DOJ Stakes out NFA Tax Authority

The U.S. Department of Justice (DOJ) filed a brief outlining its position that certain requirements under the National Firearms Act (NFA) are still constitutional in light of the One Big Beautiful Bill Act (OBBB)’s elimination of NFA taxes on the making and transferring of four types of regulated items (i.e., short-barreled rifles and shotguns, suppressors and other concealable firearms that fall under the “any other weapons” (AOW) NFA category). Following the passage of the OBBB, several plaintiffs filed Silencer Shop Foundation et al. v. ATF, et al., which is a constitutional challenge to the remaining NFA requirements for the aforementioned items. Plaintiffs argue that because the OBBB eliminated the taxes for those NFA items, the remaining NFA requirements for those firearms are no longer supported by Congress’s taxing power, nor any other congressional power under the Constitution. Plaintiffs moved for summary judgment on this question, and, yesterday, DOJ filed its response in opposition to summary judgment and in favor of granting summary judgment to the government.

DOJ’s brief defends the constitutionality of the law. It argues that the remaining NFA requirements continue to be supported under Congress’s taxing power, Commerce Clause and Necessary and Proper Clause. As for the taxing power, DOJ contends that “the regulatory requirements that plaintiffs challenge support the collection and enforcement of another NFA tax that the OBBB left intact—the NFA’s tax on businesses that manufacture, distribute, or deal in NFA firearms.” Likewise, DOJ argues that the remaining requirements are independently authorized under the Commerce Clause and Necessary and Proper Clause because the NFA “regulates, at its core, manufacturers, distributors, dealers, and purchasers as they participate in an interstate firearms market and the firearms that flow through that market, and enforces its regulations through criminal prohibitions that are tied to economic activities and, in some cases, expressly to interstate commerce.” DOJ further opined that even interstate activities subject to the NFA still fall within congressional power to regulation because they “are part of an economic class of activities that substantially affect interstate commerce.” Finally, DOJ pushed back on the plaintiffs’ argument that the challenged NFA requirements violate the Second Amendment, arguing that the Supreme Court has “made clear” in previous rulings that “the Second Amendment does not guarantee the right to possess short-barreled shotguns, a holding that applies equally to short-barreled rifles and at least some AOWs.” And the U.S. Court of Appeals for the Fifth Circuit—whose precedent controls in this challenge in the U.S. District Court for the Northern District of Texas—has already held that the NFA’s regulations as to suppressors are presumptively lawful. DOJ added, however, that the Second Amendment analysis “would be different for similar restrictions made applicable to ordinary pistols and rifles.”