Is the DOJ Playing Both Sides on the Second Amendment? Experts Say Yes

Gun-rights attorneys and commentators say the Department of Justice is talking out of both sides of its mouth on the Second Amendment. Attorney William Kirk of Washington Gun Law calls the past few weeks “a roller coaster,” arguing that every pro-2A gesture from DOJ is followed by a move that undercuts it. 

Jared Yanis of Guns & Gadgets goes further, accusing DOJ of “gaslighting” gun owners by claiming to be the “most 2A-friendly DOJ” while aggressively defending century-old restrictions under the National Firearms Act (NFA). In separate videos, both point to the same flashpoint: United States v. Peterson, a Fifth Circuit case challenging the NFA’s suppressor rules.

As Kirk explains, George Peterson was charged under 26 U.S.C. §§ 5841, 5861(d), and 5871 for possessing an unregistered suppressor. The case has already taken twists: a Fifth Circuit panel initially suggested suppressors might not even be protected “arms,” a position DOJ itself pushed back on as “probably not correct,” according to Kirk’s summary. 

But when Peterson asked the full Fifth Circuit for en banc review after losing at the panel stage, DOJ filed an opposition brief urging the court not to rehear the case – effectively telling the court the panel “got it right.”

Kirk boils down DOJ’s stance to this: there’s no conflict with Supreme Court or circuit precedent that justifies an en banc do-over, so let the panel decision stand.

In other words, suppressors can be regulated under the NFA without violating the Second Amendment. DOJ isn’t merely content to let the result ride; it’s actively defending the NFA’s scaffolding in a high-profile circuit. 

To Kirk, that’s the clearest signal yet that the Department will “fight vehemently” to preserve the NFA in court.

The “Weak” Argument: Just Trust the Old Cases

Kirk calls one DOJ thread “immensely weak”: the suggestion that prior decisions upholding the NFA effectively settle the matter even post-Heller and Bruen.

That line, he argues, short-circuits the modern constitutional inquiry – specifically Bruen’s history-and-tradition test – by leaning on a pre-Bruen presumption of constitutionality for licensing laws (he cites the Fifth Circuit’s McRory decision as an example DOJ embraces). 

The critique here is simple: if Bruen changed the test, old conclusions shouldn’t be a shield from new scrutiny.

The second thread Kirk calls “dangerous” is DOJ’s heavy reliance on Bruen’s footnote 9, which says “shall-issue” carry regimes – those with objective, definite criteria – are generally okay.

DOJ analogizes the NFA suppressor process to a shall-issue license: background checks, objective criteria, pay the fee, get approved. 

Kirk warns that if courts bless that analogy, anti-gun states could bolt on “objective” steps, each with a price tag, to convert rights into regulated privileges – exactly the opposite of what Bruen intended.

Kirk also flags what he sees as telling language from DOJ: suppressors are “useful but nonessential” accessories “uniquely adaptable to criminal misuse.” DOJ also suggests that regulations aimed at ordinary handguns would trigger a different, stricter analysis – implying suppressors sit outside the Second Amendment’s “core.” 

His concern is obvious: once the government can label an arm or attachment “nonessential,” it becomes easier to fence it off from constitutional protection – even if millions are lawfully owned. 

The Tax Angle and the “One Big Beautiful Bill”

Yanis highlights a tactical move inside DOJ’s brief: when Peterson argued the $200 NFA tax is an unconstitutional burden, DOJ replied that this is mooting itself – because Congress has already moved to eliminate the tax on suppressors and short-barreled shotguns via the so-called “One Big Beautiful Bill,” with changes keyed to January 1, 2026. 

Yanis’ pushback: if Congress repealed the tax because it was unfair or unnecessary, doesn’t that undercut DOJ’s claim that the burden never mattered?

And even without the tax, the fingerprinting, photographing, registration, and months-long waiting remain. 

Jared Yanis presses a rhetorical question to DOJ: name any other constitutional right that requires fingerprints, photos, paperwork, entry into a registry, a fee, and a months-long wait before you can exercise it. He argues that once the government licenses a right, it’s not a right anymore; it’s a permission slip. 

That point lands particularly hard in the Bruen era, which rejects interest-balancing and focuses on historical analogues. There’s no founding-era tradition of taxing, registering, and delaying ownership of a muffler for your firearm. 

Coons, McRory, and the Battle over Fees

Yanis also notes Peterson’s reliance on Coons v. New Jersey, where a $50 state fee tied to carry permitting was struck down. DOJ says Coons is apples to oranges: a state fee for handgun carry versus a federal scheme for suppressors, rooted in Congress’s taxing power and nearly a century old. 

Coupled with DOJ’s embrace of McRory (upholding stricter checks for 18–20-year-olds as “shall-issue”), the Department paints the NFA as bureaucratic but benign. Both Kirk and Yanis say that framing sidesteps Bruen: longevity and admin formalities don’t answer the history-and-tradition test. 

Yanis warns that if the Fifth Circuit denies en banc review, the panel’s reasoning becomes controlling precedent inside a crucial gun-law circuit – cementing the idea that suppressor regulation is “shall-issue” and outside the Second Amendment’s core.

That would make it harder to challenge the NFA going forward. 

But if the court grants rehearing and reverses, it sets up a possible Supreme Court confrontation that could finally put the NFA under Bruen’s microscope. In Yanis’s view, that is why DOJ is fighting so hard to keep the panel intact.

Kirk’s phrase – “most bipolar DOJ on 2A” – and Yanis’s “gaslighting” charge converge on the same observation: DOJ talks about respecting Bruen while repackaging the NFA as a friendly, objective, shall-issue process. To many gun owners, that’s a bait-and-switch. 

My take: whatever goodwill DOJ earns by conceding that suppressors may be “arms,” it spends – and then some – by calling them nonessential and by inviting courts to treat their regulation like a driver’s license.

That risks turning Bruen’s narrow caveat (footnote 9) into a broad blueprint for licensing anything the government can label an “accessory.”

The Practical Fallout – and a Real Risk

For current and prospective suppressor owners, the message from these filings is clear: DOJ intends to defend the NFA structure – registration, vetting, and delay – whether or not the tax remains. 

Kirk also warns that if courts bless the “objective criteria + fee” model here, states that already push the envelope (he name-checks Illinois, New York, New Jersey, California, Washington) will have a green light to stack more “objective” hurdles (and costs) on other aspects of gun ownership under the guise of being shall-issue.

That risk isn’t theoretical; it’s a playbook. 

On paper, Bruen rejected balancing and demanded historical fit. In practice, DOJ is asking courts to treat the NFA’s suppressor regime as an acceptable administrative filter for “nonessential” add-ons.

Kirk and Yanis read that as playing both sides – soothing rhetoric about rights paired with hard-edged litigation to preserve one of the last major federal gun-control pillars. 

I agree with their core concern: if courts accept that labeling an item “nonessential” moves it outside the Second Amendment’s protection, the definition of “arms” will shrink one accessory at a time. The Fifth Circuit’s next move will tell us whether Bruen has teeth – or just helpful footnotes. 

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