NFA Unconstitutional: Jensen v. ATF Ends 91-Year Gun Tax

NFA’s Unconstitutionality Traced to Prohibition: A History of Deceptive Gun Control

The NFA’s story begins in the shadowed alleys of 1930s America, where bootleggers and mobsters wielded machine guns like Al Capone’s infamous Thompson submachine guns during the 1929 St. Valentine’s Day Massacre. Seven men gunned down in cold blood ignited public fury, pressuring Congress to act without directly assaulting the Second Amendment.

Enter the workaround: On June 26, 1934, President Franklin D. Roosevelt signed the National Firearms Act, imposing a prohibitive $200 transfer tax—equivalent to about $4,500 in today’s dollars—on “gangster weapons” including short-barreled rifles (SBRs), short-barreled shotguns (SBSs), suppressors (derisively called “silencers”), machine guns, and destructive devices. Registration was pitched as a mere tax-collection tool, but it was always about control.

Surprisingly, the NRA endorsed early drafts, viewing it as a narrow anti-crime measure. The Supreme Court upheld it in United States v. Miller (1939), ruling it targeted arms not “typically possessed by law-abiding citizens for lawful purposes.” But that era’s collective rights theory has since been demolished by District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), affirming individual rights to self-defense arms.

Over decades, the NFA ballooned into a regulatory monster. By the 1960s, amid rising crime fears, it expanded under the Gun Control Act of 1968. Today the registry is far bigger than most people picture. ATF’s own NFRTR figures put the total at 6,957,598 registered NFA items as of 28 February 2026, of which 5,595,651 were silencers — just over 80 percent of everything in the registry — and silencers alone passed 6.6 million by 4 August 2026. Wait times have gone the other way since the tax hit zero; our running tracker of ATF approval times carries the current numbers rather than a figure that goes stale in a month. This evolution reveals the NFA unconstitutional at its core: a perpetual infringement dressed as fiscal policy.

“The NFA was never about revenue—it was a backdoor to disarmament, now laid bare as unconstitutional.” – Legal scholars post-Bruen analysis

Why the NFA is Unconstitutional: Bruen’s Historical Test Exposes Flaws

The Supreme Court’s 2022 New York State Rifle & Pistol Association v. Bruen decision revolutionized Second Amendment jurisprudence, discarding subjective “balancing tests” for a rigorous historical tradition analogue. Gun laws must now echo regulations from 1791 (ratification) or 1868 (14th Amendment)—or they’re toast.

Applying Bruen to the NFA? It’s a mismatch. Suppressors, far from criminal tools, safeguard hearing for 40 million annual hunters and range users. SBRs provide compact home defense, akin to colonial pistols. No Founding-era evidence exists for taxing or registering such “bearable arms”—a fatal flaw rendering the NFA unconstitutional.

Pre-Bruen challenges faltered under intermediate scrutiny, but post-Bruen, courts have invalidated “may-issue” licensing and magazine bans in over 1,000 rulings. Legal experts predict the NFA’s demise: “It will likely not survive” this standard, as one Missouri Law Review article asserts, lacking any 18th-century tax on self-defense tools.

Compounding this, OBBBA (signed July 4, 2025) eliminated the $200 tax on suppressors, SBRs, SBSs, and any other weapons (AOWs), effective January 1, 2026. Without its taxing power pretext (Article I, Section 8), the registration regime is a naked Second Amendment assault. As FPC President Brandon Combs warns: “The illusion of legitimacy is shattered—control, not safety, was always the game.”

• No Historical Precedent: Bruen requires analogues; colonial laws taxed imports, not personal arms.
• Tax Facade Crumbles: OBBBA strips the revenue cover, exposing pure regulation.
• Individual Rights Ignored: Post-Heller, the NFA’s collective focus is obsolete.
• Broad Infringement: Delays and fees turn presumptive rights into privileges.

Inside the NFA Lawsuit: How Jensen v. ATF Was Argued and Won

The floodgates opened November 12, 2025, when Jensen v. ATF plaintiffs—Firearms Policy Coalition (FPC), Citizens Committee for the Right to Keep and Bear Arms (CCRKBA), Texas State Rifle Association (TSRA), and individuals like John Jensen—filed for summary judgment in U.S. District Court, Northern District of Texas (Amarillo Division). Attorneys from Cooper & Kirk and Cooper & Scully demand permanent injunctions against NFA enforcement on tax-free items.

CCRKBA Chairman Alan Gottlieb: “The time has come to eliminate these previously-taxed items from NFA regulation—their unconstitutionality is plain under Bruen.” This joins a barrage: Second Amendment Foundation (SAF) filed its motion the same day; NRA launched a parallel suit October 9, 2025; and Gun Owners of America (GOA) pressed summary judgment by November 6.

These cases argue the NFA exceeds Congress’s enumerated powers, violating both taxing authority and the Second Amendment. Separately, ATF has proposed easing the paperwork itself. Removing CLEO Notification Under the National Firearms Act (RIN 1140-AA65) would drop the requirement to notify your chief law enforcement officer. It was published 6 May 2026, its comment period closed 6 July 2026 after 282 comments, and it is still a proposal, not a final rule. Do not plan around it yet.

For everyday Americans, the NFA unconstitutional burden means felony risks for DIY builds or family heirlooms. Hunters lose hearing protection; defenders face cumbersome long guns. Victory here restores normalcy.

Roadmap to Expose and End NFA Unconstitutionality: Timeline and Tactics

This section was written before the case was decided. Here is where the fight actually stands, updated 21 September 2026:

1. District court — decided. On 5 August 2026, Judge James Wesley Hendrix (N.D. Tex.) granted summary judgment in Silencer Shop Foundation v. ATF, consolidated with Jensen v. ATF, holding that the NFA’s registration provisions cannot stand on the taxing power once the tax is zero. He entered a permanent injunction and paused it seven days. Nobody froze it, and it has been in force since 13 August 2026.
2. Appeal — still not filed. As of 21 September 2026 the docket shows no notice of appeal, no motion to stay and no Fifth Circuit docket for the case. The government’s 60-day window closes in early October. Everything below this line depends on whether it files.
3. Supreme Court — nothing pending. Certiorari only becomes a live question if the government appeals and the circuits end up split. There is no case on the Court’s docket today.
4. Legislative. Congress already did the decisive part: the One Big Beautiful Bill Act set the making and transfer tax to $0 effective 1 January 2026, and that is what knocked the foundation out from under the registry. Rep. Eric Burlison’s NFA Repeal Act (H.R. 335) would strike what is left of it. It has not passed.
5. Parallel suits still matter. The August injunction is not nationwide. It protects the plaintiffs, their members and the customers of the business plaintiffs, and nobody else. Another case is what widens it.

Beyond the courtroom the picture is messier than the cheering suggests, and it is worth getting right. Only two amicus briefs were filed in this case, and both argued against the gun owners — one from the cities of Baltimore and Columbus together with Harris County, Texas, and one from the Brady Center, Everytown and Giffords. Texas is in the case, but as a plaintiff: it is one of fifteen states that joined, with Alaska, Georgia, Idaho, Indiana, Kansas, Louisiana, Montana, North Dakota, Oklahoma, South Carolina, South Dakota, Utah, West Virginia and Wyoming. Florida is not a party. And on 11 September 2026, Kansas — one of the winning plaintiffs — filed a motion asking the court to clarify what its own judgment covers, with a letter from state attorneys general attached. When the states that won are asking that question, do not assume you already know the answer.

Your Role in the Fight: Comment on the ATF rulemaking that is actually open. The proposed rule on Fingerprint and Photograph Requirements for Firearms Applications (RIN 1140-AA63) was published 6 July 2026 and comments close 5 October 2026, at regulations.gov. Join FPC’s Grassroots Army at JoinFPC.org. Donate to SAF/CCRKBA legal funds. Share this deep dive—amplify the call to bury the NFA unconstitutional relic once and for all.

Broader Implications of Declaring the NFA Unconstitutional: Reshaping Gun Rights

Dismantling the NFA unconstitutional framework isn’t just about paperwork—it’s a Second Amendment renaissance. Suppressors could drop to $200 from $900+; SBR builds become weekend projects, not federal ordeals. For a current state-by-state guide on what’s legal with suppressors in 2026, Guns & Gear Daily covers the full regulatory landscape. Law enforcement gains quieter tools; civilians, safer ranges.

Yet risks loom: If courts balk, Congress must act—or face electoral backlash. Post-Bruen, 20+ states have eased carry laws; NFA repeal could inspire national reciprocity. As one Fordham scholar notes, “Bruen’s history lens demands we confront gun laws’ evolution—or scrap the unfit.”