WASHINGTON — On May 27, the Department of Justice aggressively defended the National Firearms Act in a 56-page motion opposing summary judgment in Roberts v. ATF. The entire context of the government’s position is based upon “whether Congress has exceeded its enumerated powers or violated a fundamental right in making the policy choice to enact the NFA,” allowing it to neatly sidestep the question of the constitutionality of the NFA itself.
The government’s brief is in response to a coalition of gun rights groups’ April motion for summary judgment (the suit was originally filed in February of 2026). The brief was issued by Brett A. Shumate, Assistant Attorney General, Civil Division (not to be confused with the Civil Rights Division, which has consistently taken a pro-2A perspective on every legal action, which we have documented thoroughly in our DOJ Action Tracker).
The DOJ offers three main legal assertions in defense of the NFA, arguing:
- Plaintiffs lack standing to challenge some NFA regulations.
- There is no merit to some arguments because the NFA’s tax on businesses that manufacture, distribute, or deal in regulated firearms was left intact by the “One Big Beautiful Bill.”
- The NFA is appropriately administered under Congress’s powers under the Commerce Clause and the Necessary and Proper Clause.
Although the DOJ contends it is not addressing the constitutionality of the NFA, it takes a decidedly pro-gun control stance in its defense of the act, citing Heller and arguing that the “NFA’s modest regulations on short-barreled rifles and suppressors are both presumptively constitutional consistent with this Nation’s historical tradition of regulating uniquely dangerous weapons that, notwithstanding their lawful and beneficial uses, are particularly susceptible to criminal misuse.”
The DOJ relies heavily on the argument that if Congress passed a law (in this case, the NFA), it is presumptively constitutional, writing, “Plaintiffs facially challenge the constitutionality of certain NFA requirements. To succeed, plaintiffs must overcome the ‘presumption of constitutionality’ that attaches to every Act of Congress.”
However, the same DOJ declined to defend certain parts of the Defense of Marriage Act in United States v. Windsor (2013), where they argued it violated equal protection, making its presumption of constitutionality of the NFA quite selective and appearing to take sides on a politically charged issue.
Further underscoring the DOJ’s partiality is their assertion that there is “…no evidence that those requirements or related prohibitions are causing them ongoing or certainly impending harm…” – the implication being that registration schemes and heavy regulation are acceptable infringements when it comes to Second Amendment issues.
The brief goes on to offer other defenses of the NFA under more complex legal arguments, including Congress’ taxing power and interstate commerce oversight.
Despite its assurance that this is purely a question of enumerated powers, the DOJ brief is rife with arguments in defense of gun control, including this statement invoking the Bruen test:
Third, the NFA’s regulation of short-barreled rifles and suppressors is “consistent with this Nation’s historical tradition of firearm regulation.” Bruen, 597 U.S. at 17. As the Supreme Court has consistently observed, American legislatures have long “prohibited the carrying of ‘dangerous and unusual weapons.'”
Invoking Bruen begs the question about the DOJ’s true intent, as Bruen is most often used to test whether modern laws regulating firearms are constitutional. And even here the DOJ makes an argument that is difficult to defend, given that NFA items like short-barreled rifles and suppressors are not dangerous or unusual by any of the precedents set forth by modern courts.
