On August 5, Judge James Wesley Hendrix entered final judgment in the consolidated cases of Silencer Shop Foundation v. ATF, No. 6:25-CV-056-H, and Jensen v. ATF, No. 6:26-CV-227, holding that once Congress zeroed out the transfer and making tax, the National Firearms Act’s registration machinery lost its footing in the taxing power. He stayed the judgment for seven days so the government could seek relief above him. The government did nothing. At 12:01 a.m. Central on August 13, a licensed dealer in Leander, Texas transferred two suppressors without a Form 4 — the first such transfers in this country since 1934.
Seven Days, and Nothing Filed
The stay language was spare: “The Court stays the effect of this Final Judgment for seven days from the date of entry to allow the defendants to seek relief, if any, at the appellate level.”
That is an invitation with a deadline attached. The Justice Department answered it with silence — no notice of appeal, no motion to stay pending appeal, nothing on the Fifth Circuit’s docket. Representative Andrew Clyde said on August 12 that the administration had confirmed to him it would not appeal, though no filing, and no statement from the Department itself, has made that official.
An Appeal and a Stay Are Not the Same Motion
These are related instruments, and the difference decides this case. Under Federal Rule of Appellate Procedure 4(a)(1)(B), the government has sixty days from entry of judgment to notice an appeal, a clock that runs into early October. Nothing that happened at midnight forecloses that.
But a notice of appeal does not by itself suspend a judgment. Stopping an injunction from operating takes a separate motion for a stay pending appeal, and a stay is equitable relief the movant has to earn — beginning with a showing that it faces irreparable harm absent immediate intervention. The Department was handed a seven-day runway by the district court for exactly that purpose and used none of it. A motion filed in September asking the Fifth Circuit to treat this same judgment as an emergency will have to account for that gap. Sitting out the window does not extinguish the right to move. It does considerable damage to the credibility of the urgency.
Why Silence Is the Right Strategy
I do not want an appeal here, and I do not want a stay. Some in our community do, on the theory that a Fifth Circuit affirmance would convert a district court victory into circuit precedent. That is a real prize. It is not worth the wager.
This judgment is a certain win under Article I. An appeal puts it before a randomly drawn three-judge panel, and the Fifth Circuit is not the sure thing its reputation suggests. In United States v. Peterson, No. 24-30043, that court rejected a Second Amendment challenge to the NFA’s registration requirement for suppressors, reasoning in a substitute opinion issued December 9, 2025 that a registration and licensing regime is presumptively constitutional after Bruen. The Supreme Court denied review this past April. Suppressors are arms. They are instruments of armed self-defense and they are in common use. The Fifth Circuit is usually good on these questions, and usually is not a guarantee. There is nothing to gain by staking a judgment already in hand.
Notice of Intent, and a Midnight in Leander
Gun Owners of America, Silencer Shop, Brandon Herrera, and Texas State Representative Wes Virdell did not wait for the Department to move. On August 12 they wrote to Attorney General Todd Blanche and ATF Director Robert Cekada, giving formal notice:
We wish to respectfully provide you notice that at midnight on August 13th, 2026, the undersigned parties intend to engage in the commercial transfer of firearm silencers without complying with the currently enjoined requirements of the National Firearms Act.
The letter named the recipients, confirmed both were eligible under state and federal law, and observed that as members of Gun Owners of America and customers of Silencer Shop they fell within the injunction’s terms twice over. No Form 4 was submitted. Neither suppressor was entered in the National Firearms Registration and Transfer Record.
Serving that notice was the disciplined move. It handed the Department one more chance to object, and the decision not to take it will sit in the record of any later fight.
Take the Win
The registration provisions remain on the books, and this injunction reaches the parties before Judge Hendrix and those they represent — not the country. Two more taxing-power cases are pending: Roberts v. ATF in the Eastern District of Kentucky, and Brown v. ATF in the Eastern District of Missouri, where a summary judgment hearing was held on August 10. Either could deliver a second ruling on this theory from outside the Fifth Circuit.
For now the correct posture is the one the Department has backed into by doing nothing. Take the win, let the judgment stand, and carry it into the next fight.
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.