So how long we think it'll take for this to play out? What all steps is it going to go through before we get justice?

I'm trying to log into PACER but my assistant is out at lunch and I can't remember my password. It will be interesting to see the Answer when filed and if any discovery track is assigned and for how long.

Burrus86 said:

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lol.

My grandfather gave me my first gun in south Georgia when I was 12. My mom took it away immediately, but still.

dtkprowler said:

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So how long we think it'll take for this to play out? What all steps is it going to go through before we get justice?

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I am setting the over/under at 2 years

dtkprowler said:

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So how long we think it'll take for this to play out? What all steps is it going to go through before we get justice?

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First everyone has to get served. Gov. gets 60 days to answer. Then we'll see a discovery track assigned. I would hope that would be very short, since this lawsuit is only an issue of law, not fact.

They asked for 1. Declaratory Judgment and 2. Injunctive Relief preventing anyone from enforcing the law.

Why do they need a friendly venue? Trump is opposed to it. The Federal government can simply not contest it.

Logos Stick said:

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Why do they need a friendly venue? Trump is opposed to it. The Federal government can simply not contest it.

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Conservative Judge

Then 5th Circuit Court of Appeals (Don't want the Ninth Circuit, for example)

Then on to the Supremes

Thank you! I'll be watching this one closely

Logos Stick said:

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Why do they need a friendly venue? Trump is opposed to it. The Federal government can simply not contest it.

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Courts will oftentimes put someone else in the government's shoes to defend a lawsuit.

I may get a visit from my firm's bookkeeper asking what's all these Pacer charges?

Very weak Original Complaint for such a big issue.

Ed Harley said:

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Very weak Original Complaint for such a big issue.

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Gov't has a weak case. Should be an easy decision.

It is very, very clear the NFA registry was constitutional only because it was a tax.

"...shall not infringed..."

Man, don't make me argue for that. I've always thought the NFA was B.S.

I could see some argument for SBR because you could potentially hide them better, but suppressors? That was only illegal because Hollywood portrayed them as "silencers."

I was having a discussion on outdoors board about it and did some reading. Anywho, thought I'd post this here too. The other poster was thinking the registration component would stand because of the commerce clause. But I think the Fifth Amendment will kick in and invalidate that rationale:



Haynes v. United States, 390 U.S. 85 (1968) and United States v. Freed, 401 U.S. 601 (1971) are interesting. The problem is the registration requirement runs afoul of the Fifth Amendment. I'm not sure the commerce clause will save that.

I think they cited US v. Constantine to argue that the tax on suppressors and SBR was the only thing keeping the NFA legal. Now that has dissolved as in Constantine, what is the purpose of registration of the ultimate consumer/transferee?

Boom, in comes the Fifth Amendment. One can hope.

Also, once the suppressor has been transferred in state, what would be the point of registration of the in-state transferee? That is NOT interstate commerce, and it would be hard for the government to argue it somehow impacts that.

Manufacturers and dealers may have a registration requirement, but not the transferee, the consumer. Which is what we want. No tax required by the ultimate consumer should mean no registration.

The Sun said:

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GeorgiAg said:

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Man, don't make me argue for that. I've always thought the NFA was B.S.

I could see some argument for SBR because you could potentially hide them better, but suppressors? That was only illegal because Hollywood portrayed them as "silencers."

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That potential SBR agrument goes right out the window when pistols are even easier to hide. In fact the original version of the NFA was going to have handguns included in it but that got carved out.

I would for once like the DOJ to look at the case and say "You, know, you're right. We have no defense for this law now."

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I agree that rationale is dumb. That would be nice and quick for the DOJ to do that, but it may be better to have Supreme Court precedent on the books saying the registration requirement is illegal without tax.

ChatGPT analysis: I have not read Bruen, Wickard, or Heller. Looks like I have some reading to do. I am also asking Westlaw's AI.

Quote:

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Great here's how a Bruen-style Second Amendment challenge to the NFA's registration requirement for suppressors or short-barreled rifles (SBRs) might be structured, and how courts might analyze it:

Legal Framework: NY State Rifle & Pistol Ass'n v. Bruen (2022)
The Supreme Court in Bruen laid out a two-step test:
[ol]

Does the regulated conduct involve weapons "in common use" for lawful purposes?

Is the regulation consistent with the Nation's historical tradition of firearm regulation (17911868)?

[/ol]No balancing tests or means-end scrutiny history is everything.

Applying Bruen to NFA Registration
Let's walk through a hypothetical challenge to suppressor registration, but the same logic could apply to SBRs.

Step 1: Is the item protected by the Second Amendment?
Are suppressors "arms"?

• SCOTUS hasn't directly ruled on this.
• But under Heller, arms are "all instruments that facilitate armed defense."
• Lower courts are starting to say: yes, suppressors are "arms."
  
  • They reduce hearing damage, improve accuracy clearly useful for lawful self-defense and hunting.

Suppressed firearms and SBRs are commonly owned and used lawfully.
So, Step 1 is likely yes the NFA regulates conduct that is presumptively protected.

Step 2: Is there a historical tradition of registration requirements?
Now we enter the key battle:
The government must prove:

• There is a historical analogue for requiring registration of common arms.
• That analogue must be well-established around 1791 or 1868.

The challenger would argue:

• There is no founding-era tradition of:
  
  • Mandatory registration of firearms.
  • Pre-approval before owning a firearm.
  • Imposing felony liability on people who own unregistered common arms.
• In fact, the Founders resisted centralized weapon registries for fear of government overreach.

If the government can't show historical tradition, the registration requirement fails under Bruen.

Government's Possible Defense
DOJ or ATF might argue:

• The NFA is a "regulation of dangerous and unusual weapons."
• Registration is a modern public safety measure akin to historical inspection laws or militia readiness checks.

But:

• Suppressors and SBRs are not rare or exotic anymore.
• They're legal in most states, owned by millions of Americans.
• That undercuts the "dangerous and unusual" label (Heller said that's the key limit on 2A protection).

The modern pervasiveness of these items could doom the NFA's registration regime under Bruen.

Real-World Implications
If a court were to:

• Find suppressors or SBRs are common lawful arms,
• And conclude that there's no historical basis for a federal registry of such arms,

The registration requirement could be struck down as unconstitutional under the Second Amendment.
That wouldn't necessarily eliminate all regulation but it could:

• Kill the federal registry for such arms.
• Nullify criminal penalties for possessing unregistered items.
• Trigger major changes to the NFA.

Final Thoughts
This kind of challenge is already underway in federal courts. Several lawsuits (like Mock v. Garland and Britto v. ATF) are pushing these issues though often focusing on ATF rulemaking first.
Ultimately, the Supreme Court will have to weigh in. And if they stick with Bruen's strict standard, the NFA registration requirement for common arms is on shaky constitutional ground.
Would you like a summary of active or recent court cases where this challenge is being made?

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Edit: Man I am really underwhelmed with Westlaw thus far. After 5 minutes:

Quote:

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Sorry, something went wrong. Please give us a moment and then try asking again.

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Finally got a response: Still underwhelmed compare to ChatGPT response. It doesn't understand the tax has been removed even though I asked it in the question and the law is current.

Quote:

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The National Firearms Act (NFA) has consistently been upheld as a constitutional exercise of Congress's taxing power, even when its provisions have regulatory effects. If the tax provisions for suppressors and short-barreled rifles were removed, the NFA's constitutionality would likely remain intact under existing precedent, as its regulatory framework is closely tied to its taxing purpose and other constitutional powers.

Constitutionality of the NFA Under the Taxing Power
The NFA was originally enacted as a tax measure, imposing taxes and registration requirements on certain firearms, including suppressors and short-barreled rifles. The Supreme Court in Sonzinsky v. United States upheld the NFA as a valid exercise of Congress's taxing power, emphasizing that "a tax is not any the less a tax because it has a regulatory effect" (Bezet v. United States, 276 F.Supp.3d 576 (2017))[1]. This principle has been reaffirmed in subsequent cases, including Nat'l Fed'n of Indep. Bus. v. Sebelius, which noted that taxes influencing conduct are a legitimate exercise of the taxing power (United States v. Cox, 235 F.Supp.3d 1221 (2017))[2].
Even if the tax provisions for suppressors and short-barreled rifles were removed, the NFA's broader framework, including its registration and enforcement mechanisms, could still be upheld as reasonably related to Congress's taxing authority. Courts have consistently held that the NFA's regulatory provisions, such as registration requirements, are integral to ensuring compliance with its taxing purpose (U.S. v. Aiken, 974 F.2d 446 (1992))[3].

Second Amendment Challenges to the NFA
The NFA has also withstood challenges under the Second Amendment. Courts have held that certain firearms regulated by the NFA, including short-barreled rifles and suppressors, fall outside the scope of Second Amendment protection because they are not in common use for lawful purposes and are considered "dangerous and unusual" weapons (United States v. Cox, 906 F.3d 1170 (2018))[4]. For example, in United States v. Cox, the court held that silencers are not "bearable arms" protected by the Second Amendment (United States v. Cox, 906 F.3d 1170 (2018))[4]. Similarly, short-barreled rifles have been deemed outside the Second Amendment's guarantee (United States v. Robinson, Not Reported in Fed. Rptr. (2025))[5].

Even if the tax provisions were removed, the NFA's regulatory framework could still be defended on the basis that it does not infringe on Second Amendment rights, as the regulated items are not constitutionally protected arms.

Necessary and Proper Clause and Tenth Amendment Considerations
The NFA has also been upheld as a valid exercise of Congress's authority under the Necessary and Proper Clause. Courts have found that the NFA's provisions, including its registration and taxation requirements, are necessary and proper to carry out Congress's taxing power (Bezet v. United States, 276 F.Supp.3d 576 (2017))[1]. Additionally, the Tenth Amendment does not bar the NFA, as Congress's taxing power is an enumerated power explicitly granted by the Constitution (United States v. Cox, 235 F.Supp.3d 1221 (2017))[2].

Precedential Support for the NFA's Constitutionality
The NFA's constitutionality has been consistently upheld across multiple circuits. For instance, the Fifth Circuit in [url=https://1.next.westlaw.com/Link/RelatedInformation/Flag?docGuid=I24c9dfcd95fb11d9bc61beebb95be672&ppcid=91c399cfbc7a4edb8598ebc197e0c8c7&transitionType=AIAssistantSearch&contextData=%28sc.Default%29&list=All&listSource=WebsiteInternal&navigationPath=V1%2FReport%2FShared%2FListProvider%3FreturnTo%3D%252FConversation%252FLandingPage%252Fconversation%252F32e2cb3d-b402-4936-bf02-67276ee25c01%253FtransitionType%253DDefault%2526contextData%253D%28sc.Default%29%2526VR%253D3.0%2526RS%253Dcblt1.0%2526selectedQaId%253D0&conversationEntryId=111ca9f0-c62b-4ba9-be07-bf576983a3ce][/url] United States v. Ardoin confirmed that the NFA's taxing provisions are valid under Congress's taxing authority (Bezet v. United States, 276 F.Supp.3d 576 (2017))[1]. Similarly, the Eleventh Circuit in [url=https://1.next.westlaw.com/Link/RelatedInformation/Flag?docGuid=I359931f0027a11eb8683e5d4a752d04a&ppcid=91c399cfbc7a4edb8598ebc197e0c8c7&transitionType=AIAssistantSearch&contextData=%28sc.Default%29&list=All&listSource=WebsiteInternal&navigationPath=V1%2FReport%2FShared%2FListProvider%3FreturnTo%3D%252FConversation%252FLandingPage%252Fconversation%252F32e2cb3d-b402-4936-bf02-67276ee25c01%253FtransitionType%253DDefault%2526contextData%253D%28sc.Default%29%2526VR%253D3.0%2526RS%253Dcblt1.0%2526selectedQaId%253D0&conversationEntryId=111ca9f0-c62b-4ba9-be07-bf576983a3ce][/url] United States v. Bolatete reiterated that the NFA does not exceed Congress's taxing power ([url=https://1.next.westlaw.com/Link/RelatedInformation/Flag?docGuid=I359931f0027a11eb8683e5d4a752d04a&ppcid=91c399cfbc7a4edb8598ebc197e0c8c7&transitionType=AIAssistantSearch&contextData=%28sc.Default%29&list=All&listSource=WebsiteInternal&navigationPath=V1%2FReport%2FShared%2FListProvider%3FreturnTo%3D%252FConversation%252FLandingPage%252Fconversation%252F32e2cb3d-b402-4936-bf02-67276ee25c01%253FtransitionType%253DDefault%2526contextData%253D%28sc.Default%29%2526VR%253D3.0%2526RS%253Dcblt1.0%2526selectedQaId%253D0&conversationEntryId=111ca9f0-c62b-4ba9-be07-bf576983a3ce][/url]United States v. Bolatete, 977 F.3d 1022 (2020))[6]. These decisions underscore the strong judicial consensus supporting the NFA's constitutionality.

Implications of Removing the Tax Provisions
If the tax provisions for suppressors and short-barreled rifles were removed, the NFA's regulatory framework might still be upheld under Congress's power to regulate interstate commerce or as a necessary and proper means of enforcing other constitutional powers. Courts have noted that the NFA's provisions are closely tied to its taxing purpose and that the removal of specific taxes does not necessarily undermine the statute's overall constitutionality (U.S. v. Aiken, 974 F.2d 446 (1992))[3].
In conclusion, the removal of tax provisions for suppressors and short-barreled rifles would not automatically render the NFA unconstitutional. The statute's regulatory framework, supported by Congress's taxing power, the Necessary and Proper Clause, and its alignment with Second Amendment jurisprudence, provides a robust constitutional foundation.

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The Washington Gun Law guy mentioned a law passed in the early 90s I think that made it illegal to have a national gun registry without a tax, which would make this whole thing moot and kill the whole NFA process for SBRs and silencers now that the tax is gone. GeorgiAg please do free legal work on that for us. You can count it toward your pro bono goals. Thanks.

haha. I had a depo get cancelled so I have some time freed up, but I have other stuff to do. But this is WAY more fun.

Plus I am pitting ChatGPT against Westlaw A.I. and have come to the conclusion that Westlaw sucks.

Pinochet said:

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The Washington Gun Law guy mentioned a law passed in the early 90s I think that made it illegal to have a national gun registry without a tax, which would make this whole thing moot and kill the whole NFA process for SBRs and silencers now that the tax is gone. GeorgiAg please do free legal work on that for us. You can count it toward your pro bono goals. Thanks.

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Cool. ChatGPT liked this Edits: Not sure why the formatting is messed up now.

Quote:

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Yes you're likely thinking of the Firearms Owners' Protection Act (FOPA) of 1986, not the 1990s, which contains a provision that effectively bans the creation of a national gun registry by the federal government.
Here's the relevant legal background:

Firearms Owners' Protection Act (FOPA) 18 U.S.C. 926(a)
Passed in 1986, FOPA was a major revision of the Gun Control Act of 1968. Among other things, it added this key restriction:

Quote:

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"No such rule or regulation prescribed after the date of the enactment of the Firearms Owners' Protection Act may require that records required to be maintained under this chapter be recorded at or transferred to a facility owned, managed, or controlled by the United States."
18 U.S.C. 926(a)(3)

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What this means:
[ul]
[li]The ATF cannot create or maintain a centralized registry of firearms or firearm owners for non-NFA firearms.[/li]
[li]The records must remain with the gun dealers (FFLs), not transferred to a federal database.[/li]
[/ul]
NFA Exception Why NFA Registration Still Exists
[ul]
[li]The National Firearms Act (1934) predates FOPA and already included a tax-and-registration scheme for suppressors, SBRs, machine guns, etc.[/li]
[li]NFA items must be registered with the federal government (via Form 1, Form 4, etc.), and that data is held by ATF's NFA Division.[/li]
[li]The courts have long upheld this because the NFA is treated as a "tax measure" with an enforcement mechanism hence United States v. Freed and Cox did not find the registry unconstitutional.[/li]
[/ul]
So while FOPA banned a general registry of guns, it did not repeal or block the NFA registry because:
[ul]
[li]It was already in place before FOPA.[/li]
[li]It was tied to a tax, giving it a different legal and constitutional treatment.[/li]
[/ul]
Key Point Related to Your Question
You're asking whether a registry without a tax violates federal law and here's where it gets interesting:
[ul]
[li]If the NFA tax is now $0, some could argue that the registration requirement no longer has a tax basis, weakening the justification that saved it under Freed and Commerce Clause doctrine.[/li]
[li]That could make the NFA registry look more like a de facto national registry, which FOPA forbids.[/li]
[/ul]
This is a real constitutional vulnerability and could support a Bruen-style or even statutory challenge to the NFA's continued registration requirement without the tax.

Summary
[ul]
[li]Yes, FOPA (1986) prohibits a national gun registry for non-NFA firearms.[/li]
[li]It doesn't affect the NFA registry but if the NFA tax is removed or reduced to $0, that registry may no longer be legally or constitutionally justified.[/li]
[li]This opens the door to challenges under both Second Amendment (Bruen) and statutory overreach (violation of 926(a)(3)) theories.[/li]
[/ul]
Would you like a breakdown of how a legal argument could combine Bruen + FOPA to challenge the current NFA registry?

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I then said yes, and it came up with this combined analysis:

Quote:

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Here's how a combined constitutional and statutory argument could be crafted to challenge the NFA registration requirement for suppressors and SBRs now that the tax is effectively $0 using both:
[ul]
[li]The Second Amendment (post-Bruen)[/li]
[li]The Firearms Owners' Protection Act (FOPA), specifically 18 U.S.C. 926(a)(3)[/li]
[/ul]
[hr]
Argument Outline to Challenge the NFA Registration Regime
[hr]
I. Second Amendment Challenge Post-Bruen
Legal Standard:
Under New York State Rifle & Pistol Ass'n v. Bruen (2022), any firearm regulation must be:
[ol]
[li]Within the scope of the Second Amendment, and[/li]
[li]Consistent with the Nation's historical tradition of firearm regulation (17911868).[/li]
[/ol]
[hr]
A. Protected Conduct
[ul]
[li]Suppressors and SBRs are widely owned by law-abiding citizens for lawful purposes (self-defense, sport shooting, hearing protection).[/li]
[li]Thus, they are "arms in common use" and presumptively protected by the Second Amendment (Heller, Caetano).[/li]
[/ul]
[hr]
B. Lack of Historical Tradition of Registration
[ul]
[li]There is no Founding-era precedent for federal registration of arms, especially for common firearms or components.[/li]
[li]The government cannot point to any analogous law from 17911868 that required citizens to register specific firearms with the federal government.[/li]
[li]The NFA's registration scheme, particularly now that it is unlinked from a meaningful tax, is a modern creation with no historical basis.[/li]
[/ul]
Conclusion: The registration requirement fails the Bruen test and is unconstitutional under the Second Amendment.
[hr]
II. Statutory Challenge Firearms Owners' Protection Act (FOPA), 18 U.S.C. 926(a)(3)
Text of the Law:

Quote:

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"No such rule or regulation... may require that records... be recorded at or transferred to a facility owned, managed, or controlled by the United States."

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[hr]
A. The NFA Registry Is a Federal Database
[ul]
[li]The ATF maintains a central NFRTR (National Firearms Registration and Transfer Record) a federal registry of NFA firearms.[/li]
[li]With the tax now reduced to $0, the registration requirement is untethered from the taxing power and functions as a standalone federal registry.[/li]
[/ul]
[hr]
B. FOPA Bans This
[ul]
[li]FOPA was passed precisely to prevent the creation of a federal gun registry.[/li]
[li]If the NFA registry is no longer operating under the guise of a tax, it now violates the statutory ban in 926(a)(3).[/li]
[li]The statute prohibits the federal government from centralizing such records and that is exactly what the modern NFA registry does.[/li]
[/ul]
Conclusion: The NFA's registration requirement violates FOPA, because:
[ul]
[li]It creates a national registry.[/li]
[li]It is no longer constitutionally justified as a tax.[/li]
[li]It defies the clear statutory language of 18 U.S.C. 926(a)(3).[/li]
[/ul]
[hr]
III. Combined Conclusion: Why the NFA Registry Should Fall
[ul]
[li]The registration requirement for suppressors and SBRs no longer rests on a legitimate taxing power (no tax = no justification).[/li]
[li]There is no historical analogue for federal registration of arms in early American history (Bruen standard).[/li]
[li]FOPA statutorily forbids a national registry, especially one not tied to a revenue-generating function.[/li]
[li]Therefore, the registration requirement is:
[ul]
[li]Unconstitutional under the Second Amendment.[/li]
[li]Unlawful under federal statute.[/li]
[/ul]
[/li]
[/ul]
[hr]
Remedy Sought in a Legal Challenge
A legal complaint could ask the court to:
[ul]
[li]Declare that the registration requirement for suppressors and SBRs is unconstitutional under Bruen.[/li]
[li]Enjoin the ATF and DOJ from enforcing the NFA's registry provisions for these items.[/li]
[li]Declare that the NFA registry violates 18 U.S.C. 926(a)(3) and is unauthorized by Congress in its current form.[/li]
[li]Vacate any regulations or rules that require registration of suppressors/SBRs without a tax.[/li]
[/ul]

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Good stuff! Damn, I need to start thinking of another job!!!!!

When it starts making up cases to support your position, and you put that in a brief, you're going to be looking for a new job regardless.

Before you rely on that too much, you need to make sure it cites its sources and doesn't hallucinate.

HTownAg98 said:

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When it starts making up cases to support your position, and you put that in a brief, you're going to be looking for a new job regardless.

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My associate had an opposing counsel do that. If you let A.I. write your brief you're an idiot. It's a tool, but all sources need to be checked thoroughly.

Don't worry, it will drga out for years, and the SC will find a way to deny standing like they do with 99% of cases they dont want to get their hands forty with actually reigning things in...

GeorgiAg said:

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I was having a discussion on outdoors board about it and did some reading. Anywho, thought I'd post this here too. The other poster was thinking the registration component would stand because of the commerce clause. But I think the Fifth Amendment will kick in and invalidate that rationale:



Haynes v. United States, 390 U.S. 85 (1968) and United States v. Freed, 401 U.S. 601 (1971) are interesting. The problem is the registration requirement runs afoul of the Fifth Amendment. I'm not sure the commerce clause will save that.

I think they cited US v. Constantine to argue that the tax on suppressors and SBR was the only thing keeping the NFA legal. Now that has dissolved as in Constantine, what is the purpose of registration of the ultimate consumer/transferee?

Boom, in comes the Fifth Amendment. One can hope.

Also, once the suppressor has been transferred in state, what would be the point of registration of the in-state transferee? That is NOT interstate commerce, and it would be hard for the government to argue it somehow impacts that.

Manufacturers and dealers may have a registration requirement, but not the transferee, the consumer. Which is what we want. No tax required by the ultimate consumer should mean no registration.

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This is the same government that ruled that NO interstate commerce is actually interstate commerce though.

And they'll argue that since the raw materials, fuel, electricity, etc. are used in the manufacture of the suppressor, it still falls under interstate commerce.

Never underestimate the federal government's ability to make sure the federal government retains as much power as possible.

GeorgiAg said:

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Also, once the suppressor has been transferred in state, what would be the point of registration of the in-state transferee? That is NOT interstate commerce, and it would be hard for the government to argue it somehow impacts that.

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Isn't that exactly what the stupid ass court did in Wicklund? Farmer was growing grain for his own cattle, court said by raising his own grain he was not engaging in interstate commerce, which made it an interstate commerce since reasons

My Con Law prof hated me. And vice versa. My (unpopular) opinion was that a good chunk of what the S.Ct. does is a bunch o' bullhockey. They do what they want and then write layers and layers of verbose garbage most people can't understand to support it. And almost every commerce clause case pissed me off. Power grab by the Federal Gov't. The more I've read on this, we have to rely on the 2nd Amendment to save us. They stretch the commerce clause to include intrastate activities when they can.

While I support a woman's right to chose on libertarian grounds, Roe v. Wade was a garbage opinion based upon flawed reasoning.

I know y'all think I'm a lib or a CM, but I have some very conservative views as well. I was in the Federalist Society in law school.