A Better Approach to the Firearms Law Dispute

National Review Online

Friday, August 14, 2026

 

The Trump administration has announced that it does not intend to file an appeal in the case of Silencer Shop Foundation v. ATF (consolidated with Jensen v. ATF). At stake in that litigation was whether the federal government is constitutionally permitted to require that those who obtain suppressors, short-barreled rifles (SBRs), and short-barreled shotguns (SBSs) must first register them with the ATF. Since 1934, that has been the law of the land. As of this week, it is not — for some Americans, at least. What happens next? Nobody is quite sure.

 

The court’s reasoning is thoroughly persuasive, and we will shed no tears over the weakening of some of the NFA’s least defensible elements. But this case has played out in a way that undermines the stability and predictability of the law. The best course now is for the Trump administration to appeal the decision so that a higher court can affirm that ruling more definitively.

 

The U.S. District Court for the Northern District of Texas’s ruling rests upon a change to the law that Congress made last year. Since 1934, those who have taken possession of suppressors, SBRs, and SBSs have been obliged to pay — and to prove that they had paid — a $200 tax. In 2025, however, the “One Big Beautiful Bill Act” zeroed out that tax. That zeroing out presented the federal government with a serious problem. Historically, the registration requirements in the NFA had been constitutionally justified under Congress’s power to tax. In 1937, for example, in Sonzinsky v. United States, the Supreme Court upheld the $200 registration fee on the ground that, “as it is not attended by an offensive regulation, and since it operates as a tax, it is within the national taxing power.” But since 2025, certain items within the NFA no longer require the $200 registration fee, and, in consequence, the registration requirement is no longer “within the national taxing power.” Because the Constitution grants only a small number of enumerated powers to the federal government, this raised the question of under what power they could plausibly be justified going forward — a question that the District Court concluded had no satisfactory answer.

 

The court’s analysis is sound. Under Supreme Court precedent, an essential feature of a tax is that it produces at least some revenue for the government; a tax set at $0 produces none. As the decision confirms, taxes in other laws cannot be deemed to be part of the same regulatory scheme without handing Congress an impermissible general police power. And, for once, the malleable commerce clause cannot supply a justification, because the NFA’s text, structure, placement in the tax code, and statutory history show that Congress enacted the challenged provisions under the taxing power alone — unlike other federal gun laws that have been expressly tied to interstate commerce. Thus, the Court concluded, those provisions must be struck down.

 

So far, so good. And yet the result of this ruling is not as clear as it would be had it been issued by, say, the Supreme Court. The enforcement prohibition applied “against the Jensen plaintiffs and, where applicable, their members and customers.” In short: Some parts of the NFA have been struck down, in some places, for some people.

 

What should the federal government do in response to this mess? It could, in theory, decline to appeal the ruling and then decline to enforce those parts of the law everywhere, against all people. But, because there is no guarantee that the next administration would follow suit, that approach could yield a situation in which some of America’s most potent gun laws are in force only when a Democrat sits in the White House. That way lies chaos.

 

Nor do conservatives have much to gain from the habit of willfully leaving lower court orders in place. In this case, the policy outcome is salutary. But, as President Trump’s two presidencies have ably shown, the Democrats have far more to gain than the Republicans from treating the edicts of random court — or, more typically, deliberately forum-shopped court — as if they represented final national injunctions. The U.S. District Court for the Northern District of Texas is not the Supreme Court, or even the Fifth Circuit. By declining to take the case up the usual jurisprudential ladder — and thereby elevating this decision into something that it is manifestly not — the Trump administration is furthering a trend that, in other circumstances, it has rightly decried.

 

There have, in American history, been a handful of circumstances in which it was acceptable for a federal administration to decline to defend a federal law. This does not rise to that level. The litigation is too new, the court that issued the injunction is too small, the confusion caused by the ruling is too great. Odd as it might seem, the best way for the Trump administration to put this fine ruling on a firmer footing is to challenge it.