On September 2, 2026, the Justice Department filed a First Supplemental and Amended Complaint in United States v. Government of the Virgin Islands, No. 3:25-cv-00050 (D.V.I., Div. of St. Thomas and St. John), and buried inside it is a Second Amendment argument far more consequential than most people realize. This is not the Article I taxing-power fight that has driven the recent wins against the National Firearms Act. It is a different, broader constitutional theory — one that would survive even if Congress restored the NFA’s $200 transfer tax tomorrow. The Department of Justice, under Attorney General Todd Blanche, Assistant Attorney General for Civil Rights Harmeet Dhillon, and Acting Chief of the Civil Rights Division’s Second Amendment Section Barry Arrington, has now argued in a federal pleading that constitutionally protected arms cannot be registered at all.
Two Different Constitutional Arguments
I have covered the Article I line extensively: the theory that once Congress zeroed out the NFA’s $200 transfer tax, it lost the taxing-power hook that let it regulate suppressors, short-barrel rifles, and short-barrel shotguns in the first place. That fight is playing out in Jensen v. ATF and Silencer Shop Foundation v. ATF, both in the Northern District of Texas. It is a Congress-power argument. If Congress simply reinstates the tax, that argument evaporates.
The Virgin Islands complaint does something different. It challenges the territory’s Act No. 9113, the “2026 Second Amendment Rights and Public Safety Act,” which bans AR-15-style rifles, restricts magazines and suppressors, and imposes a firearms registration scheme. In attacking that registration requirement, DOJ has advanced a Second Amendment argument, not a taxing-power argument. That distinction matters enormously, because a Second Amendment holding does not depend on what Congress does with a tax rate. It is a standalone, independent reason why registration of suppressors under the NFA is unconstitutional — one that wins even in a world where the $200 tax comes roaring back.
Suppressors Are Arms Under the Plain Text
The complaint states plainly that suppressors are constitutionally protected arms. As the Supreme Court held in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022), modern instruments that facilitate armed self-defense fall within the Second Amendment’s plain text. A suppressor is exactly that: a safety device that protects a lawful shooter’s hearing while hunting, competing, training, or defending a home. DOJ’s complaint makes the same point directly, arguing that the right to keep and bear arms under the Second Amendment “encompasses the right to possess firearm silencers, which perform critical functions that make firearms both safer and more effective for their core lawful purpose of self-defense.” Once an item clears that plain-text threshold, the burden shifts to the government under Bruen’s two-step framework to justify any restriction through this nation’s historical tradition of arms regulation — including showing the item is not in common use. With several million suppressors already registered nationwide, that burden is not one the government can carry.
You Cannot Restrict What the Constitution Protects
The complaint goes further, arguing that a constitutionally protected firearm cannot be restricted from sale, transfer, or acquisition. Addressing Act 9113’s ban on transferring firearms holding more than fifteen rounds, DOJ wrote that “common sense dictates that the right to bear arms [includes] a right to acquire arms, just as the right to free press necessarily includes the right to acquire a printing press, or the right to freely practice religion [includes] a right to acquire a sacred text.” That logic applies with equal force to suppressors, which the complaint has already classified as protected arms.
Registration Is Not Licensing
The most significant move is DOJ’s argument that registering a protected arm is categorically different from licensing its owner — and that registration itself is unconstitutional. The complaint invokes then-Judge Brett Kavanaugh’s dissent in Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011), where he wrote that “[r]egistration of all lawfully possessed guns — as distinct from licensing of gun owners or mandatory record-keeping by gun sellers — has not traditionally been required in the United States and even today remains highly unusual.” DOJ’s complaint concludes that “[u]nder Heller’s history- and tradition-based test, USVI’s registration requirement is therefore unconstitutional.”
That is the theory line prosecutors across the country have resisted, instead arguing that NFA registration is no different from the shall-issue licensing schemes Bruen left undisturbed. It is not the same thing, and now the Department’s own leadership has said so in a court filing that any defendant nationwide can cite against the NFA’s registration requirement — independent of how the tax fight ends.
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.