to have been convicted of such an offense for
purposes of this part unless:
(1) The person is considered to have been convicted by the jurisdiction in which
the proceedings were held.
(2) The person was represented by counsel in the case, or knowingly and
intelligently waived the right to counsel in the case; and
(3) In the case of a prosecution for which a person was entitled to a jury trial in the
jurisdiction in which the case was tried, either
(i) The case was tried by a jury, or
(ii) The person knowingly and intelligently waived the right to have the case tried
by a jury, by guilty plea or otherwise.
(c) A person shall not be considered to have been convicted of such an offense for
purposes of this part if the conviction has been expunged or set aside, or is an
offense for which the person has been pardoned or has had civil rights restored (if
the law of the jurisdiction in which the proceedings were held provides for the loss
of civil rights upon conviction for such an offense) unless the pardon, expunction,
or restoration of civil rights expressly provides that the person may not ship,
transport, possess, or receive firearms, and the person is not otherwise prohibited
by the law of the jurisdiction in which the proceedings were held from receiving or
possessing any firearms.
National Firearms Act. 26 U.S.C. Chapter 53.
NICS. The National Instant Criminal Background Check System established by the
Attorney General pursuant to 18 U.S.C. 922(t).
Nonimmigrant alien. An alien in the United States in a nonimmigrant classification

as defined by section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)).
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Nonimmigrant visa. A visa properly issued to an alien as an eligible nonimmigrant

by a competent officer as provided in the Immigration and Nationality Act, 8
U.S.C. 1101 et seq.
Pawnbroker. Any person whose business or occupation includes the taking or

receiving, by way of pledge or pawn, of any firearm as security for the payment or
repayment of money. The term shall include any person who engages in such
business on a part-time basis.
Permanently inoperable. A firearm which is incapable of discharging a shot by

means of an explosive and incapable of being readily restored to a firing condition.
An acceptable method of rendering most firearms permanently inoperable is to
fusion weld the chamber closed and fusion weld the barrel solidly to the frame.
Certain unusual firearms require other methods to render the firearm permanently
inoperable. Contact ATF for instructions.
Person. Any individual, corporation, company, association, firm, partnership,

society, or joint stock company.
Pistol. A weapon originally designed, made, and intended to fire a projectile

(bullet) from one or more barrels when held in one hand, and having (a) a
chamber(s) as an integral part(s) of, or permanently aligned with, the bore(s); and
(b) a short stock designed to be gripped by one hand and at an angle to and
extending below the line of the bore(s).
Principal objective of livelihood and profit. The intent underlying the sale or
disposition of firearms is predominantly one of obtaining livelihood and pecuniary
gain, as opposed to other intents such as improving or liquidating a personal
firearms collection: Provided, That proof of profit shall not be required as to a
person who engages in the regular and repetitive purchase and disposition of
firearms for criminal purposes or terrorism. For purposes of this part, the term
“terrorism” means activity, directed against United States persons, which—
(a) Is committed by an individual who is not a national or permanent resident alien

of the United States;
(b) Involves violent acts or acts dangerous to human life which would be a
criminal violation if committed within the jurisdiction of the United States; and
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(c) Is intended—
(1) To intimidate or coerce a civilian population;
(2) To influence the policy of a government by intimidation or coercion; or
(3) To affect the conduct of a government by assassination or kidnapping.
Published ordinance. A published law of any political subdivision of a State which

the Director determines to be relevant to the enforcement of this part and which is
contained on a list compiled by the Director, which list is incorporated by
reference in the Federal Register, revised annually, and furnished to licensees
under this part.
Renounced U.S. citizenship. (a) A person has renounced his U.S. citizenship if the
person, having been a citizen of the United States, has renounced citizenship
either—
(1) Before a diplomatic or consular officer of the United States in a foreign state
pursuant to 8 U.S.C. 1481(a)(5); or
(2) Before an officer designated by the Attorney General when the United States is
in a state of war pursuant to 8 U.S.C. 1481(a)(6).
(b) The term shall not include any renunciation of citizenship that has been
reversed as a result of administrative or judicial appeal.
Revolver. A projectile weapon, of the pistol type, having a breechloading

chambered cylinder so arranged that the cocking of the hammer or movement of
the trigger rotates it and brings the next cartridge in line with the barrel for firing.
Rifle. A weapon designed or redesigned, made or remade, and intended to be fired

from the shoulder, and designed or redesigned and made or remade to use the
energy of the explosive in a fixed metallic cartridge to fire only a single projectile
through a rifled bore for each single pull of the trigger.
Semiautomatic assault weapon. (a) Any of the firearms, or copies or duplicates of

the firearms in any caliber, known as:
(1) Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs (all models),
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(2) Action Arms Israeli Military Industries UZI and Galil,
(3) Beretta Ar70 (SC–70),
(4) Colt AR–15,
(5) Fabrique National FN/FAL, FN/LAR, and FNC,
(6) SWD M–10, M–11, M–11/9, and M–12,
(7) Steyr AUG,
(8) INTRATEC TEC–9, TEC–DC9 and TEC–22, and
(9) Revolving cylinder shotguns, such as (or similar to) the Street Sweeper and
Striker 12;
(b) A semiautomatic rifle that has an ability to accept a detachable magazine and
has at least 2 of—
(1) A folding or telescoping stock,
(2) A pistol grip that protrudes conspicuously beneath the action of the weapon,
(3) A bayonet mount,
(4) A flash suppressor or threaded barrel designed to accommodate a flash

suppressor, and
(5) A grenade launcher;
(c) A semiautomatic pistol that has an ability to accept a detachable magazine and
has at least 2 of—
(1) An ammunition magazine that attaches to the pistol outside of the pistol grip,
(2) A threaded barrel capable of accepting a barrel extender, flash suppressor,

forward handgrip, or silencer,
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(3) A shroud that is attached to, or partially or completely encircles, the barrel and
that permits the shooter to hold the firearm with the nontrigger hand without being
burned,
(4) A manufactured weight of 50 ounces or more when the pistol is unloaded, and
(5) A semiautomatic version of an automatic firearm; and
(d) A semiautomatic shotgun that has at least 2 of—
(1) A folding or telescoping stock,
(2) A pistol grip that protrudes conspicuously beneath the action of the weapon,
(3) A fixed magazine capacity in excess of 5 rounds, and
(4) An ability to accept a detachable magazine.
Semiautomatic pistol. Any repeating pistol 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.
Semiautomatic rifle. 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.
Semiautomatic shotgun. Any repeating shotgun 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.
Short-barreled rifle. A rifle having one or more barrels less than 16 inches in
length, and any weapon made from a rifle, whether by alteration, modification, or
otherwise, if such weapon, as modified, has an overall length of less than 26
inches.
Short-barreled shotgun. A shotgun having one or more barrels less than 18 inches
in length, and any weapon made from a shotgun, whether by alteration,
modification, or otherwise, if such weapon as modified has an overall length of
less than 26 inches.
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Shotgun. A weapon designed or redesigned, made or remade, and intended to be

fired from the shoulder, and designed or redesigned and made or remade to use the
energy of the explosive in a fixed shotgun shell to fire through a smooth bore either
a number of ball shot or a single projectile for each single pull of the trigger.
State. A State of the United States. The term shall include the District of Columbia,
the Commonwealth of Puerto Rico, and the possessions of the United States (not
including the Canal Zone).
State of residence. The State in which an individual resides. An individual resides

in a State if he or she is present in a State with the intention of making a home in
that State. If an individual is on active duty as a member of the Armed Forces, the
individual's State of residence is the State in which his or her permanent duty
station is located, as stated in 18 U.S.C. 921(b). The following are examples that
illustrate this definition:
Example 1. A maintains a home in State X. A travels to State Y on a hunting,

fishing, business, or other type of trip. A does not become a resident of State Y by
reason of such trip.
Example 2. A maintains a home in State X and a home in State Y. A resides in

State X except for weekends or the summer months of the year and in State Y for
the weekends or the summer months of the year. During the time that A actually
resides in State X, A is a resident of State X, and during the time that A actually
resides in State Y, A is a resident of State Y.
Example 3. A, an alien, travels to the United States on a three-week vacation to

State X. A does not have a state of residence in State X because A does not have
the intention of making a home in State X while on vacation. This is true
regardless of the length of the vacation.
Example 4. A, an alien, travels to the United States to work for three years in State
X. A rents a home in State X, moves his personal possessions into the home, and
his family resides with him in the home. A intends to reside in State X during the
3–year period of his employment. A is a resident of State X.
Unlawful user of or addicted to any controlled substance. A person who uses a

controlled substance and has lost the power of self-control with reference to the use
of controlled substance; and any person who is a current user of a controlled
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substance in a manner other than as prescribed by a licensed physician. Such use is

not limited to the use of drugs on a particular day, or within a matter of days or
weeks before, but rather that the unlawful use has occurred recently enough to
indicate that the individual is actively engaged in such conduct. A person may be
an unlawful current user of a controlled substance even though the substance is not
being used at the precise time the person seeks to acquire a firearm or receives or
possesses a firearm. An inference of current use may be drawn from evidence of a
recent use or possession of a controlled substance or a pattern of use or possession
that reasonably covers the present time, e.g., a conviction for use or possession of a
controlled substance within the past year; multiple arrests for such offenses within
the past 5 years if the most recent arrest occurred within the past year; or persons
found through a drug test to use a controlled substance unlawfully, provided that
the test was administered within the past year. For a current or former member of
the Armed Forces, an inference of current use may be drawn from recent
disciplinary or other administrative action based on confirmed drug use, e.g., court-
martial conviction, nonjudicial punishment, or an administrative discharge based
on drug use or drug rehabilitation failure.
Unserviceable firearm. A firearm which is incapable of discharging a shot by

means of an explosive and is incapable of being readily restored to a firing
condition.
U.S.C. The United States Code.
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22 U.S.C.A. § 2794 – Definitions
For purposes of this chapter, the term--
(1) “excess defense article” has the meaning provided by section 2403(g) of this
title;
(2) “value” means, in the case of an excess defense article, except as otherwise
provided in section 2761(a) of this title, not less than the greater of--
(A) the gross cost incurred by the United States Government in repairing,
rehabilitating, or modifying such article, plus the scrap value; or
(B) the market value, if ascertainable;
(3) “defense article”, except as provided in paragraph (7) of this section, means,
with respect to a sale or transfer by the United States under the authority of this
chapter or any other foreign assistance or sales program of the United States--
(A) any weapon, weapons system, munition, aircraft, vessel, boat, or other
implement of war,
(B) any property, installation, commodity, material, equipment, supply, or

goods used for the purposes of making military sales,
(C) any machinery, facility, tool, material, supply, or other item necessary for
the manufacture, production, processing, repair, servicing, storage,
construction, transportation, operation, or use of any article listed in this
paragraph, and
(D) any component or part of any article listed in this paragraph,
but does not include merchant vessels or (as defined by the Atomic Energy Act of
1954 [42 U.S.C.A. § 2011 et seq.]) source material (except uranium depleted in the
isotope 235 which is incorporated in defense articles solely to take advantage of
high density or pyrophoric characteristics unrelated to radioactivity), byproduct
material, special nuclear material, production facilities, utilization facilities, or
atomic weapons or articles involving Restricted Data;
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(4) “defense service”, except as provided in paragraph (7) of this section, means,
with respect to a sale or transfer by the United States under the authority of this
chapter or any other foreign assistance or sales program of the United States, any
service, test, inspection, repair, training, publication, technical or other assistance,
or defense information (as defined in section 2403(e) of this title), used for the
purposes of making military sales, but does not include design and construction
services under section 2769 of this title;
(5) “training” includes formal or informal instruction of foreign students in the

United States or overseas by officers or employees of the United States, contract
technicians, or contractors (including instruction at civilian institutions), or by
correspondence courses, technical, educational, or information publications and
media of all kinds, training aid, orientation, training exercise, and military advice
to foreign military units and forces;
(6) “major defense equipment” means any item of significant military equipment
on the United States Munitions List having a nonrecurring research and
development cost of more than $50,000,000 or a total production cost of more than
$200,000,000;
(7) “defense articles and defense services” means, with respect to commercial
exports subject to the provisions of section 2778 of this title, those items
designated by the President pursuant to subsection (a)(1) of such section;
(8) “design and construction services” means, with respect to sales under section
2769 of this title, the design and construction of real property facilities, including
necessary construction equipment and materials, engineering services, construction
contract management services relating thereto, and technical advisory assistance in
the operation and maintenance of real property facilities provided or performed by
any department or agency of the Department of Defense or by a contractor
pursuant to a contract with such department or agency;
(9) “significant military equipment” means articles--
(A) for which special export controls are warranted because of the capacity of
such articles for substantial military utility or capability; and
(B) identified on the United States Munitions List;
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(10) “weapons of mass destruction” has the meaning provided by section 2302(1)
of Title 50; and
(11) “Sales territory” means a country or group of countries to which a defense

article or defense service is authorized to be reexported.

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the singular, and vice versa, and words imparting the masculine gender shall
the scope thereof.
Appropriate ATF officer. An officer or employee of the Bureau of Alcohol,

Tobacco, Firearms, and Explosives (ATF) specified by ATF Order 1130.34,
Delegation of the Director's Authorities in 27 CFR Part 447, Importation of Arms,
Ammunition and Implements of War.
Article. Any of the defense articles enumerated in the U.S. Munitions Import List
(USMIL).
Bureau. Bureau of Alcohol, Tobacco, Firearms, and Explosives, the Department of

Justice.
Carbine. A short-barrelled rifle whose barrel is generally not longer than 22 inches
and is characterized by light weight.
CFR. The Code of Federal Regulations.
Chemical agent. A substance useful in war which, by its ordinary and direct
chemical action, produces a powerful physiological effect.
Defense articles. Any item designated in § 447.21 or § 447.22. This term includes
models, mockups, and other such items which reveal technical data directly
relating to § 447.21 or § 447.22.
Defense services.
(a) The furnishing of assistance, including training, to foreign persons in the

design, engineering, development, production, processing, manufacture, use,
operation, overhaul, repair, maintenance, modification, or reconstruction of
defense articles, whether in the United States or abroad; or
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(b) The furnishing to foreign persons of any technical data, whether in the United
States or abroad.
Department of Justice, Washington, DC 20226.
Executed under the penalties of perjury. Signed with the prescribed declaration
under the penalties of perjury as provided on or with respect to the application,
form, or other document or, where no form of declaration is prescribed, with the
declaration: “I declare under the penalties of perjury that this ______ (insert type
of document such as statement, certificate, application, or other document),
including the documents submitted in support thereof, has been examined by me
and, to best of my knowledge and belief, is true, correct, and complete.”
Firearms. A weapon, and all components and parts therefor, not over .50 caliber
which will or is designed to or may be readily converted to expel a projectile by
the action of an explosive, but shall not include BB and pellet guns, and muzzle
loading (black powder) firearms (including any firearm with a matchlock,
flintlock, percussion cap, or similar type of ignition system) or firearms covered by
Category I(a) established to have been manufactured in or before 1898.
Import or importation. Bringing into the United States from a foreign country any
of the articles on the Import List, but shall not include intransit, temporary import
or temporary export transactions subject to Department of State controls under
Title 22, Code of Federal Regulations.
Import List. The list of articles contained in § 447.21 and identified therein as “The
U.S. Munitions Import List”.
Machinegun. A “machinegun”, “machine pistol”, “submachinegun”, or “automatic

rifle” is a firearm originally designed to fire, or capable of being fired fully
automatically by a single pull of the trigger.
Machinegun. A “machinegun”, “machine pistol”, “submachinegun”, or “automatic

rifle” is a firearm which shoots, is designed to shoot, or can be readily restored to
shoot, automatically more than one shot, without manual reloading, by a single
40
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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
machinegun, and any combination of parts from which a machinegun can be
“machinegun” includes a bump-stock-type device, i.e., a device that allows a semi-
automatic firearm to shoot more than one shot with a single pull of the trigger by
harnessing the recoil energy of the semi-automatic firearm to which it is affixed so
that the trigger resets and continues firing without additional physical manipulation
of the trigger by the shooter.
Permit. The same as “license” for purposes of 22 U.S.C. 1934(c).
Person. A partnership, company, association, or corporation, as well as a natural

person.
Pistol. A hand-operated firearm having a chamber integral with, or permanently

aligned with, the bore.
Revolver. A hand-operated firearm with a revolving cylinder containing chambers

for individual cartridges.
Rifle. A shoulder firearm discharging bullets through a rifled barrel at least 16

inches in length, including combination and drilling guns.
Sporting type sight including optical. A telescopic sight suitable for daylight use on
a rifle, shotgun, pistol, or revolver for hunting or target shooting.
This chapter. Title 27, Code of Federal Regulations, Chapter II (27 CFR Chapter
II).
United States. When used in the geographical sense, includes the several States, the
Commonwealth of Puerto Rico, the insular possessions of the United States, the
District of Columbia, and any territory over which the United States exercises any
powers of administration, legislation, and jurisdiction.
41
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27 C.F.R. § 478.182 – Forfeitures
Any firearm involved in any violation of the provisions of 26 U.S.C. Chapter 53,
shall be subject to seizure, and forfeiture under the internal revenue laws:
Provided, however, That the disposition of forfeited firearms shall be in
conformance with the requirements of 26 U.S.C. 5872. In addition, any vessel,
vehicle or aircraft used to transport, carry, convey or conceal or possess any
firearm with respect to which there has been committed any violation of any
provision of 26 U.S.C. Chapter 53, or the regulations in this part issued pursuant
thereto, shall be subject to seizure and forfeiture under the Customs laws, as
provided by the act of August 9, 1939 (49 U.S.C. App., Chapter 11).
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Enlarged Individual Images – Semi-Automatic Firearm Control Group for

AR-15 Type Firearm

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Guedes Prince Brief

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Guedes Prince Brief

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USCA Case #19-5042 Document #1775764 Filed: 03/04/2019 Page 1 of 40

UNITED STATES COURT OF APPEALS

DAMIEN GUEDES, et al.,

BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES, et al.,

On Appeal from the United States District Court

Brief for Appellants Damien Guedes, Shane Roden, Firearms Policy

Joshua Prince, Esq. Erik S. Jaffe

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES

1. Parties and Amici

Pursuant to Circuit Rule 28(a)(1)(A), Appellants Damien Guedes, Shane

Roden, Firearms Policy Foundation, Madison Society Foundation, Inc., and

Firearms Policy Foundation

Madison Society Foundation, Inc.

Florida Carry, Inc.

Firearms Policy Coalition, Inc.

Bureau of Alcohol, Tobacco, Firearms and Explosives

United States of America

2. Ruling Under Review

memorandum opinion denying Guedes, et al. a preliminary injunction precluding

the implementation and enforcement of the new regulation. Judge Dabney L.

been before this Court before.

/s/ Adam Kraut

DISCLOSURE OF CORPORATE AFFILIATIONS

D.C. Circuit Case Number: 19-5042

1. Is said party a subsidiary or affiliate of a publicly owned corporation? If yes, list

/s/ Adam Kraut

(Page 4 of Total) iii

CERTIFICATE AS TO PARTIES, RULINGS AND RELATED CASES ....... ii

CERTIFICATE OF COMPLIANCE ................................................................. 30

Authorities principally relied upon are marked with an *

(Page 8 of Total) vii

ATF Bureau of Alcohol, Tobacco, Firearms, and Explosives

FPC Firearms Policy Coalition

FPF Firearms Policy Foundation

GCA Gun Control Act

NFA National Firearms Act

NRPM Notice of Proposed Rulemaking

(Page 9 of Total) viii

The term “machinegun” means any weapon which shoots, is designed to

18 U.S.C. § 921(a)(23) and 26 U.S.C. § 5845(b). Prior to the current rulemaking,

27 C.F.R. § 478.11; 27 C.F.R. § 479.11.

“alone determines whether a firearm is a machinegun.” Fed. Reg. 66533-34. Yet

requires citizens to surrender or destroy such devices under threat of felony

approved ATF’s expansive redefinition of those words to encompass any process

mechanical operation of triggers on lawful semi-automatic firearms, and are

Any other interpretation of that phrase is contrary to the contemporary

understanding of those words and yields absurd results.

The word “automatically” likewise means by mechanical process without

further human intervention and to “shoot … automatically” means to continue to

forward to meet their finger, human intervention occurs, and nothing is

functions of the trigger.

In any event, even if the statutory definition was thought to be ambiguous in

Appellants readily satisfy the other requirements for a preliminary

injunction, and nothing in the opinion below suggests otherwise. Confiscation or

destruction of property under threat of felony is irreparable injury and there is no

status quo for the pendency of this suit.

District Court jurisdiction is pursuant to 5 U.S.C. §§ 702 and 704 and 28

U.S.C. § 1292(a)(1). The district court denied Appellants an injunction on

The issues on appeal are:

2. Whether the rule of lenity applies if the definition of machinegun was

STATUTES AND REGULATIONS

Statutory authorities are included in the addendum to this brief.

STATEMENT OF THE CASE

(“NPRM”) that proposed to expand the regulatory definition of a “machinegun” to

include previously legal so-called “bump stocks”. 1

As relevant to this litigation, legal bump-stock-type devices do not change

group of a semi-automatic AR-15 has three main components: the trigger,