What Happens if DOJ Stops Defending Silencer Regs?

Now that Attorney General Pam Bondi has signaled the Justice Department is re-evaluating its stance that silencers aren’t “firearms” protected by the Second Amendment, what happens if the DOJ reverses course and suddenly declines to defend their inclusion in the National Firearms Act? 

We wouldn’t suddenly see suppressors available for sale with a simple NICS check, unfortunately. That would require changing the NFA itself, which in turn would require congressional approval. The House may very well give its approval to the SHUSH Act, but it’s gonna be tough to get 60 senators on board with the change. So what impact would a DOJ reversal have in practical terms? 

The NFA has been a flashpoint for advocates, who say that silencers are not frequently used in crime and believe that the silencers and other weapons regulated under the law, including machine guns and short-barreled rifles and shotguns, are protected by the Second Amendment. A decision by the Justice Department not to defend the law may, however, make it harder for gun rights groups to challenge the law at the Supreme Court. 

“If Trump administration decides not to prosecute people under for illegal silencer possession while in office, that’s a good short-term win, that’s what a lot of gun rights activists will want,” said Stephen Gutowski, a gun safety instructor and founder of The Reload.

However, Gutowski added that if Democrats regain the White House in four years, “They can just reverse the policies and go back and start prosecuting people again, because the law was never found unconstitutional or invalid.”

If the Trump administration just decides not to enforce the NFA regulations surrounding suppressors, I don’t think that would actually be much of a win for gun owners, though it might provide some short term benefit for suppressor buyers and the companies that make them. What would stop the next Democratic administration from zealously prosecuting those companies or anyone who purchased/possesses a suppressor not registered or taxed under the NFA? 

The best option may be for the Trump administration to decline to defend the current statute and not raising any objections to anti-gun AGs intervening as defendants in ongoing litigation. Then the full weight of the DOJ could be directed to side with the plaintiffs in these lawsuits, while allowing the cases to continue to make their way to SCOTUS. 

Gun safety groups, for their part, say that silencers put people at risk by make a mass shooting harder to hear and contend that because silencers reduce the recoil when a gun is fired, it could make it easier for a gunman with a semiautomatic to shoot with fewer interruptions.

“Silencers in the wrong hands create serious public safety risks,” Everytown for Gun Safety writes on their website. “The loud and distinctive noise that a gun makes is one of its most important safety features: when people hear it, they realize they may need to run, hide, or protect others.”

The group also raises concerns that removing silencers from the NFA would allow them to be purchased without a background check.

Frankly, if suppressors aren’t “firearms” as the DOJ (and at least one federal court contends), then they arguably shouldn’t be included in the National Firearms Act as a restricted firearm. And yes, their removal from the NFA could allow their purchase without a background check, but if they’re merely an accessory then so what? What other firearm accessory requires a background check of any kind, much less a detailed check and an extra $200 tax?

Of course, whether there are five justices on the Supreme Court at the moment who are ready to remove suppressors from the NFA is very much an open question, especially after Wednesday’s 7-2 decision upholding the ATF’s rule treating unfinished frames and receivers as completed firearms. The bottom line is even if the Trump administration is on board with the idea, deregulating suppressors is going to be a challenge, whether it’s through the legislative or judicial branches.