Week in Review: NFA Limbo and a NICS Warning for FFLs

By Fred Thompson • Published September 21, 2026

The short version

Five days, three federal moves, one Senate hearing - and not one of them left a dealer with a clear next step. That is the theme of this week's digest, and it matters more than any single headline: the regulation of your counter is moving faster than the guidance that tells you how to apply it.

1. The NFA appeal that isn't coming

On August 5, U.S. District Judge James Wesley Hendrix of the Northern District of Texas ruled in Silencer Shop Foundation v. ATF, consolidated with Jensen v. ATF, that the National Firearms Act's registration regime cannot stand as applied to suppressors, short-barreled rifles, short-barreled shotguns and AOWs. The logic is narrow and clean: the NFA is a tax law upheld under Congress's taxing power, last year's One Big Beautiful Bill Act zeroed the $200 tax on those items, and a tax that raises nothing cannot support the paperwork, fingerprinting and engraving machinery built to collect it. Hendrix gave the government a week to seek a stay. The government let the week pass, and the injunction took effect the morning of August 13.

Then came the part dealers were waiting on. CBS News reported on September 17 that President Trump personally ordered the Justice Department not to appeal, and that DOJ intends to tell Congress it will not. A DOJ spokesperson said ATF "will issue guidance soon to implement the court's order." No notice of appeal has been filed, and the formal deadline is October 5.

What this does not mean. It is not a nationwide repeal of the NFA, and it is not a green light at your counter.

The injunction covers the plaintiffs and, where applicable, their current and future members and customers - organizations including Gun Owners of America, the Gun Owners Foundation, Silencer Shop Foundation, SilencerCo, Palmetto State Armory, B&T USA and the Firearms Regulatory Accountability Coalition. If your buyer is not covered by one of those groups, the old registration path still applies to that transaction.
Machine guns and explosive devices are untouched.
Anyone prohibited from buying a firearm is still prohibited. The White House made that point explicitly.
ATF's guidance is promised, not published. Until it exists, every answer you have is an inference.

What to do: treat this as a documentation problem, not a sales-momentum problem. Before you change a single step of your NFA workflow, get written confirmation from the buyer about which organization covers them, keep that confirmation in the file, and run the transaction past counsel who can price the risk if the injunction is later stayed, modified or dissolved. A transfer that looks legal today and turns out not to be is a license problem, not a customer-service problem. And if your shop already handles NFA transfers, keep that capability trained and staffed: the demand did not go anywhere, and the registration burden is the part a court just struck. When ATF guidance lands, the shops ready to execute on day one will take the volume.

2. Interstate handguns: a circuit split, not a switch

On September 18, a divided Fifth Circuit panel held in Elite Precision Customs v. ATF that three provisions - 18 U.S.C. sections 922(a)(3), (a)(5) and (b)(3) - operate together to bar direct interstate handgun sales in a way the Second Amendment does not allow. Judges Jerry E. Smith and Kurt D. Engelhardt formed the majority; Judge Catharina Haynes dissented. The panel reversed and rendered judgment for the plaintiffs rather than sending the case back to the district court. The federal government has until November 2 to seek panel rehearing or en banc review.

Two things keep this from being a policy change you can act on today. First, the Second Circuit held the opposite in United States v. Vereen, so the answer depends on which circuit you stand in - and the Fifth Circuit's holding reaches Texas, Louisiana and Mississippi. Second, the rule that actually governs a 4473 has not changed: an out-of-state handgun buyer's transfer still routes through an FFL in the buyer's state of residence until ATF says otherwise.

What to do: do not counter-sell handguns to out-of-state customers this week. If you operate inside the Fifth Circuit and want to move first, put the question to counsel in writing and get an answer that covers the transactions you actually run - not the ones a headline describes.

3. NICS monitoring: assume the check runs both ways

At the Senate Judiciary Committee's September 15 oversight hearing, FBI Director Kash Patel confirmed what Gun Owners of America first surfaced through a FOIA fight: ATF can ask the FBI to monitor a specific person's future NICS activity - daily checks, 30 to 180 days at a time, renewable - for a buyer who is not prohibited. The purchase can still be approved. The buyer is not told. AmmoLand's reporting frames it as the FBI using Brady Act machinery to violate the Brady Act, which authorizes the system to answer one question for a licensee: is this buyer prohibited from receiving a firearm?

Whatever you think of the program, it changes what a clean 4473 file is worth. If the government is watching repeat customers at the system level, your records are the record. Every line, every initial, every delay you hand to a customer without comment. Train staff not to speculate out loud about why a check came back delayed or denied - the dealer's job is to run the check, not to explain the result. And have a written policy for what you do when an inspector or agent asks about a customer. "I'll need to speak with my attorney" is a complete sentence.

4. On the radar

Three dates and one case belong on the wall behind your counter:

October 5 - the NFA appeal deadline. Until it passes, "no appeal" is a reported intention, not a docket entry.
November 2 - the government's deadline to seek rehearing in the interstate handgun case.
This fall - the Supreme Court hears one hour of argument in Viramontes v. Cook County, consolidated with the challenge to Connecticut's ban, on whether the Second Amendment protects possession of AR-15-style rifles. It is the first time the Court will weigh a ban on an entire class of firearms, and amicus briefs are already landing.

Add the state layer. DOJ sued the District of Columbia on September 15 over its semiautomatic ban, and has given Minnesota until September 23 to negotiate over its permit-to-purchase rules and 30-day waits. The dealers who get burned on interstate business are rarely the ones who missed the news. They are the ones who assumed the news applied to them the way it reads on a front page. Build a state-by-state matrix - magazine limits, feature bans, waiting periods, transfer rules - and update it monthly.

The takeaway

The pattern this week is less enforcement and more ambiguity: real wins, narrow scope, guidance pending, deadlines still open. That is a good environment for dealers who run on written procedure, and a bad one for dealers who run on headlines. Do not reprice your inventory, retrain your staff or rewrite your intake script until the paperwork says you can. When it does, you will want to be the shop in your market that already knows how to execute.

- Fred Thompson, [email protected]