On August 13, the law firm of Cooper & Kirk sent a letter to Jody D. Lowenstein, a trial attorney in the Justice Department’s Civil Division, posing five questions about how the government intends to comply with Judge James Wesley Hendrix’s August 5 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. The letter gives the government until August 21 to respond. I have read it closely, and I want to give the Department the correct answers before it answers on its own.
Judge Hendrix held that once Congress zeroed out the making and transfer taxes on short-barreled rifles, short-barreled shotguns, and suppressors, the National Firearms Act’s registration and fingerprinting scheme as applied to those items lost its foundation in the Article I taxing power. He stayed his own judgment seven days to let the government seek appellate relief. The government let that window close on August 12 without filing anything. The injunction stands, and Cooper & Kirk wants to know exactly how far it reaches.
A Firm the Government Cannot Ignore
Cooper & Kirk is not a marginal player writing to be heard. Peter A. Patterson and his colleagues secured certiorari from the Supreme Court in both Viramontes v. Cook County, No. 25-238, and Grant v. Higgins, No. 25-566, the consolidated AR-15 cases that will decide whether the Second and Fourteenth Amendments protect America’s most common semiautomatic rifles. The Court granted cert on June 30, 2026, and I expect — my own forecast, not a date the Court has published — argument sometime in the fall term. When a firm with that record puts five questions to the Justice Department in writing, the Department reads them.
The letter recites the posture accurately: final judgment on the plaintiffs’ enumerated-powers claim, enforcement of the relevant NFA provisions permanently enjoined as to the named plaintiffs and their members and customers, no geographic limit, and coverage extending to future members and customers as well as current ones. The seven-day stay has expired. Cooper & Kirk then asks how the government plans to comply.
Question Three Decides Everything
Of the five questions, four are mechanical — whether guidance will issue, in what form, and how enforcement will be limited to the injunction’s actual scope. Question three is the one that governs the rest:
“Does the government intend to continue enforcing the enjoined provisions of the NFA against entities or individuals who are not covered by the injunction?”
My answer, if I sat at Main Justice, would be no. The Department should decline to enforce the enjoined NFA provisions against anyone in the United States, not merely the named plaintiffs and their members and customers. That answer does not touch the Gun Control Act or state law — it addresses only the NFA provisions Judge Hendrix actually enjoined.
Three reasons support it. First, this administration is the most consistently pro-Second Amendment administration in more than a century, and it tried to remove suppressors and short-barreled firearms from the NFA entirely in the 2025 reconciliation bill — blocked not by the administration but by the Senate Parliamentarian, appointed originally by then-Majority Leader Harry Reid, who ruled the provision non-budgetary under the Byrd Rule and could be overridden only by sixty votes the bill did not have. A judgment holding this taxing scheme unconstitutional is not a result the administration should resist; it is the result the administration already sought.
Second, uniform non-enforcement avoids a two-tiered system in which criminal liability turns on whether a defendant happens to belong to one of the plaintiff organizations — an arbitrary line for prosecutors to police.
The Mens Rea Problem DOJ Cannot Escape
The third reason is constitutional. In Staples v. United States, 511 U.S. 600 (1994), the Supreme Court held the government must prove beyond a reasonable doubt that a defendant knew his firearm possessed the features bringing it within the NFA before he can be convicted — the common-law presumption favoring mens rea governs absent a clear statement from Congress otherwise. In Bondi v. VanDerStok, Justice Kavanaugh’s concurrence made the same point about the Gun Control Act’s willfulness requirement: the government must show the defendant knew his conduct was unlawful, not merely that he knew the underlying facts. And in United States v. Burwell, 690 F.3d 500 (D.C. Cir. 2012) (en banc), then-Judge Kavanaugh dissented from the D.C. Circuit’s refusal to require that same knowledge before enhancing a sentence for a machine gun’s automatic-fire capability.
Anyone who reasonably believed the injunction protected him, and turns out to fall just outside its technical scope, has a serious mens rea defense to any prosecution. The Department would be inviting litigation it is unlikely to win. Declining to enforce uniformly avoids the fight.
The Safe Harbor Question
Question five asks how the government would treat items acquired while the injunction is in effect if it is later stayed, modified, or vacated. The answer is a safe harbor: anyone who lawfully acquires a suppressor, short-barreled rifle, or short-barreled shotgun while the injunction remains in force should keep it, even if the injunction is later undone. The precedent is “Freedom Week” — the brief window in which Judge Roger Benitez’s order against California’s magazine ban took effect before the Ninth Circuit intervened, during which an estimated million-plus magazines entered the state. Those magazines have never been collected, and their possessors remain shielded from enforcement today under a Ninth Circuit stay while a certiorari petition sits at the Supreme Court. That is the shape of the answer DOJ should give here.
I do not believe the Department will appeal Judge Hendrix’s ruling, notwithstanding speculation circulating online, and the lapsed stay window bears that out. The correct path is the clean one: uniform nationwide non-enforcement of the enjoined provisions, and a safe harbor for anything lawfully acquired in the meantime. We will find out by August 21 whether the Department agrees.
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.