Since the Bureau of Alcohol, Tobacco, Firearms and Explosives announced that it will stop requiring approval and registration for short-barreled rifles, short-barreled shotguns, and suppressors, a worry has spread among gun owners. The policy follows Judge James Wesley Hendrix’s final injunction in Silencer Shop Foundation v. ATF and Jensen v. ATF in the Northern District of Texas. The worry is that it is a trap: that owners who make or acquire these items without registering them will be exposed as felons if a future Congress and president revive the National Firearms Act. My answer is that the risk is real but low, and history explains why.
What the Policy Is, and What It Is Not
ATF’s step is an exercise of enforcement discretion. It is not a repeal of the statute, and it is not an amnesty. The NFA remains in the United States Code. The agency has simply chosen not to enforce its approval and registration requirements against these items, for everyone and not only the plaintiffs.
That distinction cuts both ways, and candor requires me to say so. A policy of non-enforcement can be withdrawn. As reported, the accompanying FAQ reserves ATF’s ability to resume enforcement if legal or factual circumstances materially change.
Other limits stand untouched. State and local laws are unaffected, so owners in states that ban suppressors or short-barreled firearms remain bound by them. Interstate transport of short-barreled rifles and shotguns still implicates Form 20 notice, and ATF has said it will not enforce 18 U.S.C. § 922(b)(4) in the interim.
Registration Has Never Been the American Tradition
The case against the trap theory begins with a historical point that is easy to overlook: registration of lawfully owned firearms is foreign to the American legal tradition. Judge Hendrix’s reasoning rested on Article I. Once Congress zeroed out the $200 tax on these items, the taxing power no longer supported a registry built to collect it. A future Congress could restore a tax and attempt to rebuild that bridge. The Second Amendment would then stand on the other side of it.
Then-Judge Brett Kavanaugh made the point in dissent in Heller v. District of Columbia (Heller II), 670 F.3d 1244 (D.C. Cir. 2011), writing:
“Registration 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.”
That is a historical judgment from a jurist who now sits on the Supreme Court, and it is the method Bruen commands: the government must point to a tradition of comparable regulation. A national registry of protected arms has no such pedigree.
What Congress Said in 1941
Congress itself recognized the limit eighty-five years ago. In October 1941, with war approaching, it granted the executive broad authority to requisition military and naval equipment. The Act of October 16, 1941, 55 Stat. 742, nonetheless contained a limitations clause:
“Nothing contained in this Act shall be construed— (1) to authorize the requisitioning or require the registration of any firearms possessed by any individual for his personal protection or sport (and the possession of which is not prohibited or the registration of which is not required by existing law), (2) to impair or infringe in any manner the right of any individual to keep and bear arms …”
A Congress preparing for total war still expressly disclaimed any power to compel the registration of personal firearms. That is a legislative precedent running directly against a registry.
The Constitutional Ratchet, in Brief
My larger forecast supplies the final layer of protection. I expect the Supreme Court to rule for the petitioners in Viramontes v. Cook County and Grant v. Higgins by June 2027 and to reaffirm that arms in common use for lawful purposes are protected. I believe suppressors and short-barreled arms will meet that standard by 2029, and that a protected category of arms cannot be banned, singled out for a targeted tax, or registered. That is my prediction and my legal position, not a holding, and I have developed it elsewhere.
An Honest Bottom Line
I do not tell gun owners the risk is zero. A hostile administration could attempt a revived registry, a new tax, or a prosecution campaign, and ATF’s policy guarantees nothing against it. But such an effort would meet a formidable wall: a Supreme Court precedent protecting common arms, a historical record that contains no registration tradition, and a statute from 1941 showing that even a wartime Congress would not touch personal firearms.
I therefore regard the trap theory as a legitimate question and an unlikely outcome. Owners should still comply with state law, observe the interstate-transport rules, and follow developments closely. The history of the future remains to be written, but the burden of writing it now falls on those who would revive a registry that the American tradition never contained.
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.