There’s still no signal from the Justice Department about whether it will appeal a district court ruling that held most of the NFA’s registration requirements are an unconstitutional exercise of Congress’s taxing power, but in the days since last week’s ruling there’s been a lot of debate about whether it would ultimately benefit Second Amendment advocates if the DOJ does appeal the decision to the Fifth Circuit Court of Appeals.
As I wrote last week when the decision came down:
The plaintiffs in these cases would like the Trump administration to take the loss, but so too would many members of Congress. Remember, House and Senate Republicans tried to ditch the registration requirement along with the $200 transfer taxes on most NFA items in the One Big Beautiful Bill Act, but the registration repeal was deemed not germane to the budget bill by the Senate parliamentarian. If the DOJ accepts today’s verdict, that would largely accomplish the goal of most Republicans in Congress. Those same Republicans are also working to include language scrapping the registration requirements in potential reconciliation bill, but that bill is still very much a work in progress and might not even come to fruition.
The only real positive that could come from a DOJ appeal would be a universal injunction from the Supreme Court once Jensen and Silencer Shop get to SCOTUS. That could be several years away, though, and there’s no guarantee that the Court would even grant cert to the case once it’s been fully litigated by the lower courts. I’d much rather see the Justice Department drop its defense of the NFA registration requirement than appeal Hendrix’s decision to the Fifth Circuit and keep this litigation going for another few years.
Gun Owners of America, which is one of the organizational plaintiffs in the combined lawsuits challenging the NFA registration requirements on items that no longer have a making or transfer tax thanks to the One Big Beautiful Bill Act, is among those who are advocating for the DOJ to take the loss.
Everyone knows the NFA infringes on 2A rights and that imposing registration for a $0 tax is unconstitutional.
DOJ needs to be careful. Stalling GOA’s victory with an appeal could depress gun owner turnout in November, while embracing GOA’s victory would energize the base! https://t.co/w1ZlUgSqo4
— Gun Owners of America (@GunOwners) August 8, 2026
The Federalist’s Sean Davis, meanwhile, is quoting unnamed sources at DOJ who are supposedly shocked by Civil Division head Brett Schumate, who they say “seems to be controlled by anti-2A and anti-gun career bureaucrats within DOJ.”
Multiple admin sources tell me the DOJ official pushing to appeal the case to the 5th Circuit is attorney Brett Shumate, who oversees the civil division at DOJ.
Sources expressed shock at the extent to which Shumate seems to be controlled by anti-2A and anti-gun career… https://t.co/9cxYDPVf2q
— Sean Davis (@seanmdav) August 10, 2026
“This would be like the Biden admin appealing a decision that gives Planned Parenthood infinite funding,” one source told Davis. “It makes zero political sense.”
I don’t know who Davis is talking to, but if they can’t see how it might make political sense to keep the case alive then I don’t think they’ve thought through the implications of standing pat or appealing. When the decision first came out I was in favor of the DOJ ending its defense of the registration mandate, but Second Amendment attorney Kostas Moros has laid out a pretty good rationale for the DOJ to appeal.
Two things:
1. Plenty of other admins have appealed rulings that they rather would have kept in place, because the job of the DOJ is generally to defend the law. That’s the standard practice, and standing down the rare exception. Maybe they will choose to stand down here (I have… https://t.co/jsTKMO3dcI
— Kostas Moros (@MorosKostas) August 10, 2026
Zero chance we lose a Fifth Circuit appeal, and I’d even argue the risk is low for SCOTUS too, because this issue is that straightforward. Thus, there’s very good reason to WANT an appeal from DOJ, so that we have at least a circuit court ruling on this locked in should a future admin try to enforce registration again. IMO the best outcome right now would be DOJ appealing, but not asking for a stay in the meantime.
I think Moros is right about the Fifth Circuit, but I’m less confident about the Supreme Court. Between Thomas, Alito, and Gorsuch I think there are three firm votes in favor of upholding the district court’s conclusion that without a tax the NFA’s registration requirement is null and void, but I think it’s an open question as to where Roberts, Barrett, and Kavanaugh might come down on the issue.
That would only be a concern if SCOTUS granted cert to the case, and if DOJ kept up its appeal after losing at the Fifth Circuit. The Supreme Court denies the vast majority of cert petitions, and that would be the most likely outcome of any DOJ petition to the Court that seeks to keep the NFA registry on suppressors, short-barreled firearms, and “any other weapon” in place.
Assuming the Fifth Circuit upholds the district court’s judgement, that would leave the current injunction in place. The terms of the injunction established by the district court judge covers all current and future members of the organizational plaintiffs, as well as customers of the businesses who sued over the NFA registry. That’s not quite a true universal injunction, but it’s pretty broad.
The biggest potential pitfall if the DOJ does decide to appeal is that by the time Jensen/Silencer Shop reaches the Supreme Court, we could have a hostile administration in the White House and the makeup of the Court could be very different from what it is today. It’s not hard to imagine an anti-Second Amendment Supreme Court upholding the authority of Congress to impose a registry of NFA owners, even if the registry is tied to a tax that no longer exists.
The district court judge stayed his mandate for seven days to allow the DOJ time to appeal if it chose to do so. That means we should learn if that appeal will happen on Wednesday or Thursday this week. Given the debate on what course the DOJ should take, there’ll be some Second Amendment advocates disappointed and frustrated by whatever the agency decides to do.
Editor’s Note: The radical Left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
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