The U.S. Department of Justice just filed a supplemental brief in Brown v. Bureau of Alcohol, Tobacco, Firearms and Explosives, No. 4:25-cv-01162-SRC, pending before Chief Judge Stephen R. Clark in the Eastern District of Missouri, and it is hard to reconcile that with the administration’s own positions on the Second Amendment. The case challenges the National Firearms Act’s registration regime for suppressors and short-barreled rifles. On June 25, 2026, the U.S. Supreme Court decided Wolford v. Lopez, and Judge Clark ordered the parties to address what that decision means for the case before him. DOJ’s answer, filed July 27, 2026, is that Wolford changes nothing — a position hard to square with what DOJ’s own leadership has argued in other federal courts this year.
A Case About Rifles, Answered With a Shotgun Precedent
Brown v. ATF was filed in August 2025 by the Second Amendment Foundation, Firearms Policy Coalition, National Rifle Association, American Suppressor Association, and individual plaintiffs including Chris Brown, after the One Big Beautiful Bill zeroed out the NFA’s $200 transfer tax on suppressors and short-barreled rifles effective January 1, 2026. Plaintiffs argue that with the tax gone, the registration requirement itself cannot survive.
DOJ’s brief leans on United States v. Miller, 307 U.S. 174 (1939), arguing that Miller and District of Columbia v. Heller, 554 U.S. 570 (2008), together foreclose any Second Amendment challenge to the NFA’s treatment of short-barreled rifles. But Miller addressed a short-barreled shotgun in an unusual case where the lawyers for Mr. Miller did not even appear before the Supreme Court to argue his case. It said nothing about short-barreled rifles or suppressors, the physical items at issue in Brown. Heller did not treat Miller as a categorical bar covering every weapon Congress might later regulate; it independently asked whether handguns were in common use for lawful purposes, and concluded they were. The same legal inquiry — not a shortcut through a ninety-year-old shotgun case — has to be run for short-barreled rifles and suppressors today. A 1930s precedent about one weapon does not resolve the constitutional status of a different one.
Smuggling History Into the Plain Text
DOJ’s brief also tells Judge Clark that Wolford “does not meaningfully affect” whether the “in common use” inquiry belongs at Bruen’s first step (plain text) or its second step (historical tradition) — and that reasonable judges still disagree. I do not think that is a fair reading. Justice Samuel Alito’s majority opinion restates the two-step framework in unambiguous terms: the plain-text inquiry asks only whether a law applies to “the people,” concerns “arms,” and restricts “keeping” or “bearing” them. Clearing that purely definitional and linguistic threshold makes a law presumptively unconstitutional, shifting the burden to the government to justify it under the nation’s historical tradition of firearms regulation — the inquiry that produces the “dangerous and unusual” standard and, with it, the in common-use test.
Justice Amy Coney Barrett’s concurrence makes the same point even more directly. In footnote 1, addressing the principal dissent’s charge that this framework lets judges “insert any meaning they desire” into the Amendment’s text, she wrote:
“No one disputes that the Second Amendment’s text has a fixed meaning that must be satisfied before a law is deemed presumptively unconstitutional. … The disagreement is instead whether courts can smuggle additional limits, drawn from our regulatory tradition, into the plain-text stage of the inquiry. The answer is and always has been no.”
Common use derives from history, and the government bears the burden of proving it at step two. DOJ’s own amicus brief in the Third Circuit’s en banc ruling in Association of New Jersey Rifle & Pistol Clubs v. Attorney General New Jersey, consolidated with Cheeseman v. Davenport, took the correct position on this same question. So did DOJ’s brief in Barnett v. Raoul in the Seventh Circuit, even though that panel ultimately upheld Illinois’s assault-weapons ban on the merits. A DOJ brief filed weeks later in Missouri, arguing the opposite, is not a minor inconsistency. It contradicts the government’s own recent, on-the-record position.
Firearms Registration Is Not the Same as Licensing
The DOJ’S brief’s final move is to defend the NFA’s registration requirement by calling it a “presumptively constitutional shall-issue licensing scheme.” Registration and licensing are not the same thing, and the government does not need to guess at that distinction. In his 2011 dissent in Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011), then-Judge Brett Kavanaugh explained why:
“DC’s law requiring registration of all lawfully possessed guns in DC is not part of the tradition of gun regulation in the United States; it is the most stringent such law in the Nation; and it is significantly more onerous than traditional licensing requirements or record-keeping requirements imposed only on gun sellers. … [M]ost of the nation has never required — and even now does not require — registration of all lawfully possessed firearms.”
A licensing regime confirms that an applicant is not a prohibited person. A registration regime creates a permanent government inventory of who owns which specific firearm — the precondition for confiscation, not merely for verification. Justice Kavanaugh sits on the Supreme Court today, nominated to that seat by President Trump. I would like to know why DOJ’s brief in Brown takes a position Justice Kavanaugh has already rejected in a powerful way on the merits fifteen years ago.
Who Is Supposed to Be Reading These Briefs
None of my criticisms of the lower court filing by line government prosecutors reflects on the Department’s senior Second Amendment leadership. Assistant Attorney General Harmeet Dhillon’s Civil Rights Division and Acting Second Amendment Section Chief Barry Arrington have staked out strong pro-Second Amendment positions, and the administration prevailed in Wolford itself. Acting Attorney General Todd Blanche runs a Department with thousands of line attorneys across ninety-plus U.S. Attorney’s offices, and no single office can review every filing in real time. But a brief that contradicts the government’s own winning arguments in Wolford, Cheeseman, and Barnett should never reach a federal docket unreviewed. A single bad brief does not erase a good record. It only has to convince one district judge that the government itself is unsure what the law requires. That is a self-inflicted wound, and it is avoidable.
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.