If NFA Registration Is Unconstitutional, Why Is DOJ Fighting Nationwide Relief?

There’s been a lot of coverage of the Jensen/Silencer Shop cases in the Second Amendment community, and for good reason. A federal judge held that the NFA’s registration requirements are now unconstitutional, at least for most NFA items, since Congress zeroed out the making and transfers taxes on suppressors, short-barreled firearms, and “Any Other Weapons.” The DOJ decided not to appeal that decision, and we’re waiting on guidance from the ATF about how the agency will handle NFA transfers going forward. 

The injunction imposed by U.S. District Judge James Wesley Hendrix applies to the plaintiffs, their members, and their customers, as well as the plaintiff states and their agencies and political subdivisions. Whether individual residents of those states are protected simply because of where they live is an open question, though. 

Jensen/Silencer Shop isn’t the only litigation involving the NFA’s registration requirements, though. There’s also Brown et al v. ATF. That case, filed in federal court in Missouri, is still ongoing, as is Missouri v. ATF. 

Here’s where things get a little convoluted. On September 24, an amended complaint was filed in Brown that included Missouri, Florida, Georgia, Iowa, Kansas, Nebraska, Oklahoma, South Dakota, and Utah. These states were not original plaintiffs in Brown, but they now want to become part of the lawsuit. The federal judge in Brown asked the DOJ to reply to that request, which also included a request for summary judgment in favor of the plaintiffs (and the states hoping to become plaintiffs in Brown). 

On Wednesday, the DOJ filed its response, arguing that most of those states don’t have standing to join Brown, since they were already a part of the Jensen litigation and have received relief through Judge Hendrix’s injunction. The Justice Department strongly opposed the request by the states for U.S. District Judge Stephen R. Clark to grant an injunction against the NFA’s registration requirements “throughout Plaintiff States and the United States.”

The states’ request for a universal injunction (“throughout … the United States”) is foreclosed by Trump v. CASA, 606 U.S. 831 (2025), where the Supreme Court held that federal courts lack authority to issue such relief. Presumably aware that their request for a universal injunction is unjustifiable, the states don’t try to justify it. This Court should therefore deny the request.

The DOJ went even further, arguing that statewide injunctions should be off the table as well. 

The states are no more justified in requesting a statewide injunction (“throughout Plaintiff States”). The states base this request on alleged harms they assert on behalf of their “residents in general.” This is nothing more than a “thinly veiled attempt” to invoke a parens patriae theory of standing. But the states cannot proceed as parens patriae against the federal government to protect their residents from the operation of a federal statute. That is because the federal government is “the ultimate parens patriae of every American citizen.” It is thus “no part of [a state’s] duty or power to enforce [its residents’] rights in respect of their relations with the federal government,” because “[i]n that field it is the United States, and not the state, which represents them as parens patriae.”

Parens patriae is a legal doctrine that allows a state to sue to protect certain interests of its residents. But according to DOJ, that authority doesn’t extend to suing the federal government simply to protect residents from the operation of a federal statute. In other words, Missouri and the other states may be able to seek relief for injuries to their own governmental operations, but they can’t automatically obtain an injunction protecting every resident within their borders, even when the federal government has declined to defend a statute in a federal court. 

I’m sure the DOJ is trying to keep as much power vested in the executive branch as possible, and I wouldn’t be surprised at all if the ATF’s guidance is applied universally, since that’s an exercise of executive branch power. The problem, though, is that ATF guidance can be reversed, and the next time we have an anti-gun executive branch the ATF could decide that only those individuals who are explicitly covered by Judge Hendrix’s injunction can transfer or receive suppressors, short-barreled firearms, and AOWs without registering them with the federal government.

Again, I understand the DOJ’s rationale. These cases don’t exist in a vacuum, and the judges’ decisions can have ramifications far beyond these specific lawsuits. But I also understand and share the frustrations of Second Amendment advocates who are watching the DOJ decline to appeal a ruling that the NFA’s registration requirements are unconstitutional while simultaneously arguing that another federal court shouldn’t extend similar relief to gun owners across the country. That leaves millions of Americans dependent on the discretion of the very federal agency charged with enforcing a law that another judge has already found unconstitutional.

Editor’s Note: Every single day, here at Bearing Arms, we stand up and FIGHT, FIGHT, FIGHT for the right to keep and bear arms. 

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