DOJ’s NFA Surrender Leaves One Huge Question Unanswered

Solicitor General D. John Sauer has informed Congress that the DOJ will not appeal the decision by a federal judge in Texas that ruled the NFA’s registration requirements for suppressors, short-barreled firearms, and “any other weapons” a violation of the Constitution now that the NFA’s making and transfer taxes on these items have been zeroed out. 

The letter sent to Senate Judiciary Chair Charles Grassley contained a brief summary of the litigation in Jensen and Silencer Shop, noting that the district court had entered an injunction prohibiting enforcement of the NFA provisions against “the plaintiffs, and where applicable, the plaintiffs’ agencies, political subdivisions, members, and customers.”

What Sauer’s letter is missing, though, is any mention of the DOJ’s plans to continue enforcing those provisions against those retailers, manufacturers, and citizens who are not members, residents, or customers of the organizational plaintiffs. 

The DOJ has yet to release any guidance about how the court’s decision will impact the NFA’s registration requirements for those who fall outside the protection of the injunction, even though Second Amendment groups have been asking for answers since the decision was handed down.

🚨BREAKING🚨⁰⁰Solicitor General John Sauer just notified Congress “that @TheJusticeDept [will not] file an appeal” in GOA’s victory against the NFA, Silencer Shop v. ATF.⁰⁰ATF cannot force GOA members to register suppressors or short barrels EVER AGAIN. This is PERMANENT! 🇺🇸 https://t.co/QlW4uxNXFy pic.twitter.com/46u7EbHSGl

— Gun Owners of America (@GunOwners) October 1, 2026

I don’t know that anything is truly permanent in D.C., but the DOJ’s decision not to appeal its loss to the Fifth Circuit does provide some safeguards to members of GOA, Citizens Committee for the Right to Keep and Bear Arms, FPC Action Foundation, and the Texas State Rifle Association for the foreseeable future. 

It would be best for Congress to buttress the court decision by removing the registry requirements through legislation, which would ensure that the gun control lobby or anti-gun judges can’t do an end run around the injunction in the future. There are ongoing efforts by Rep. Andrew Clyde and others in Congress to include that language in a future reconciliation bill, but at this point the prospects of a reconciliation bill are still unclear. 

The biggest problem is that the injunction doesn’t cover every manufacturer and distributor of those NFA items. So, even though I’m covered as a member of the organizational plaintiffs, in order for me to purchase a suppressor using a Form 4473 like I would for any non-NFA firearm, I still have to find an FFL who is also covered by the injunction. I can still go the Form 4 route, which has the advantage of having my purchase shipped directly to me, but that requires more paperwork and a slightly longer process of ATF approval. 

ATF has been promising guidance for weeks, but neither the agency nor DOJ has publicly committed to a release date. The closest we’ve had to any kind of official announcement was a statement from a DOJ official in mid-September that the ATF would be releasing guidance “soon,” and a comment by ATF Director Robert Cekada in late September that he believes the guidance will be issued “within weeks.”

The DOJ also filed a motion on Thursday asking for a 10-day extension of their deadline to respond to the nine states that are plaintiffs, who’ve also filed a motion to clarify the court’s injunction. Essentially, those states want to know if the injunction applies to all residents in these states, or if those residents must also be members or customers of the organizational plaintiffs. 

DOJ told Judge James Wesley Hendrix that the defendants need more time to “consider their position on the states’ motion,” in light of the fact that ATF is “currently working to finalize public guidance regarding the NFA.” 

ATF’s guidance will likely inform defendants’ position on and the Court’s resolution of the states’ motion for clarification, and also may obviate the need for the Court to resolve certain issues that the motion raises (e.g., whether ATF is required to provide certain guidance to federal firearms licensees).

Hendrix granted the DOJ’s motion earlier today (October 2), and DOJ now has until October 12 to file its official reply to the states’ motion. Based on that timeline, we may see the ATF’s guidance released relatively soon. Whether ATF will voluntarily extend the practical effect of the injunction beyond the plaintiffs, their members and their customers remains to be seen. But now that DOJ has decided to let Hendrix’s judgment stand, continuing to enforce provisions the government chose not to defend on appeal against everyone else would be a very odd position for the DOJ to take. 

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