The Trump Bondi DOJ has filed a brief in Jensen v. ATF, No. 2:25-cv-00223 (N.D. Tex. 2025), defending the National Firearms Act’s registration and fingerprinting requirements even after Congress zeroed out the $200 transfer tax on suppressors, short-barreled rifles, and short-barreled shotguns through the One Big Beautiful Bill Act (H.R. 1, 119th Cong., signed July 4, 2025). The brief contains constitutional errors serious enough that I cannot let them pass without comment. I was a media surrogate and presidential transition team member for Donald Trump, and I am fully behind this administration — but support does not mean silence when unforced errors put Second Amendment rights at risk.
The Tax Hook Is Gone — and the DOJ Knows It
The NFA’s registration and fingerprinting scheme has always rested on Congress’s taxing power under U.S. Const. art. I, § 8, cl. 1. In Sonzinsky v. United States, 300 U.S. 506 (1937), a unanimous Supreme Court — Justice Harlan Fiske Stone writing — upheld the NFA dealer-registration tax as a valid exercise of that power. National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), reaffirmed that Congress can regulate conduct through genuine tax obligations.
The One Big Beautiful Bill killed that tax obligation — effective January 1, 2026, the transfer and making taxes on suppressors, SBRs, SBSs, and AOWs are $0. When the tax disappears, the constitutional hook disappears with it. You cannot justify mandatory registration and fingerprinting as a mechanism to ensure payment of a tax that no longer exists.
The Special Occupational Tax Theory Is Absurd
To work around the vanished $200 tax, the DOJ pivots to Special Occupational Taxpayers — dealers and manufacturers who pay annual SOT fees under 26 U.S.C. § 5801. The theory: because industry participants pay those fees, the government needs consumers to register and get fingerprinted to ensure the SOT scheme is administered correctly.
Think through what that logic requires. If it were correct, the federal government could compel registration and fingerprinting for every product sold by any licensed business in America — because the seller pays income taxes. That is not a workable reading of the Taxing Clause, and no court should accept it.
The Commerce Clause Fallback Fails on Its Face
The brief’s fallback is the Commerce Clause, U.S. Const. art. I, § 8, cl. 3. The problem is basic statutory text. Read the NFA provisions creating the registration, fingerprinting, and background-check obligations for consumers of NFA items. The words “commerce” and “interstate commerce” do not appear. Not once.
That absence is legally fatal. When the government prosecutes an NFA violation, it need not prove the defendant’s conduct touched interstate commerce — because that element is not written into the statute. An unstated hook is no hook at all. Congress anchored the NFA to the taxing power, not the Commerce Clause. Maybe the statute could be rewritten someday to add interstate-commerce language. But the question today is whether the law as written is constitutional — and it plainly is not.
The Second Amendment Analysis Is Where I Have to Speak Up
Here is where my frustration boils over, because the Second Amendment errors in this brief matter far beyond this one case.
On page 21, the DOJ writes that whether “a weapon is protected under the Second Amendment” is part of “step one” of the Bruen methodology — citing District of Columbia v. Heller, 554 U.S. 570 (2008), and New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022). That framing is wrong.
Under the proper framework, Bruen step one asks only whether the regulated conduct falls within the plain text of the Second Amendment. Justice Antonin Scalia’s majority in Heller defined “arms” as anything usable offensively or defensively — which covers all bearable firearms and the accessories that facilitate their use. Justice Clarence Thomas’s majority in Bruen specifically noted that suppressors facilitate armed self-defense. These items are plainly covered by the text. Once plain-text coverage is established, the burden shifts to the government to show a historical tradition of analogous regulation. The “in common use” and “dangerous and unusual” analysis belongs at that historical stage — it is the government’s burden to show the item is not in common use. The DOJ brief inverts this, treating “in common use” as a threshold screening question before the burden ever shifts.
I have written about this exact error in the Harvard Journal of Law & Public Policy, and it is the same misreading lower courts have used to gut Heller in assault-weapon ban cases. I would expect this from Merrick Garland’s DOJ — not this one.
Compounding the problem: the brief cites Bevis v. City of Naperville, 85 F.4th 1175 (7th Cir. 2023), and Hanson v. District of Columbia, 120 F.4th 223 (D.C. Cir. 2024) — decisions upholding assault-weapon and magazine bans — as support for upholding NFA requirements. Meanwhile, Harmeet Dhillon and the DOJ’s Second Amendment Section are in the Seventh Circuit in Barnett v. Raoul arguing that Bevis was wrongly decided, and in the Third Circuit in Cheeseman v. Platkin opposing a parallel New Jersey ban. The DOJ is attacking these decisions in one courtroom and citing them in another.
These Are Unforced Errors — And There Is Still Time to Fix Them
I do not blame the line attorneys who drafted this brief. They are defending their client — the federal government — as instructed. The problem is upstream. With over 10,000 lawyers in the DOJ, consistent Second Amendment messaging across every district court filing is a management challenge. But NFA cases involving suppressors and SBRs are high-profile enough that senior leadership must be reviewing these briefs before they go out.
The administration has three years left. The Second Amendment Section exists precisely to prevent this kind of institutional incoherence. My ask is simple: use it. Review the filings. Fix the inconsistencies. The correct arguments are already in Heller and Bruen — DOJ just needs to apply them.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.