The National Firearms Act’s grip on three categories of firearms — suppressors, short-barreled rifles, and short-barreled shotguns — is not merely weakening. It is being dismantled in a way that I believe cannot be reversed, regardless of who controls Congress or the White House in the years ahead. The mechanism is not a single court ruling. It is a self-reinforcing cycle: a tax cut drove a surge in lawful acquisition, that surge is deepening the constitutional concept of “common use,” and common use, once established, is a status no legislature can vote away.
The Tax Cut That Started the Surge
The One Big Beautiful Bill Act, signed into law in 2025, reduced the NFA’s $200 transfer and making tax on suppressors, short-barreled rifles, and short-barreled shotguns to zero, effective January 1, 2026. The tax on “any other weapons” dropped to $5. Machine guns and destructive devices were left untouched at $200 — Congress drew a deliberate line, and I want to be precise that this analysis does not extend to that separate category.
Basic economics explains what happened next. When the price of a good falls by $200 per unit, demand rises. Americans who had been priced out, or who simply declined to pay a $200 government toll to exercise a constitutional right, began acquiring suppressors and short-barreled firearms in far greater numbers. That is not incidental to the legal story. It is the foundation of it.
A Taxing Clause Win, Not Yet a Second Amendment One
On August 5, 2026, Judge James Wesley Hendrix of the U.S. District Court for the Northern District of Texas ruled in the consolidated cases of Jensen v. ATF, No. 6:26-CV-227, and Silencer Shop Foundation v. ATF. His holding was precise: once Congress zeroed out the transfer tax, the constitutional hook Congress had relied on to justify the NFA’s registration, fingerprinting, and approval apparatus for these three items disappeared. Without a tax to administer, there was no remaining basis in the Taxing Clause — or any other enumerated power — for the registration scheme as applied to them.
I want to be precise about what that ruling was and was not. It rests entirely on Article I taxing power. Silencer Shop Foundation’s own Second Amendment claims were dismissed as abandoned. No court has yet held that suppressors, short-barreled rifles, or short-barreled shotguns are themselves protected arms under the Second Amendment. That broader constitutional status is still being built — and that is precisely the point of this piece.
The court’s stay of its own judgment expired August 12, and the permanent injunction took effect August 13, 2026. The Department of Justice has not appealed as of this writing. Its window under the ordinary appellate deadline runs to roughly October 4 or 5, 2026.
Rising Circulation Deepens Common Use
Since the injunction took effect, Americans covered by it have continued lawfully acquiring suppressors, short-barreled rifles, and short-barreled shotguns, free of the tax and, for many, free of the registration bottleneck. Every one of those acquisitions matters constitutionally, not just commercially. The Second Amendment’s common-use test does not place the burden on gun owners to prove an arm is common. It places the burden on the government to prove an arm is not — that it is, in the Supreme Court’s phrase, dangerous and unusual. A rising, well-documented base of civilian ownership makes that showing progressively harder for the government to sustain.
The Ratchet: What No Future Congress Can Undo
Here is where the forecast begins, and I want to flag it clearly as forecast. The Supreme Court granted certiorari on June 30, 2026, in Viramontes v. Cook County, No. 25-238, and Grant v. Higgins, No. 25-566, testing whether AR-15-platform rifles are protected arms under the common-use test. Argument is set for December 2, 2026. I expect the Court to rule in the challengers’ favor, reaffirming the common-use framework I have long argued for, in law-review writing including my essay in Per Curiam, the Harvard Journal of Law & Public Policy’s online companion.
If that happens as I predict, a syllogism follows. Handguns are already protected under District of Columbia v. Heller, 554 U.S. 570 (2008). Long guns like the AR-15 would then be protected under the anticipated Viramontes ruling. Short-barreled rifles and shotguns sit doctrinally between those two categories. My forecast is that a future Congress attempting to reimpose taxation or reregistration on them would run headlong into that pincer.
Two additional precedents would compound the problem for any such attempt. Then-Judge Brett Kavanaugh, dissenting in Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011), argued that there is no historical tradition supporting mandatory registration of individual gun owners. He now sits on the Supreme Court. And under Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966), which struck a $1.50 poll tax, and Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983), government cannot impose a targeted tax on a constitutionally protected activity. My forecast is that if Democrats regain full political control after the 2028 election and try to reimpose a tax or a reregistration mandate on these items, both lines of precedent would block them — because by then, common use will already be established.
That is the ratchet. A tax rate is a statute; it can be repealed by the next Congress that assembles the votes. A judicial finding that an arm is in common use, resting on a swollen and growing base of lawful ownership, is not legislation. Once made, it is a constitutional fact, and no later Congress gets to un-find it.
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.