Is DOJ Pulling a "Windsor" with the NFA?

Could the Trump Department of Justice (DOJ) protection of the National Firearms Act (NFA) in Silencer Shop v BATF be a tactical move to bring the case to the Supreme Court?

The Supreme Court case United States v Windsor upended centuries of precedent and jurisprudence in the United States by finding a key part of the Defense of Marriage Act to be unconstitutional. The Obama administration played a key part in this policy shift by claiming the act was constitutional thus protecting “standing” in the case. Later, the Obama DOJ switched sides and agreed with Windsor the Defense of Marraige Act was not constitutional. The Supreme Court held for Windsor in a 5-4 decision.

According to Mark Smith, prominent Second Amendment advocate and member of the Supreme Court Bar, and frequent writer at AmmoLand, the tactic of the federal government arguing for one side of a case until the case reaches the Supreme Court, then switching sides, has come to be known as “pulling a Windsor”. The DOJ defense of the NFA in the Fifth Circuit is very unpopular with Second Amendment supporters. From John Crump at AmmoLand:

Trump’s DOJ is hailed as the “most pro-gun DOJ ever,” but its response to the GOA lawsuit paints a different picture. The Justice Department took a more adversarial stance in the lawsuit, ignoring pleas from members of Congress such as Andrew Clyde. The DOJ is vigorously defending the NFA.

The DOJ claims that the NFA is still a tax, despite no revenue being collected. They say that, because it is still a tax in their view, the law is constitutional because the power is given to them through the Interstate Commerce Act. The DOJ also claims that the NFA is necessary because of the “concealability” of SBRs and SBSs. GOA argues that if all it took to regulate a firearm, then all handguns could be banned.

The support of the Obama DOJ for the constitutionality of the Defense of Marriage Act was excoriated by Gay Rights groups. In February of 2011, the Obama administration reversed its position.  On June 26, 2013, the Supreme Court ruled the critical part of the Defense of Marriage Act was unconstitutional. Gay Rights groups were very happy with the result.

Mark Smith argues the same sort of tactic may be at work in the Silencer Shop v BATF case. The Supreme Court will not hear cases unless there is an actual dispute where the parties have standing in the case. The Trump DOJ brief insures there is an actual dispute, and the DOJ continues to have standing. The Trump DOJ has done the most of any administration in history to restore rights protected by the Second Amendment.

It is a plausible explanation of the actions of the DOJ to be using the Silencer Shop v BATF as a vehicle to rule large portions of the NFA as unconstitutional. To do so, the case has to be accepted by the Supreme Court. The Supreme Court rarely turns down a case where the DOJ asks for the case to be heard.

This correspondent does not have any inside information about the Trump DOJ. The DOJ arguments in their brief appear to be an attempt to defend the NFA. They also appear less than overwhelming. Some would say the arguments are “weak”. This may be because there are no actual strong arguments.

Only time will determine if the Trump DOJ switches sides once the case is accepted by the Supreme Court. A Supreme Court decision would be better than a legislative solution. The Trump administration worked hard to reform the NFA as part of the ”Big Beautiful Bill”. They removed the taxes from silencers, short barreled firearms, and any other weapons.  This may be a tactic to remove those items from the NFA entirely.

©2025 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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