Attorney General Pam Bondi has a big problem. On November 20, the Department of Justice filed a cross-motion for summary judgment in the U.S. District Court for the Northern District of Texas on Novermber 20. The case is Silencer Shop Foundation v. ATF. It challenges the continuance of registration requirements for short-barreled rifles, short-barreled shotguns, suppressors, and AOWs now they are no longer subject to National Firearms Act making and transfer taxes.

The problem is the DOJ’s 46-page motion defends the continuance of registration requirements, saying they are supported by other federal legislative powers.

This set off a firestorm in the pro-2A community. The credibility of the self-styled most pro-2A DOJ in history took another major hit and criticism of Bondi ramped up to new heights. It didn’t help when Everytown, Giffords, and Brady filed briefs supporting the DOJ.

On December 18, U.S. Representative Andrew Clyde (R-GA-9) sent a letter to AG Bondi. It was co-signed by 35 other members of the House and six Senators (including Texas’ John Cornyn).

Apparently, Bondi had failed to respond to an earlier letter, so Clyde’s most recent missive was a bit more forceful. Clyde asked Bondi if she and the DOJ actually intended to ignore Congress’ intent when it zeroed out the making and transfer taxes on SBRs, etc.

As the Attorney General, Pam Bondi’s first and foremost responsibility is enforcing and defending federal statutes. This includes laws with which she might not agree. In addition, the realities of litigation often restrict what can be said.

However, completely stonewalling her own party in Congress is a really bad idea. If the House wanted to play serious hardball, it could issue a subpoena and compel Bondi to respond to the questions she has been dodging. The politics involved make this a very remote possibility, but it does exist.

I’m neither in the Pam Bondi fan club nor the mob calling for her head. But, at the moment, the most important player is Donald Trump. The President has the authority to demand a full briefing and to make the final decision. As of the day I’m writing this, I am not aware of any recent come-to-Jesus meetings in the Oval Office, so I have to assume Bondi still has the President’s backing.

Stripped to its basics, the DOJ’s defense is based on three of Congress’ Enumerated Powers. Article 1, Section 8 of the U.S. Constitution defines those powers in 18 Clauses. Three are being challenged: Clause 1 covers Congress’ taxing powers; Clause 3 is the Commerce Clause; and Clause 18 is the Necessary and Proper Clause, which authorizes Congress to enact any laws needed for carrying out the Enumerated Powers.

No one is challenging Congress’ taxing powers. But the DOJ is arguing requiring registration of short-barreled rifles, short-barreled shotguns, suppressors, and AOWs is still legal because the NFA still produces some revenue from other taxes including the Special Occupation Tax (SOT). However, those taxes have nothing to do with the making and transfer taxes zeroed out in the One Big Beautiful Bill. Since this specific tax no longer produces revenue, there can be no justification for continuing to require special registration of short-barreled rifles, short-barreled shotguns, suppresors, or AOWs.

Make no mistake: The National Firearms Act is a revenue measure. Since Sonzinsky v. United States, 88 years ago, the NFA has never been judicially affirmed as anything other than a tax.

Here’s what the Supreme Court said back in March 1937:

“The case is not one where the statute contains regulatory provisions related to a purported tax in such a way as has enabled this Court to say in other cases that the latter is a penalty resorted to as a means of enforcing the regulations. Nor is the subject of the tax described or treated as criminal by the taxing statute. Here, § 2 contains no regulation other than the mere registration provisions, which are obviously supportable as in aid of a revenue purpose. On its face, it is only a taxing measure, and we are asked to say that the tax, by virtue of its deterrent effect on the activities taxed, operates as a regulation which is beyond the congressional power.

“Every tax is in some measure regulatory. To some extent, it interposes an economic impediment to the activity taxed, as compared with others not taxed. But a tax is not any the less a tax because it has a regulatory effect, and it has long been established that an Act of Congress which, on its face, purports to be an exercise of the taxing power is not any the less so because the tax is burdensome or tends to restrict or suppress the thing taxed.”

Next, Bondi & Co. appeal to Congress’ broad powers under the Commerce Clause.

Since the Supreme Court’s ruling in Wickard v. Filburn, Congress’ Commerce Clause powers have virtually exploded. Nearly anything is covered, including not only firearms that are moving in interstate commerce, but those that have moved in interstate commerce, which is virtually all of them..

Congress established itself as the sole authority to regulate interstate commerce in firearms with the Federal Firearms Act of 1938. The DOJ contends this covers the registration requirements. Once again, Bondi’s Brigade missed the point. With the removal of the tax, short-barreled rifles, short-barreled shotguns, suppressors, and AOWs are now considered to be the same as any other ccommon firearm and can be sold by any licensed retailer. No SOT required.

As Rep. Clyde pointed out in his letter, this tactic has one huge drawback: It’s illegal.

Without the tax-compliance justification, the National Firearms Registration and Transfer Record becomes just a federal gun registry. Creation of any federal registry of guns or gun owners has been prohibited by law since 1986.

Dismissing the Necessary and Proper Clause is easy: It doesn’t come into play.

This is a gross oversimplification of a rather lengthy document, but it does address the most fundamental issues — except for one: Is this really the hill Pam Bondi wants to die on?

About Bill Cawthon

Bill Cawthon first became a gun owner 55 years ago. He has been an active advocate for Americans’ civil liberties for more than a decade. He is the information director for the Second Amendment Society of Texas.