Transcription
We have a significant development in the nationwide effort to remove suppressors and short-barreled rifles from the NFA. The Trump DOJ has now filed its reply brief in support of their summary judgment motion. And in this brief, they double down on their whole position that the NFA should remain in place despite the new $0 tax on these items. And this filing tells us exactly how the government plans to defend the NFA now that there is no longer a tax on these items. This new brief shows that the federal government is not retreating, but instead, they are doubling down on their protection efforts of the NFA. So, let's break down what just happened in this critical case.
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Now, as you know, Congress passed HR1, the one big beautiful bill. And inside that bill, there was the reduction of the making and transfer tax on suppressors, SBs, SBRs, and AOWs. And that tax was reduced from $200 all the way to $0. Now, historically, the Supreme Court upheld the NFA as a valid exercise of Congress's taxing powers. Now, that's critical for what is going on in these current cases. The entire constitutional justification for the NFA rested on taxation. So once the tax was eliminated, multiple TOA organizations and other companies filed lawsuits and they argued that now that there is no longer a tax on these items, there's no longer a taxing power and the entire NFA, the remaining restrictions need to be done away with. That's the heart of this case that we're going to be talking about, which is Jensen versus the ATF. The plaintiffs are asking for the court to declare that the NFA's registration and transfer requirements for the now untaxed firearms exceeds Congress's enumerated powers and therefore the remaining NFA restrictions need to be done away with.
Now, in this case, both sides move for summary judgment motions. The plaintiffs want the court to rule now without a trial that the NFA's restrictions on suppressors and SBRs and these other items are unconstitutional. The DOJ wants the court to uphold the NFA in full. Now, in its original brief, the DOJ made three main arguments. They argued that the NFA is still supported by the taxing power because of the SOT tax on manufacturers and dealers. And they argue that that still exists. And they say that even if the taxing power fails, the NFA is valid under the commerce clause. They also argue that there are some other procedural issues with this case where even if this was ruled unconstitutional, the ruling cannot apply nationwide. It could only apply to these specific plaintiffs. But in this case, the plaintiffs have now argued back. They hit back and they're saying that, you know, all of these new arguments put forward by the Trump DOJ and the ATF do not actually support keeping the remaining NFA restrictions in place.
In this case, the DOJ just filed that reply brief arguing why the court should rule in their favor on the summary judgment motions. And their approach in this brief is very aggressive. The first move the DOJ makes is very procedural. They argue that the plaintiffs lack Article III standing to challenge the NFA's regulation of AOWs. So why are they doing that? Well, that's because they argue no plaintiff originally claimed that they intended to make or possess an AOW when the lawsuit was filed. The government argues you cannot manufacture standing mid-litigation by filing a new declaration after the fact. And that's kind of their first attempt to narrow this case where they're trying to kind of carve out the AOW aspect. So even if the plaintiffs won, maybe the AOW restrictions would remain in place.
Next, the DOJ argues that this is not an as-applied challenge. They argue instead this is purely a facial challenge. And that matters because under US versus Raheem, a critical Second Amendment case, plaintiffs must show that there is no set of circumstances under which the NFA would be constitutional. And that is a very high bar. It's a high standard that you have to meet. The government points out that the plaintiffs are asking for the court to invalidate the NFA's regulation on suppressors, SBRs, SBs, and AOWs nationwide. They want a categorical block on the NFA, and this is not just an as-applied challenge. So, the DOJ is trying to force the plaintiffs into the most demanding standard possible, and they are doing that because they want to dismiss this case and get rid of this lawsuit right here and now.
Now, the third thing that the DOJ does in this new brief is kind of at the heart of what they want to argue in this entire case. The DOJ argues that the NFA is still constitutional under Congress's taxing powers even with the $200 making tax now reduced to $0. Now, why do they argue that? Well, that's because they say that the NFA still imposes the special occupational tax on manufacturers, importers, and dealers. They are arguing that the regulatory structure still serves a revenue purpose which keeps it valid. So in other words, even if the $200 tax is reduced to $0, they argue that the occupational tax keeps the structure alive. And that is what the DOJ's current position is, that the NFA could remain in place even though the $0 tax is currently here in effect.
Now, the fourth thing that they argue is that even if the taxing power arguments fail, the DOJ says the NFA is independently justified under the commerce clause. They argue that NFA firearms are commodities in an interstate market, that manufacturers and dealers are commercial actors, that the NFA regulates interstate commerce directly, and regulating purely intrastate activity, which is activity that happens just within a specific state, is necessary to prevent any unregulated submarkets. So they are saying that oh there would be this huge black market and a lot of crime if we were not allowed to regulate these items.
Now the last thing that they put forward has to do with the Second Amendment claims and the arguments that are brought up in this challenge. The DOJ leans heavily on some precedent. They side to US versus Miller, DC versus Heller, and the recent Fifth Circuit precedent in United States versus Hernandez. The government argues that Miller and Heller foreclosed the Second Amendment protection for short-barreled shotguns and by extension, they say that that should also apply to short-barreled rifles. They also cite to a wave of post-Bruen district court and appellate court decisions upholding the NFA's restrictions. So their theme really in this reply brief is very clear. They argue that the NFA regulates dangerous and unusual weapons and that remains consistent in their eyes with the historical tradition of regulating these items.
So, what does this tell us about the current Trump DOJ strategy when it comes to the NFA? Well, this reply brief really reveals something critical. The DOJ is not relying on just one constitutional hook or one single argument. They're kind of stacking multiple arguments: taxing power, commerce clause, necessary and proper clause, Miller and Heller precedent, facial challenge, some procedural issues, withstanding, and other things like that. So, this is a layered defense designed to survive even if one of those pillars or one of those arguments fails. And in my opinion, with how this case is currently developing and stacking up and how the arguments are currently playing out, I think regardless of how the district court rules, this case will likely head to the Fifth Circuit Court of Appeals.
So, what is the current big picture with this challenge? Well, this is now one of the most important constitutional tests of the NFA in decades. If plaintiffs succeed even partially, it destabilizes the entire NFA framework. But if the DOJ wins, it reinforces that Congress's power to regulate NFA weapons still remains even though there is no longer a tax on these items. And this is a big enough issue that this case will not end here. It will not end the district court. It will likely make its way to the Fifth Circuit Court of Appeals. So that's where things currently stand in the Jensen versus ATF case. The DOJ has once again doubled down in protecting the NFA. They're arguing once again in protecting the NFA. And now we're going to have to wait to see how this develops on these summary judgment motions and ultimately how does the district court review these issues and how does it rule.
So as we get more information as this develops more, I will let you guys know. If you like this video and you'd like to support the channel, one of the best ways to do that is simply to like, comment, and subscribe. All of those things help to feed the algorithm and just tells the algorithm that you appreciate this type of Second Amendment content and it should share to more people. But as always, thank you so much for all of your support and never forget this nation was built by armed scholars and this nation will be maintained by armed scholars.