Good afternoon, everyone, and welcome back to TFB’s Silencer Saturday, brought to you by Yankee Hill Machine, manufacturers of the new Victra 20-gauge shotgun suppressor. Once again, we have exciting lawsuit news in the world of silencers. Portions of the NFA may be gone for good. But the decision left a lot of information up in the air, so let’s talk through some possibilities.
Silencer Saturday @ TFB:
This is not legal advice. I am a lawyer, but I am not your lawyer. Do not make any decisions as a result of reading this general educational material. If you need to make a decision, speak with competent counsel licensed in your jurisdiction.
Background
Way back in Silencer Saturday #391, we covered the Silencer Shop v. ATF lawsuit in its initial stages. The crux of that case was that the National Firearms Act was only a valid law because the federal government can charge taxes. The Big Beautiful Bill dropped the amount charged for most tax stamps down to $0. This lawsuit asked the semi-metaphysical question of whether a tax is a tax when it collects no money. Another similar case, Jensen v. ATF, was filed at almost the same time in the same district. That case was ultimately combined with the Silencer Shop case in the interest of efficiency.
Social media and the gun news ecosystem went crazy on August 5th when the judge ruled on these cases. The decision struck down the NFA, at least in most ways, but how exactly it will apply was initially lost in the upswell of excitement. This is a huge win for gun lovers, to be sure. But it is not nearly as cut and dry as many people thought at first glance.
To understand why this is so messy, we have to understand another Supreme Court case. In Trump v. CASA, SCOTUS held (in a 6-3 vote) that federal district and circuit courts (the trial and initial appeal levels) cannot issue orders with nationwide effect. There is an old joke among lawyers that goes “What is the difference between God and a US District Court judge? God knows he is not a US District Court judge.” Before the CASA decision, it was not uncommon for a federal district court judge to hear a case where one person or group disagreed with a federal action, and to issue a nationwide ban on that federal conduct as a result. The arguments for and against this practice are somewhat political, but eventually SCOTUS weighed in to stop it.
CASA is the reason this decision does not apply nationwide. It can’t. Even if the ATF appeals to the 5th Circuit, and that court agrees with the lower court, this decision would only apply to the parties rather than the entire 5th Circuit. The judge took the time to explain that his hands were tied, and that though it would lead to some odd outcomes, CASA is the controlling law and he must follow it.
What Does This Decision Actually Do?
The biggest question at this point is what will actually happen as a result of this decision. Time for the classic lawyer answer: it depends. There are a lot of ways this could shake out. The first thing to understand is timing. This decision does not apply to anyone anywhere for at least a week from August 5th.
The judge’s order gives that window before application “to allow the defendants to seek relief, if any, at the appellate level.” The defendants (ATF and the DOJ more generally) must file a notice of appeal within that timeframe or the judgment becomes effective automatically. If they do appeal, it may be a while until this case is resolved at the 5th Circuit.
The order also does not apply to all NFA items. Machine guns and DDs are still covered. Silencers, SBRs, and SBSs are not subject to the NFA. But AOWs are for some people and not for other people. The plaintiffs in the Jensen case did not claim they owned or planned to own AOWs, so the court did not address their claims around those items.
This decision has other very messy applications. It only applies to the parties, not to everyone. Other than the few individual plaintiffs, the lineup of parties this decision applies to includes associations, dealers, manufacturers, and states. But how and when it applies to each is a complicated question.
Sadly for silencer and short barrel enthusiasts who live in the states that joined this lawsuit, when this order becomes effective, it will not do so across the entire state for all state residents. Instead, it applies to government entities within the state that possess NFA items. Those entities will not have to comply with the NFA for silencers, SBRs, SBSs, or AOWs. Machine guns and destructive devices were not part of this lawsuit, and those regulations remain in place. For the 15 states, this means a reduction in some paperwork burden but not all of the NFA devices these agencies have.
For the associations, this order applies to… someone. But who exactly is unclear. “The Court thus declines to extend its injunction to any associational plaintiff’s ‘supporters.’” Silencer Shop Foundation and the other associations failed to explain who is a “supporter.” That was probably an intentional decision to leave the door open for anyone who makes a donation (including through a purchase) to be a “supporter” immune to the NFA, but it did not work out. The court wanted to see “indicia of membership” in the associations, and none was shown.
But the injunction does apply to “commercial members of the associational plaintiffs,” which is massive in terms of impact. This means that any business that is a member of one of the plaintiff organizations will be able to sell silencers, SBRs, and SBSs without NFA regulation for current and future customers. Dealers who are members of one of the organizations would not need to comply with the NFA in their sales. That would be an obvious competitive advantage over dealers who must still follow the NFA. The manufacturers in the lawsuit, SilencerCo, PSA, and B&T, will also be immune to NFA regulations for any SBRs, SBSs, or silencers they produce, assuming the order becomes final.
Layering these together can lead to a few absurd outcomes. Dealers who are not members of a covered organization would have to comply with the NFA for some silencer sales, but not for those of named manufacturers. Dealers who are members of a covered organization could sell silencers from any silencer manufacturer, whether named in the order or not. The ATF agents in the field will have a wonderful time trying to piece together what NFA items require registration and which do not.
What would happen if a customer buys a silencer from a covered dealer without NFA paperwork, then subsequently sells it to an uncovered dealer? Would that dealer also be immune to the NFA in the resale of that item? Or would it need a Form 1 to register the item, then a Form 4 to transfer it? Or just a Form 4 to transfer it? I have no idea, and would not want to be the test case.
What happens if one of the 15 covered states purchases NFA items in bulk for police use, then sells them as surplus to the public? The order is not specific that customers of a state law enforcement entity are covered. It would stand to reason that they are exempt from the NFA given the parallels with the dealers and manufacturers. But that is far from a guarantee.
There are a few ways to clean up the ambiguities. The most obvious is follow-on lawsuits by other organizations or manufacturers to get their own specific injunctions that would hopefully be clearer. Congress could act to fix the NFA, and there may even be a world where the ATF joins with gun rights groups to petition Congress for a legislative fix, because investigating NFA violations in this new paradigm would be really complicated. The ATF may also appeal to raise legal issues with the injunction.
One other fun possibility is a class action lawsuit. CASA and some follow-on cases have left class actions as one possible method to get a nationwide injunction against the government. Those cases pose logistical challenges of their own, but could be one way to get the same injunction for all people who own (or plan to own?) these NFA items.
In sum, this case is a huge win, and the parties that litigated it deserve a lot of praise. Due to a difficult SCOTUS decision, how this win will apply is a huge mess. We have to wait and see if there is an appeal. And even if there is not, this decision creates a new maze to navigate for anyone wondering if the NFA applies to their items or not. But despite those difficulties, the mere fact that there will be any number of legal, unregistered SBRs, SBSs, silencers, and AOWs is an impressive development.
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