Arguments by the Trump Administration’s Department of Justice for continuing the registration portion of the National Firearms Act (NFA) now that the tax has been eliminated have drawn the ire of a major gun-rights group.
Congress killed the $200 tax on suppressors, short-barreled rifles (SBRs), short-barreled shotguns (SBSs), and any other weapons (AOWs) when it passed President Donald Trump’s One Big Beautiful Bill last summer. Gun-rights groups immediately filed a handful of lawsuits challenging the remainder of the NFA, and the DOJ is unexpectedly fighting those lawsuits, despite the administration’s promise to battle anti-Second Amendment laws.
In one of the cases, Brown v. ATF, the Second Amendment Foundation (SAF) recently filed a supplemental reply brief countering the federal government’s arguments in support of the NFA.
“This reply brief gave us the perfect opportunity to rebut the government’s arguments in support of the NFA,” Bill Sack, SAF director of legal operations, said in a news release announcing the filing. “We were encouraged the court requested targeted supplemental briefing that addressed key elements of the proper Second Amendment analysis. In our principle brief, we laid out in detail why the answer to every question posed supported our position. And now with this reply brief, we have driven home the point and dismantled each of the government’s arguments to the contrary.”
In the brief, FPC argued that the government used incorrect reasoning in its argument about which arms are “in common use” and which are not. And in doing so, pointed out the government’s inability to address the second Bruen standard.
“Under a proper understanding of the “in common use” test, even if the Government is correct about what factors courts must analyze under the inquiry—a point that Plaintiffs do not concede—the Government would bear the burden under the historical phase of the Second Amendment inquiry to show that an arm is not in common use for a lawful purpose,” the brief stated. “The Government has not done so here. Instead, Plaintiffs have presented significant, unrebutted evidence that short-barreled rifles and suppressors are in common use today for lawful purposes.”
FPC also took on the government’s argument that suppressors are not protected by the Second Amendment because they are not “arms.”
“The relevant conduct for purposes of determining whether suppressors are protected by the plain text of the Second Amendment is the possession or acquisition of a firearm equipped with a suppressor,” the brief argued. “That is because a suppressor has no purpose other than for use as part of a firearm, so it cannot be divorced from the firearm to which it is affixed for purposes of this inquiry. Under this proper framing of the Second Amendment inquiry, the NFA’s regulation of suppressed firearms implicates presumptively protected conduct—the possession of a firearm.”
Alan M. Gottlieb, SAF founder and executive vice president, said that for nearly a century, the government has used the NFA to disenfranchise law-abiding Americans, and it’s high time this infringement be righted.
“Citizens across the country own more than 5 million silencers and countless short-barreled rifles,” Gottlieb said. “Registering your guns with the same government the Second Amendment is intended to protect you from runs contrary to the fundamental principles of the right to keep and bear arms. More than 90 years of constitutional injury is enough—it’s time to strike this one down.”
Ultimately, the SAF brief asked the court to grant the plaintiff’s motion for summary judgment and to deny the government’s motion. SAF is joined in Brown v. ATF by the American Suppressor Association, National Rifle Association, Firearms Policy Coalition, Prime Protection STL Tactical Boutique, and two private citizens.
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