On September 24, Solicitor General D. John Sauer wrote to Congress that the Department of Justice “has determined not to file an appeal” in Silencer Shop Foundation v. ATF, No. 6:25-CV-056-H (N.D. Tex.), the case in which Judge James Wesley Hendrix held that the National Firearms Act’s registration regime for suppressors, short-barreled rifles, short-barreled shotguns, and “any other weapons” can no longer stand. The letter became public on October 1, when the government attached it as Exhibit 1 to a filing on the docket (ECF 145). Two weeks after CBS reported that the President had ordered this outcome, the Justice Department has now said it in its own voice.
What a Section 530D Letter Is
The statute is 28 U.S.C. § 530D. It requires the Attorney General to report to Congress whenever a Justice Department officer decides not to appeal an adverse ruling on the constitutionality of a federal provision, and the report is due no later than thirty days after the determination. The duty is statutory, and the notice goes on the record of a coordinate branch of government.
That is why it carries more weight than the September 17 news account. A report that unnamed sources say the President wants no appeal can be walked back, denied, or overtaken by internal dissent. A section 530D notice cannot. The Solicitor General controls appeals for the United States, and the letter states the operative sentence without qualification:
“Consistent with 28 U.S.C. [§] 530D, I write to advise you that the Department of Justice has determined not to file an appeal in the above-referenced case.”
The copy posted by the Department is addressed to Speaker Mike Johnson. The statute contemplates notice to Congress as a whole, and the Department’s own motion later describes the filing as a letter “to Congress.”
What the Solicitor General Conceded
The letter does more than announce a decision. It summarizes the judgment accurately and without hostility. It recounts that Sonzinsky v. United States, 300 U.S. 506 (1937), sustained the NFA as an exercise of the taxing power, and that in 2025 Congress, through the One Big Beautiful Bill Act, eliminated the $200 making and transfer taxes on these items. It then acknowledges that Congress “left in place the ‘web of regulation’ that was originally meant to ‘aid enforcement’ of the NFA’s now-extinct taxes.”
The Solicitor General recites, without disputing them, both holdings: that the registration provisions cannot be sustained under the taxing power, and that they cannot be sustained under the commerce power. A litigant preserving an appeal does not write that way. A litigant that has decided the district court got it right, or at least that it is not worth contesting, does.
The scope of the relief deserves precision, and the letter supplies it. The permanent injunction bars enforcement of the challenged provisions “against the plaintiffs and, where applicable, the plaintiffs’ agencies, political subdivisions, members, and customers.” Hendrix decided the case on Article I grounds; the Second Amendment claims were dismissed as abandoned. And the ruling does not touch machine guns or destructive devices.
Final and Binding
The government’s time to appeal runs sixty days from the August 5 final judgment. October 4 is a Sunday, so the last day is Monday, October 5. No stay was sought in the Fifth Circuit after the injunction took effect on August 13, and no appeal will follow. When the deadline passes, the judgment stands as written. The appeal I expected has been formally abandoned, and no appellate court will rewrite the ruling.
I have argued that the consequences reach beyond this injunction. As I see it, the items at issue are in common use by law-abiding Americans, and a Congress that tries someday to restore a tax on them will meet the Second Amendment on top of the Article I problem. I have laid out that reasoning at length elsewhere, and I will forecast here only what I expect: that the Court’s eventual decision in Viramontes v. Cook County, set for argument on December 2, will reinforce it.
The States and the Ten Days
One matter remains open, and on it I part company with allies. Nine of the fifteen plaintiff states moved on September 11 (ECF 144) for clarification of the injunction, asking whether it applies statewide to all relevant transfers in the plaintiff states and whether ATF must notify or identify covered individuals. In the same filing that disclosed the Solicitor General’s letter, the government asked for ten more days. Its stated reason is that it “require[s] additional time to consider [its] position on the states’ motion given two recent developments,” the letter and the fact that ATF is working to finalize public guidance. The states opposed the extension.
In my judgment that opposition is a strategic mistake. ATF’s guidance “will likely inform defendants’ position on and the Court’s resolution of the states’ motion,” in the government’s words, and it may prove more generous than any clarification Judge Hendrix would issue. The states give up nothing by waiting, because they can return to the court if the guidance falls short of the judgment. They risk something by rushing. A narrow clarification from the bench would leave them with no path back to relief the agency might have conceded voluntarily. Ten days is a small price for that option. I will address the dispute in more depth separately.
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.