On October 12, the Department of Justice filed its response in Silencer Shop Foundation v. ATF, No. 6:25-CV-056-H, consolidated with Jensen v. ATF, No. 6:26-CV-227, opposing a motion by a group of state plaintiffs asking Judge James Wesley Hendrix to clarify his permanent injunction. The filing, ECF No. 147, argues that the court need do nothing. My reading of it is narrower than the shorthand suggests, and my view of the states’ strategy is firm: a party holding a final judgment should think hard before asking the court to touch it.
What the States Asked For
The states’ motion, ECF No. 144, was filed on September 11. It asks whether the injunction obliges ATF to give federal firearms licensees guidance on the transactions and persons it covers, and whether it bars enforcement of the challenged National Firearms Act provisions as to any person or transaction within the plaintiff states.
The injunction, as the government’s brief quotes it, provides:
“[T]he Court permanently enjoins the Bureau of Alcohol, Tobacco, Firearms and Explosives, the United States Department of Justice, Todd Blanche in his official capacity, Robert Cekada in his official capacity, their divisions, bureaus, agents, officers, commissioners, employees, and anyone acting in concert or participation with them, including their successors in office, from enforcing the challenged provisions of the National Firearms Act as to untaxed firearms against the plaintiffs and, where applicable, the plaintiffs’ agencies, political subdivisions, members, and customers—both current and future.”
The text binds Attorney General Blanche, Director Cekada, and their successors in office. It protects the plaintiffs and, where applicable, their members and customers. It does not say that it reaches every resident of every plaintiff state, and that gap is what the states want resolved.
DOJ’s Response
DOJ relies first on ATF’s October 9 open letter and FAQs, which I have covered separately. Those documents, it says, supply all the guidance the states seek: “Given recent developments, however, there’s no need for the Court to clarify its injunction in either respect.” Its second point follows: “because ATF is not enforcing the challenged NFA provisions in any state, clarifying whether the Court’s injunction entirely prohibits enforcement in a particular group of states would have no real world impact.”
That is the portion most often summarized. The brief does not stop there. DOJ also contends that the injunction “cannot be fairly read” to bar enforcement against everyone in the plaintiff states. In its telling, the injunction runs in favor of the plaintiffs and their agencies and political subdivisions, the states’ standing rested on compliance costs, and a state may not sue as parens patriae for its residents, citing Murthy v. Missouri, 603 U.S. 43 (2024), and Haaland v. Brackeen, 599 U.S. 255 (2023). It adds that the injunction imposes no affirmative duty on ATF to issue guidance, and that the states’ request for such an order, filed 37 days after final judgment, is an untimely Rule 59(e) attempt to modify it. It notes that the states described their relief more narrowly in Brown, and it concludes: “The states can’t have it both ways.”
Why I Would Let Sleeping Dogs Lie
My judgment does not depend on how Judge Hendrix rules. The states hold a final judgment from a Trump-appointed district judge who held, on Article I grounds, that the NFA’s restrictions on suppressors, short-barreled rifles, and short-barreled shotguns cannot stand once Congress reduced the transfer tax to zero. Asking the court to revisit the injunction’s scope risks leaving the question where it was or, worse, an answer that narrows what the plaintiffs and their members and customers already have. A motion to clarify also invites the government to brief the limits of the relief, and DOJ has now done exactly that. A good judgment can be made worse by an application to improve it.
I read the October 9 letter as an exercise of prosecutorial discretion, not a substitute for a judgment. It is a policy that a later administration could withdraw. The injunction binds the defendants’ successors in office as to the covered persons, and a change of administration does not alter that.
Where Durable Protection Will Come From
The way to extend that protection is to add judgments, not to reopen this one. Brown v. ATF, No. 4:25-cv-1162, is pending before Chief Judge Stephen R. Clark in the Eastern District of Missouri, within the Eighth Circuit. Roberts v. ATF, No. 2:26-cv-00091, is pending before Judge S. Chad Meredith in the Eastern District of Kentucky, within the Sixth Circuit. Filing across the Fifth, Eighth, and Sixth Circuits was sound litigation strategy.
My expectation, and it is only that, is that wins in those cases would yield additional permanent injunctions covering additional plaintiffs, members, and customers in additional states. Each shrinks the population a future anti-gun Justice Department could pursue. I remain skeptical that any such prosecution could succeed, given entrapment by estoppel and the “in common use” test, but every additional injunction makes the attempt harder.
The principle beneath all of this is the separation of powers: Congress may not regulate through a taxing power it has stopped exercising. The task now is to make that holding permanent through judgments that bind the government regardless of who governs.
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.