The Trump administration deserves credit for its pro-Second Amendment posture — from its amicus brief in Barnett v. Raoul to Harmeet Dhillon’s personal appearance before the Seventh Circuit. But unforced errors by DOJ line attorneys continue to undermine that agenda. The latest example is a brief filed in the Eastern District of Missouri in Brown v. ATF, the major challenge to the National Firearms Act’s regulation of suppressors and short-barreled rifles. The brief misapplies U.S. Supreme Court precedent in ways difficult to reconcile with either Heller or Bruen — and somebody at the Department of Justice needs to get control of these filings.
The Case: Brown v. ATF
Brown v. ATF was filed in August 2025 by the Second Amendment Foundation, Firearms Policy Coalition, National Rifle Association (NRA), and American Suppressor Association, along with individual plaintiffs, including Chris Brown. The lawsuit argues that suppressors and short-barreled rifles should be removed entirely from the NFA’s regulatory framework, particularly after the One Big Beautiful Bill Act zeroed out the $200 NFA excise tax on these items effective January 1, 2026. With Congress’s taxing power hook eliminated, plaintiffs contend that the remaining NFA registration regime lacks constitutional authorization and that these items are constitutionally protected arms under the Second Amendment.
The argument is straightforward: treat suppressors and short-barreled rifles the same as any ordinary handgun or semiautomatic rifle — no NFA registration, no special regulatory burden.
The DOJ’s First Error: Elevating “In Common Use” to the Plain Text
The DOJ’s brief argues that the “common use” inquiry belongs at step one of the Bruen analysis — the plain text level — rather than step two. This matters enormously because of where the burden of proof falls.
Under Heller and Bruen, the plain text analysis is definitional. “Arms” includes anything that can be used offensively or defensively. Bruen clarified the definition further, holding that “any instrument that facilitates armed self-defense” qualifies as an “arm” for Second Amendment purposes. A suppressor facilitates armed self-defense by protecting the user’s hearing during training and defensive encounters. A short-barreled rifle is, by definition, a rifle. These items satisfy the plain text with room to spare.
The “common use” test derives from our country’s historical tradition of firearms regulation — the banning of the carrying of “dangerous and unusual” weapons — which is the government’s burden to establish at step two. The DOJ’s move to place this historical burden on plaintiffs at step one inverts the entire Bruen framework.
Notably, the DOJ brief relies on authority from the Fourth, Seventh, and DC Circuits — among the worst jurisdictions when it comes to accurately applying Second Amendment precedents. When the Trump DOJ cites circuits that routinely get it wrong, something has gone off the rails.
The DOJ’s Second Error: Misapplying the Facial Challenge Standard
The DOJ brief argues that because the NFA’s provisions could theoretically be applied to criminal misuse, the statute cannot be struck down on its face. This collapses the moment you apply it to Heller. The DC handgun ban was struck down facially — in its entirety. Under the DOJ’s logic, that result should have been impossible, because DC’s ban could also have been “applied” to criminals misusing handguns. But Justice Antonin Scalia did not ask whether the D.C. handgun ban statute had some hypothetical valid application against a hypothetical criminal; he asked whether the statute’s actual elements required proof of criminal conduct. DC’s ban did not. Neither does the NFA’s regulation of suppressors and short-barreled rifles. That is precisely why the NFA statute is vulnerable to facial challenges as to suppressors and short-barreled rifles.
The Government Registration Problem
The DOJ continues to defend the NFA’s registration regime by analogizing it to a shall-issue licensing system. But registration and licensing are constitutionally distinct categories. As then-Judge Brett Kavanaugh explained at length in his dissent in Heller II at the DC Court of Appeals in 2011, a gun or gun-owner registration requirement is a precursor to government confiscation — a government-maintained record of who owns what — while a licensing regime merely verifies that an individual is not a prohibited person. The two serve fundamentally different governmental purposes and carry fundamentally different constitutional implications. And, as then-Judge Kavanaugh explained in Heller II, there is no historical tradition of firearms regulation in the United States that could justify a modern-day registration scheme of protected arms.
The Big Picture
The Trump administration, through Harmeet Dhillon and the Civil Rights Division, has taken strong positions in cases like Barnett v. Raoul and Cheeseman v. Platkin. But the left hand does not know what the right hand is doing. While DOJ argues against arms bans in the Seventh Circuit, DOJ attorneys in Missouri file briefs contradicting the administration’s own doctrinal positions.
Someone at the Department of Justice needs to make clear that briefs inconsistent with Supreme Court precedent will not be tolerated. This is not rocket science. It is paint by numbers — and some DOJ lawyers keep coloring outside the lines.
This article is based on analysis by Mark W. Smith on The Four Boxes Diner. Watch the original video. This does not constitute legal advice.