It might seem counterintuitive, but when Congress eliminated the $200 registration fee under the 1934 National Firearms Act for the registration of suppressors and short-barreled rifles, it rendered the law unconstitutional. So held Judge Jimmy Hendrix*, and the government has not as yet appealed.
House Republicans added a provision eliminating the $200 tax on suppressors and short-barreled rifles when they passed Mr. Trump’s major spending bill last year.
That change triggered the downfall of the law, which had for 92 years required buyers of restricted arms to submit their fingerprints and seek A.T.F. approval. Gun advocacy groups quickly filed several lawsuits seeking to further weaken the law, arguing that the registration process was unconstitutional without the tax component.
Judge Hendrix agreed with that argument, ruling in a 66-page order that because the law no longer generated revenue, “its regulatory provisions cannot be upheld under the taxing power” given to Congress in Article 1 of the Constitution.
One might presume that the power to tax was secondary to the prohibition against impairment of a fundamental constitutional right, but when it came to silencers and short-barreled shotguns, not so much. Perhaps it was because the law had been on the books for such a long time, having been enacted following the heady times of the St. Valentine’s Day Massacre, where people were more concerned about gangsters shooting up the streets than Eliot Ness knocking down their doors. And even the now-venerated Justice Nino Scalia inserted the inexplicable errant paragraph in Heller to cover such ancillary devices as silencers.
Notably, the $200 registration fee, a tax as the courts characterized it that justified the impairment of a constitutional right in the post-Heller days, was no longer the burden it was originally meant to be.
Millions of N.F.A. restricted guns and suppressors were sold every year under the registration process, which is managed by the Bureau of Alcohol, Tobacco, Firearms and Explosives. The $200 tax was designed to be prohibitively expensive in 1934 dollars, but by 2026 amounted to a fraction of the cost of a modern firearm or suppressor.
Nonetheless, the Big Beautiful Bill, so named because of Trump’s limited vocabulary and belief that anyone who supported him would be enthralled by his mad naming skills, eliminated the minimal $200 tax on silencers and short-barreled guns anyway. It’s unlikely that anyone considered that the elimination of the tax would take down the law, but now that it’s happened, the Department of Trump Justice has a decision to make, whether to appeal or let it go.
The Justice Department did not explain why it did not immediately appeal the ruling. In an unsigned statement to The New York Times hours before the midnight deadline, the Justice Department said that it “respects Americans’ Second Amendment rights and is currently assessing the impact of the court’s ruling.”
It was a retreat by the Trump administration, which had argued after Mr. Trump’s law was passed last year that Congress still had the authority to restrict particularly dangerous and easily concealable weapons. The government’s move to forgo a stay of the ruling — or issue any public statement on the issue — came after gun rights groups and dozens of Republican lawmakers publicly pressured Todd Blanche, the attorney general, to allow the ruling to stand.
The impact of silencers being available for sale is quite obvious. For people inclined toward nefarious use of a weapon that otherwise makes a fairly loud noise, this would enable them to use a gun for their dirty deeds without being so easily detected. There are, of course, legitimate uses for suppressors, such as the protection of hearing and brain injury. The legitimate need for more easily concealable rifles and shotguns is a little harder to find, although no doubt some people will come up with some explanation for why they serve some acceptable purpose beyond being concealed under raincoats.
No doubt law-abiding gun users and enthusiasts will argue that it’s not the silencers or short-barreled guns that commit crimes, but their users. As no stay has been sought nor notice of appeal filed, it seems highly unlikely that the DoJ will fight Judge Hendrix’s sound if troubling ruling. It would thus appear that these long-held NFA restrictions are now gone for good. They say silence is golden. It looks like we’ll find out.
*The ruling by Judge James Wesley Hendrix of the Northern District of Texas does not apply universally, and the law remains in effect in states like California, New York and Washington, D.C.
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>It’s unlikely that anyone considered that the elimination of the tax would take down the law,
I must disagree with this; contemporary to the reconciliation for the bill where the Parliamentarian was reviewing the legislation, this possibility came up repeatedly in the pro-gun community. It seems decidedly unlikely that the people who drafted the legislation did not consider this possibility.
it’s hardly like this law mattered in terms of “easily concealable” rifles and shotguns. There were already a million loopholes to already have a SBR (short barrel rifle). All this does is get rid of weird rules like it’s legal to carry a certain gun but if it touches your shoulder you are committing a felony.
There is no gun that is legal to own but not to shoulder. You are referencing that the minor difference between a gun stock and a brace is what turns what would be an illegal SBR into a legal pistol. I have of of these.
So the immediate fight is whether buyers of short-barrelled rifles and suppressors have to send in forms, fingerprints, etc?
Correct. I’m currently holding off on building my 300 BLK SBR specifically because I would rather not register it if I did not have to.
The side effects for states are going to be big if this is eventually expanded nationwide and will mess with a lot of very pro-2A states that outlaw SBR/SBS and suppressors with the exception of those that comply with the NFA if the ATF stops accepting Form 1 and 4. In my state, for example, NFA items are considered “Weapons of Mass Death and Destruction” and banned with a carveout for those that comply with the NFA. Without Form 1 and Form 4, there is no way to comply with NC law and nobody will be getting anything until it’s fixed at the state level.
A suppressor isn’t going to really help a criminal much and allow them to hide their deeds – instead of your typical AR15 putting out 155ish dB at the shooters ears, it’s around 140dB, and definitely not hearing safe. They are also massively expensive with a lower-end one upwards of $800. This isn’t going to lead to an uptick in silent assassins, but will lead to range safety officers and trainers having less hearing damage since it eliminates the massive concussion of rifle fire indoors.
The SBR/SBS laws are kind of absurd these days since you can legally have an AR15 or AK that is considered a “pistol” that is identical to a SBR except that it has a “pistol brace” instead of a “stock.” If you aren’t a gun person and you look at a “pistol brace” and “stock” side by side you aren’t going to be able to tell the difference and you can shoulder both of them just fine and fire them as a rifle.
I agree with JMK that this has to have been considered. While it might not be the first thing that comes to mind when one reads “firearms community”, at least specific aspects of the law have always been of direct import and necessarily have gotten a lot of discussion/debate/effort over the decades. The NFA in particular has gotten greater and greater attention in the last 20 years, along with the various major amendments over time. This is perhaps one rare case where a surprisingly high proportion of “normal people” will have at least heard some legal arguments around it.
And while this isn’t the way I would have liked to see it happen vs Congress passing something directly like the hearing protection act, I do think suppressors and SBRs were always odd ducks on the regulation vs machine guns and explosives. I have a couple of suppressors, and suppressed guns are still *loud*. Going from 160-175 dB to 125-140 dB is simultaneously a big difference (100-1000x less sound impulse energy, 4-16x less subjective “loudness”), and also still is dangerous/loud (a jackhammer is maybe 110-120 dB). That someone could be in a crowd and exchanging shots with a firearm as little puffs of compressed air is pure hollywood. I dunno, I won’t claim that there are zero crimes ever where a suppressor might not aid the criminals, but I’m skeptical it’s that much of a factor particularly in an era of ever more ubiquitous mass surveillance. For a rifle as well, a shorter barrel is less, not more, effective. A rifle with a 14″ barrel instead of a 16″ barrel, or 22″ long instead of 26″, is still a big object, not exactly going in the back pocket. For concealment we’ve got handguns, and aren’t handguns the major weapon of crime by volume?
And as you said, evidence about the dangers of hearing loss, and the negative environmental effects of loud noise too fwiw, has continued to pile up. Last few years there has been a lot of research on hearing loss being a significant risk factor in dementia for example. The public safety aspect, and pure public nuisance aspect for that matter (people who live near gun ranges or in the country during hunting season might appreciate that dropping down a good number of levels) seems significant? FWIW, many countries in Europe with extremely strict gun laws don’t regulate suppressors at all.
All that said I don’t like how current firearms jurisprudence has come about though. I am concerned it doesn’t really leave any actual firm foundation for dealing with truly dangerous stuff, or both the risks and promises that newer tech is bringing. There’s room I think for good compromises with new tech that would reduce a lot of gun deaths/crime without impacting law abiding citizen enjoyment but we won’t be able to realize it without better foundations. And on the risk side, afaik some future railgun or laser gun wouldn’t actually be a “firearm” under current federal law at all and thus totally unregulated.
One small twist as well: it sounds like this may result in suppressors/SBRs becoming UNavailable in some states they were legal in before? Basically it sounds like some states simply don’t regulate them anymore, but in others the law essentially goes “these are illegal by default, unless you do the form dance and get the tax stamp from the feds”. So if nobody can get said stamp anymore, does that mean nobody in that state can buy them anymore? It’s not like there was any ruling against regulation of these items per se on 2A grounds right, just the federal justification is now undermined? Interesting times.
I mean, I suppose you could still get the tax stamp if your state required it, but that doesn’t sound right somehow.
My understanding of the history of the NFA is that making it a tax was an end run around the Second Amendment. The whole short barreled rifle and short barreled shotgun nonsense was there because the NFA was also going to apply to pistols and the minimum barrel length was to close a loophole. Instead we have the opposite with AR and AK “pistols” to sidestep the SBR tax. Suppressors were added at the last minute because of their popularity with poachers.
Outside the US suppressors are lightly regulated and some jurisdictions actually require them for hunting. If a suppressor was unregulated or a simple 4473 item I would own one or more.
As for criminal use, if the criminals thought it was important they would be using home made or smuggled suppressors now just as they do with Glock Switches to make machine guns.
Making the tax $0 was actually a clever trick to gut the NFA, although this requires follow through to prevent a subsequent Congress from making the tax $500. I’m currently stuffed because Oregon law requires a tax stamp and the Democrat super majority wants more gun control
Suppressors do not silence gunshots. They reduce the noise some, but no where near what TV and Hollywood would have you believe. And I like how you used the Saint Valentine’s Day Massacre, where fully automatic Thompson sub machine guns were primarily used. I’ve never seen mention of suppressors, short barrel rifles, or short barrel shotguns being used.
As an aside, the Winchester rifle John Wayne used in Stagecoach was an NFA item because it had a 14” barrel. It was made that way, not cut down later, as it was manufactured before the NFA was ever thought of.
[Ed. Note: The St. Valentine’s Day Massacre was from the NYT article. I can’t take credit for that.]
A .22lr pistol with subsonic ammo and a can is Hollywood quiet. And can be lethal.
I don’t like the idea of having major changes in federal law by way of the government not appealing a district judges order.
If this does go in to effect nationally you will see a boom market for drop in triggers that turn a semi AR to full auto.
the entire NFA wasn’t tossed, just the registration for SBRs, SBSs, and suppressors.