Though the Department of Justice declined to ask a federal judge to extend the stay on his decision that the NFA’s registration scheme is unlawful when it comes to now-untaxed items, allowing his injunction to take effect as of today, the department still has nearly two months to decide whether or not to appeal that decision to the Fifth Circuit.
Not asking for the stay to remain in place is a very good sign, but a statement that DOJ does not plan to appeal would be even better. Unfortunately, when given the option to do so earlier today, the agency pointedly took a pass.
Asked about this tweet, the Justice Department specifies in an unsigned statement: “Not staying the case is different than not appealing. We are not going to stay the case.” https://t.co/PGKHZaekm2
— Chris Cameron (@ChrisCameronNYT) August 13, 2026
That’s actually the second unsigned statement on the case that DOJ has given the New York Times in the past 24 hours. The outlet reported this morning that in a separate unattributed statement hours before the midnight deadline to request the stay continue, the Justice Department said that it “respects Americans’ Second Amendment rights and is currently assessing the impact of the court’s ruling.”
That statement, too, leaves the door open for the Department of Justice to ultimately continue to defend the NFA registration and marking requirements, even if they have not yet taken any steps to do so.
We also haven’t seen any guidance from DOJ or ATF about how to navigate the current legal landscape. I’m not particularly surprised by that, since my guess is that both DOJ and ATF attorneys are trying to figure that out, but I would have expected at least some acknowledgement on social media from both agencies about the significant changes that are now in place… even if they’re not quite ready to offer specifics on what those changes mean for buyers, retailers, distributors, and manufacturers.
This is interesting. Might be preferable for gun-rights advocates in the end. An appeal sets up the possibility of a precedential ruling from a 5th Circuit panel, but the lack of stay likely means the injunction is in effect throughout. https://t.co/wHfTzAYjFV
— Stephen Gutowski (@StephenGutowski) August 13, 2026
That’s actually the outcome that Second Amendment attorney Kostas Moros and others have been rooting for, though groups like Gun Owners of America and about 50 members of Congress (led by Georgia Rep. Andrew Clyde) have called on DOJ to simply stop defending the challenged provisions and work instead to codify the judge’s rulings into DOJ/ATF policy.
The DOJ doesn’t have to request a stay of the injunction if it does decide to appeal, though it would be a little out of the ordinary to argue that the statutes need to be enforced but it can wait until after the Fifth Circuit has weighed in. And an appeal does generate the risk, however small, that the Fifth Circuit or the Supreme Court would overturn the district court decision. I don’t think that’s likely to happen with the current makeup of the Fifth Circuit and SCOTUS, but we also have no idea what the Court might look like when and if a cert petition would be filed in Jensen/Silencer Shop.
Regardless of whatever DOJ decides to do with an appeal, at the moment there is a lot of confusion and a number of questions surrounding the current legal landscape. Both Firearms Policy Coalition and SAF/CCRKBA have now sent letters to the Justice Department looking for some answers.
Following our FPC-backed Jensen v. ATF NFA victory, the legal team sent @TheJusticeDept a letter seeking answers to key questions. We’ll keep you posted.
Read the letter here: pic.twitter.com/D2cFKkBcFd
— Firearms Policy Coalition (@gunpolicy) August 13, 2026
With the permanent injunction in Jensen v. ATF now effective, a litany of questions have arisen regarding the treatment of both the people and arms affected by the injunction.
SAF and its partners have just sent a letter seeking additional clarification and guidance from the… pic.twitter.com/0KBK4ueqdc
— SAF (@2AFDN) August 13, 2026
We’ll probably see more inquiries to the DOJ from other orgs and businesses, and hopefully we won’t have to wait too long to see what the DOJ says in response.
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