WASHINGTON — It’s been nearly a month since the now widely known district court decision that enjoined enforcement of portions of the NFA as they relate to untaxed firearms. And despite the ATF’s assurance that it will not take enforcement action against protected parties, the dealer landscape is fractured in how shops are approaching suppressor sales.
On August 28, ATF Director Robert Cekada posted a statement on X providing an update on the August 5 Silencer Shop v. ATF ruling. The post was in response to criticism suggesting the ATF was looking to take revenge on gun owners.
Director Cekada stated, “ATF respects the Court’s ruling and the rule of law. We are following the order and will not take enforcement action against protected parties inconsistent with that ruling. We are working diligently on clear guidance. Getting it RIGHT matters more than getting it out fast.”
In its August 5 decision, the court permanently enjoined Director Cekada and the ATF from enforcing the challenged NFA provisions against the plaintiffs, writing, “The plaintiffs in both cases are entitled to a permanent injunction barring enforcement of the challenged NFA provisions against them, their members, and their customers.”
Recognizing the complexity and difficulty of enforcing the injunction, the court devoted several pages to explaining how it arrived at the scope of relief, noting along the way, “In any event, if there are practical difficulties with enforcing a party-specific injunction, that is ‘the National Government’s problem, not [the Court’s].'”
But who is a plaintiff?
While the court’s statement seems straightforward enough, it belies the complexity of how the injunction is applied, given the interwoven relationships among the various parties. The named plaintiffs in the consolidated cases (Silencer Shop Foundation v. ATF and Jensen v. ATF) include:
Silencer Shop Foundation; Brady Wetz; B&T USA; Palmetto State Armory; SilencerCo Weapons Research; Gun Owners of America; Firearms Regulatory Accountability Coalition; Gun Owners Foundation; the states of Texas, Alaska, Georgia, Idaho, Indiana, Kansas, Louisiana, Montana, North Dakota, Oklahoma, South Carolina, South Dakota, Utah, West Virginia, and Wyoming; John Jensen; Jeremy Neusch; David Lynn Smith; Hot Shots Custom; Texas State Rifle Association; FPC Action Foundation; and Citizens Committee for the Right to Keep and Bear Arms.
The injunction also applies to another category: members of the associational plaintiffs (including commercial members) – GOA, GOF, FRAC, Texas State Rifle Association, FPC Action Foundation, and CCRKBA. Yet, the court even here draws a line, writing, “But to be clear, the Court’s injunction does not extend to the above-noted customers in all circumstances. Because the injunction remedies the injuries to the plaintiffs, it only covers current and future customers’ transactions with the plaintiffs and their commercial members.”
As for the states, the court determined that the injunction extends to the plaintiff states, their agencies, and their political subdivisions – not to every resident of those states.
Current Sales Environment
Against this backdrop, vendors, distributors, and dealers are taking individual approaches to suppressor sales, the least complex of the affected NFA items.
Palmetto State Armory is taking one of the more aggressive approaches. It has said that Form 4s – and their attendant fingerprint, photograph, and registration requirements – are not necessary for qualifying in-store suppressor sales in South Carolina to South Carolina residents.
It also notes that the less invasive Form 4473 process is available for some online orders, with limitations. PSA also explains why further ATF guidance still matters: “This protection is not nationwide, and it may not be permanent. Taking it across a state line is an open question. Selling, giving, or leaving it to someone else is an open question.”
Additionally, PSA published a video stating that it is taking a multi-phase approach to handling suppressor sales, online transactions, and eventually, SBRs and SBSs.
Silencer Shop advertises “No wait times. No registry.*” on its site and states that, because of the ruling, “In the 27 Free States, suppressors are off the NFA entirely – no Form 4, no fingerprints, no ATF wait time, and no registry. A suppressor now transfers like any other firearm: pass a standard background check at your dealer and walk out, typically the same day.”
Yet, some Tennessee-based FFLs with Silencer Shop kiosks (and Silencer Shop-originated transactions) have opted to require Form 4 transfers, preferring to wait for ATF guidance. We are aware of at least one case in which Silencer Shop itself is requiring an online customer attempting an individual sale to complete Form 4 requirements, including fingerprints.
SilencerCo is communicating that customers in 27 states have two potential paths, with heavy caveats. The Traditional Form 4 is available, but the 4473-only process may be available to individuals depending on how they purchase the suppressor (through a participating dealer in an applicable state). But, like PSA, SilencerCo warns of pitfalls, writing, “SilencerCo strongly encourages customers who purchase using Form 4473 to keep the suppressor in the state of purchase. If you regularly hunt, compete or travel out of state, consider using the traditional Form 4 process.”
It’s clear that ATF guidance is needed in order for dealers to comfortably proceed with transfers with no retroactive risk to their business or customers. The question is how long will it take the ATF to furnish this guidance, and will it provide a retroactive pathway to compliance for those who proceeded with good intentions, but may not have strictly complied?
