The official announcement this week that the Department of Justice won’t appeal the District Court ruling that NFA regulation of suppressors and short-barrel long guns is unconstitutional is a big win for all of us, and worth celebrating. But slow your roll.
I wouldn’t treat the enjoined NFA provisions as permanently defeated. They’re really just in cryosleep.
They can return in one of two ways:
1. A future Congress can restore the tax, even if it’s just one dollar. That would restore the argument that the NFA is an exercise in Congress’s taxing power. We only won the Jensen case based on that taxing power question. The court didn’t rule on any Second Amendment implications of the NFA.
2. Because we only have a District Court win here, a future administration could simply announce that they disagree with the ruling and enforce the enjoined provisions elsewhere. Gun rights orgs and plaintiffs will then sue (or back a criminal defendant), and then we’ll have to see what the circuits have to say.
This is why I really wanted a Fifth Circuit ruling on what the District Court judge decided here. If the Fifth Circuit had ruled the same way, at least we’d then have a circuit split set up ahead of time when another anti-gun Circuit upholds the NFA down the road.
So enjoy your easy-to-buy suppressors and SBR’s while you can. This may not last as long as we’d all hope.
Kostas Moros is Director of Legal Research and Education for the Second Amendment Foundation.