I was highly intrigued by my colleague Tom Knighton’s earlier post about Four Boxes Diner’s Mark Smith and his theory that the DOJ’s ongoing defense of the National Firearms Act may just be a ploy to get an NFA case before the Supreme Court, at which point the Trump administration would reverse course and suddenly decline to defend the statute.
You can check out Smith’s argument below, but I have to say I’m glad that Smith is still willing to entertain the possibility that there isn’t a secret reason why Attorney General Pam Bondi is fighting for the NFA.
In the video, Smith points to the Windsor case, in which the Supreme Court threw out Section 3 of the Defense of Marriage Act. As Smith notes, the Obama administration originally defended DOMA before shifting its position and declining to do so.
Smith theorizes that the Trump DOJ may be “pulling a Windsor”, which he defines as defending a law in the lower courts in order to keep the controversy live until it gets to the Supreme Court. Smith specifically points to the Silencer Shop v. BATF lawsuit, which is still in federal district court, and where the DOJ is defending the tax and registration requirements for NFA items, despite acknowledging that at least one of those items (suppressors) are protected by the Second Amendment.
The theory is that when Silencer Shop eventually reaches the Supreme Court, the DOJ would shift its position and decline to defend the NFA before the High Court.
While that’s certainly possible, I don’t think it’s likely.
First, the Obama administration didn’t actually wait until the Supreme Court granted cert in Windsor before it shifted its position on DOMA. The flip took place long before that. Windsor was filed in federal court in New York in November, 2010. On February 23, 2011, then-Attorney General Eric Holder announced that the DOJ would not be defending the challenged section of DOMA. The flip happened while the case was still in district court, not SCOTUS. In fact, the DOJ shifted position early on in the district court process.
So, if the Trump DOJ is “pulling a Windsor”, there’s no reason to wait until the case reaches SCOTUS. If the DOJ reversed course now, other interested parties could ask the court to intervene and defend the NFA, as the House of Representatives did with Windsor. In the case of Silencer Shop v. BATF, there’s no shortage of anti-gun AGs like California’s Rob Bonta and New Jersey’s Matthew Platkin who would love to head up the defense of the National Firearms Act.
That’s not the only reason I’m unconvinced that the DOJ is playing 4D chess with the NFA. Silencer Shop is one of multiple challenge to the NFA out there. The Peterson case, which deals with suppressors, is pending in the Fifth Circuit. But there are also two NFA cases that the Supreme Court is slated to consider in conference next week; Rush v. U.S. and Robinson v. U.S., which both challenge the constitutionality of the NFA restrictions on short-barreled rifles.
As recently as October 20, the DOJ was still vociferously defending those restrictions and urging the Court to not hear the case.
Petitioner renews his contention that the NFA’s prohibition on possessing unregistered short-barreled rifles violates the Second Amendment. He also contends that the NFA’s transfer tax exceeds Congress’s Article I taxing power and violates the Tenth Amendment. The court of appeals correctly rejected those contentions, and its decision does not conflict with that of any other court of appeals. No further review is warranted.
If the DOJ is going to “pull a Windsor”, why not do it with one of the cases that’s further along than Silencer Shop?
Look, I’d love it if the DOJ was secretly plotting to bring down the NFA but was just waiting for the right moment to suddenly and publicly reverse its defense of the statutes. I just don’t see any evidence at all that’s the case. Even Harmeet Dhillon, the Assistant Attorney General who heads up the DOJ’s Civil Rights Division and has been taking an active role in challenging state-level gun control laws, has publicly shot down arguments that the DOJ shouldn’t be defending the NFA.
Another bad take re @TheJusticeDept’s indisputable pro-Second Amendment credentials under @AGPamBondi’s leadership.
As our brief explains, there is no circuit split (division of authority) on whether the NFA’s taxation and registration requirements for short barreled rifles are… https://t.co/N24jKdScbC
— AAGHarmeetDhillon (@AAGDhillon) October 14, 2025
Dhillon didn’t say anything about the constitutionality of the NFA itself, which is good, but again, the DOJ doesn’t have to be the one actively defending the National Firearms Act. It could decline to do so today but allow for other interested parties to defend it instead, as Holder did with Windsor. In fact, if the DOJ was hoping to create a circuit court split on the issue it should flip now and weigh in on the side of the plaintiffs, which would only help their case going forward.
I admire and respect Mark a great deal, and like I said, I’d love for him to be right about this. My take, though, is that while the DOJ is doing historic and outstanding work in challenging state-level gun laws, it’s also defending (or at least taking non-adversarial stances) on a number of federal gun control laws; not just those dealing with NFA items, but prohibited persons, and under-21 gun bans. This is the most pro-2A DOJ in our nation’s history, but that doesn’t there isn’t room for improvement.
Editor’s Note: The mainstream media continues to lie about gun owners and the Second Amendment.
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