DOJ Argues Tax Is Only a ‘Modest Burden’ on Second Amendment Rights

Journalist Cam Edwards says the Department of Justice has told the Fifth Circuit, again, that while suppressors are protected by the Second Amendment, the $200 tax and federal registration under the National Firearms Act (NFA) are just a “modest burden.”

On Bearing Arms’ Cam & Co, Edwards calls this a revealing window into DOJ’s NFA strategy, especially as courts weigh challenges post-Bruen. 

He walks through the filing, the case behind it, and why the government’s framing could have ripple effects far beyond suppressors.

How DOJ’s Position Shifted – and Where It Landed

Edwards notes DOJ actually changed its tune earlier this year. In March, the government told the Fifth Circuit that suppressors weren’t protected by the Second Amendment. 

After criticism and a rethink, DOJ reversed, conceding suppressors do enjoy some protection.

But that concession came with a catch. According to Edwards, DOJ now argues the tax-and-register regime is constitutionally fine because it merely conditions possession rather than prohibiting it outright.

The filing Edwards highlights comes in Peterson v. ATF, a Fifth Circuit case involving George Peterson, who was convicted for possessing an unregistered suppressor. 

Peterson argues the NFA’s suppressor rules are unconstitutional, at least as applied to him.

A district court denied Peterson’s claim, a three-judge panel of the Fifth Circuit affirmed, and Peterson now seeks en banc review. DOJ filed its brief opposing that request, defending the panel’s ruling and the NFA’s framework. Edwards says this is where DOJ doubled down on “modest burden.”

The “Modest Burden” Theory

Per Edwards, DOJ’s brief asserts the NFA imposes only a modest burden on suppressor possession. The government likens the system to shall-issue licensing, where permission is granted if criteria are met, and argues that such schemes survive Bruen.

Edwards pushes back on that analogy. He says an NFA tax stamp is not a carry license, and the registration of a protected arm is not part of ordinary licensing in most states. The panel embraced the analogy anyway, but Edwards questions whether that comparison actually fits the facts.

Edwards says DOJ often claims there’s no circuit split on the NFA’s constitutionality, so the Supreme Court shouldn’t intervene. That’s technically true, he concedes, but it misses the activists’ point: maybe there should be one.

Peterson cites Coons v. New Jersey in the Third Circuit, where a $50 carry fee for a victim-compensation fund was deemed likely unconstitutional. Edwards notes DOJ distinguishes Coons as a state carry case involving handguns, not federal NFA rules for suppressors. 

Still, he sees the tension: courts scrutinize special fees tied to exercising a right in one context, while DOJ defends a federal tax and registry in another.

“Uniquely Adaptable to Criminal Misuse”

Edwards walks through DOJ’s key line: suppressors are a “useful but non-essential” accessory and “uniquely adaptable to criminal misuse.” Because of that, DOJ says, greater regulation is justified without violating the Second Amendment.

That logic troubles Edwards. If government can tier protections for “non-essential” arms or accessories, what keeps lawmakers from treating other commonly owned items – say, standard magazines or semi-automatic rifles – as less protected and ripe for taxes and registries?

Edwards adds important historical context: a $200 tax in 1934 was massiveeffectively pricing out ordinary Americans. Some modern gun-control voices want to raise the stamp fee to the thousands, he notes, which exposes the “modest” label as elastic.

And even when the tax is paid, Edwards says the shutdown proved the system can grind to a halt. With NFA examiners furloughed, applications weren’t processed. 

If suppressors are protected arms, he asks, how can government inaction freeze access with no constitutional consequence?

The Analogy Problem

Here’s my take. Edwards is right that the licensing analogy is doing a lot of work it cannot bear. A carry permit vets people to carry their own arms in public; the NFA imposes a tax and a federal registry on a specific arm (or arm component) the government admits is protected.

Those are different animals. Treating a federal gun registry like a mundane “conditions-based” system risks normalizing registries for other arms. Once that door is cracked, arguments about “non-essential” gear could push it wider.

I also think Edwards is right to worry about tiered protection. The Supreme Court’s modern cases – Heller, McDonald, Caetano, Bruen – don’t carve up protected arms into “really protected” and “less protected.” 

They ask whether items are bearable arms in common use for lawful purposes.

If suppressors meet that test, and DOJ now concedes protection, calling them “non-essential” becomes a policy judgment, not a constitutional one. Courts should be wary of replacing the text-and-history inquiry with essential vs. non-essential balancing dressed up as modest regulation.

DOJ’s Rebuttal to the Slippery Slope

Edwards notes DOJ tries to wall off handguns, saying taxes and registries for ordinary firearms would trigger a different analysis and be a “more severe burden.” But the brief, he says, doesn’t explain the principled limit.

If “uniquely adaptable to criminal misuse” justifies special burdens, then handguns, most frequently used in crime, would logically qualify. 

The government insists they don’t, but Edwards doesn’t see a doctrinal reason that holds up under Bruen’s history-and-tradition test.

Edwards gives DOJ credit for acknowledging suppressors are protected. But he argues that protection is meaningless if the government can tax, register, and pause access whenever it chooses. Rights aren’t “protected in name only,” he says, and shutdowns shouldn’t switch them off.

He warns the government’s “modest burden” framework could be used by anti-gun jurisdictions to press new taxes and registrations on other arms and accessories—precisely what Heller and Bruen sought to rein in.

Edwards says en banc review is the next fork in the road for Peterson. If the Fifth Circuit takes the case, expect a deeper dive into whether the NFA’s tax-and-registry scheme matches historical analogues under Bruen.

Regardless, he’ll keep tracking the filings – and promises more discussion with suppressor advocates about whether “modest burden” is a constitutional label or just rebranding for restrictions the Second Amendment does not permit.

To learn more, check out the Bearing Arms Cam & Co video here.

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