ATF’s October 9 open letter announces nationwide non-enforcement of NFA approval and registration requirements for suppressors, short-barreled rifles (SBRs), short-barreled shotguns (SBSs), and “any other weapons” (AOWs).
While this offers immediate relief from paperwork and approval delays and is a major victory from a gun-rights perspective, it is far less certain from a legal perspective. There are many questions that Virginia gun owners and dealers should resolve before changing their practices.
To summarize my conclusions for those who don’t have time to read my entire analysis, for most clients, I still recommend an approved Form 1 or Form 4. The reasons include Virginia laws that require ‘compliance with federal law’, potential future moves to states that require NFRTR registration, potential future return to enforcement rendering items contraband subject to seizure, future prosecution, FFL licensing issues, transfers, and estate planning.
What has changed—and what has not
Effective January 1, 2026, Congress reduced the making and transfer taxes to $0 for these categories of NFA items. This was via law and not simply agency non-enforcement as is the case with the new update. Specifically, Section 70436 of Public Law 119-21 amended 26 U.S.C. § 5811 and § 5821, but did not repeal the registration statutes. Machineguns and destructive devices remained subject to the $200 taxes and full NFA requirements.
In Silencer Shop Foundation v. ATF, No. 6:25-CV-056-H (N.D. Tex. Aug. 5, 2026), a federal district court held that the challenged requirements for zero-tax firearms could no longer rest on Congress’s taxing power. It rejected the government’s alternative Commerce Clause justification without deciding the Second Amendment claims. The injunction protects specified plaintiffs, persons, and transactions; it is not universal relief.
ATF has now extended nonenforcement nationwide through enforcement discretion. Under the letter and accompanying FAQs, it will no longer require prior NFA making or transfer approval, registration, manufacturers’ registration notices, or NFA markings for covered firearms. The policy also covers related unregistered-firearm offenses and interstate transportation under § 5861(j). ATF retains enforcement of the altered-serial-number and unlawful-importation provisions in § 5861(h) and (k).
Voluntary Forms 1, 2, 3, and 4 (and one assumes Form 5, but it is not mentioned) remain available. The making or transfer tax for a covered item is $0 whether the owner chooses registration or relies on the non-enforcement policy. Business occupational taxes, Gun Control Act (GCA) requirements, and state restrictions remain separate obligations and are not affected by the announced change.
Reasons to be concerned
1. An enforcement policy is different from a change in the law
The published statutory framework, which is still valid law, requires:
- Application and approval before transfer under 26 U.S.C. § 5812.
- Application and approval before making under § 5822.
- Registration in the National Firearms Registration and Transfer Record (NFRTR) under § 5841, with associated criminal provisions in § 5861.
The ordinary procedures also remain in 27 C.F.R. Part 479, including §§ 479.62–479.71, 479.84–479.86, and 479.101. Sections 5812 and 5822 do not expressly make approval disappear whenever the tax rate becomes zero. The non-enforcement letter does not amend those provisions.
That does not mean that every requirement remains constitutionally enforceable. The Texas court held otherwise for the challenged provisions. The distinction is between a statutory command, its constitutional validity, the scope of judicial relief, and an agency’s decision not to enforce it.
Heckler v. Chaney, 470 U.S. 821 (1985), recognizes substantial enforcement discretion. It does not authorize agencies to repeal statutes. Under Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), federal courts independently decide statutory meaning; ATF’s position does not dictate their conclusions.
Virginia also lies within the Fourth Circuit. In United States v. Jones, 976 F.2d 176, 183–84 (4th Cir. 1992), that court upheld NFA requirements involving machineguns, discussing tax-related functions and commerce authority. Jones predates the zero-tax amendment and concerns different circumstances. It does not automatically decide today’s issue, but the Fourth Circuit has never met a gun control bill that it would not bend over backwards to uphold.
2. Virginia’s SBR and SBS exception requires federal compliance
Virginia’s Sawed-Off Shotgun and Sawed-Off Rifle Act creates an immediate concern. Section 18.2-300 makes possession or use is a Class 4 felony unless an exception applies. Section 18.2-306 also authorizes seizure and judicial confiscation under specified circumstances.
The principal civilian exception, § 18.2-303.1, protects a covered firearm “possessed in compliance with federal law.” The question is what federal compliance means when ATF declines to enforce requirements still appearing in federal law, especially given that Virginia’s current administration has expressed extreme disdain for law-abiding gun owners and has gone to extraordinary lengths to create a legal environment in which those owners risk criminal prosecution for even the most technical violations.
The prosecutor’s argument I would expect to hear in such a case: Nonenforcement does not establish compliance with an existing, and still valid, law. The nationwide announcement expressly rests on discretion. Whether a person or transaction falls within the Silencer Shop injunction also requires separate examination.
ATF itself says it cannot determine whether unregistered possession under its policy satisfies state-law exceptions. My assessment is that the letter alone does not conclusively establish Virginia’s exception for an unregistered SBR or SBS.
A Virginia prosecutor or court is not automatically bound by ATF’s view. Miller v. Commonwealth, 25 Va. App. 727, 492 S.E.2d 482 (1997), illustrates the limits of reliance on federal advice: In that case, the court found that ATF lacked authority to define the defendant’s Virginia-law obligations.
Dealers also face § 18.2-304, which requires a registry of covered rifles and shotguns containing specified identifying and transaction information. It provides inspection duties and Class 3 misdemeanor penalties. A federal acquisition-and-disposition record may omit required Virginia fields. The former §§ 18.2-301 and 18.2-305 are repealed; that does not erase the dealer registry or resolve the possession exception.
In summary, I would not treat the federal-compliance possession exception as permission to abandon obligations under Virginia law. Especially given that the FAIR unit is newly formed and salivating over the chance to ruin dealer’s livelihoods. I can almost guarantee that if any NFA item transferred on a Form 4473 rather than through the traditional NFA process is subsequently used in any type of criminal offense, the dealer who sold it will find themselves squarely in the crosshairs of HB 21 and the newly created FAIR enforcement unit. In my view, the Democrats established this unit specifically to target and weaken Virginia’s firearms industry, and I have little doubt they will seize upon such a case as an opportunity to pursue the dealer, even if the original transaction had nothing to do with the subsequent criminal conduct.
3. SBR and SBS have Federal Gun Control Act Requirements
SBR and SBS purchases have an additional federal issue: § 922(b)(4) independently requires specific federal authorization. 27 C.F.R. § 478.98 ordinarily uses an approved Form 1 or Form 4 but when not using such, ATF acknowledges that no alternative regulatory mechanism exists and will decline enforcement while preparing one. This is yet another active law that dealers will have to violate if taking advantage of the non-enforcement policy.
Meanwhile, § 922(b)(2) continues to prohibit dealer transfers contrary to applicable state or local law. A questionable Virginia transfer can therefore create federal exposure despite relaxed NFA enforcement. Federal licensing consequences depend on the applicable requirements, including willfulness under § 923(e). While the current ATF administration is taking a non-enforcement approach, I think we all have a pretty good idea of what may happen in the midterms and the next presidential election. Political administrations change, and enforcement priorities can change with them. Dealers and purchasers would be wise not to put themselves in a position where they are violating existing federal law and relying solely on the current administration’s willingness to look the other way.
4. Interstate transport still requires care
For an ordinary unlicensed owner, § 922(a)(4) and § 478.28 still require advance approval for interstate SBR or SBS transportation through Form 5320.20, commonly called Form 20. This applies even to an unregistered firearm and includes permanent moves.
However, federal approval cannot override a state prohibition, and § 926A should not be treated as guaranteed protection for every unregistered NFA journey. Many states require NFA items to be registered in the NFRTR to be legal in that state.
5. Later registration is not assured
ATF’s FAQs itself specifically warns that federal law supplies neither automatic grandfathering nor a general later-registration opportunity. They also state that an item removed from the registry cannot be re-registered absent an Attorney General amnesty. Such relief is discretionary.
The standing rule in 27 C.F.R. § 479.101 does not provide a general cure for an already unlawfully possessed firearm. If a future administration abandons the current policy of non-enforcement before there is a final, controlling judicial ruling on the constitutionality of these requirements, all affected unregistered NFA firearms could potentially become contraband subject to seizure and forfeiture.
6. Transfers and estates benefit from an established process
Registered firearms have familiar routes for sales, gifts, trust transfers, and succession. The NFA transfer definition in § 5845(j) includes gifts and loans. A properly administered trust can provide ownership continuity and authorized shared possession, subject to federal and state law.
For firearms registered to a deceased individual, 27 C.F.R. § 479.90a provides an established executor-and-beneficiary process, including approved Form 5 transfers. An unregistered firearm lacks that same conventional route. Current nonenforcement may cover an estate distribution, but it does not guarantee later Form 5 registration if the non-enforcement policy ends. An heir could inherit an NFA firearm collection purchased under the non-enforcement policy, only to discover that a subsequent change in enforcement policy has made continued possession unlawful, potentially forcing the heir to surrender their inheritance.
My practical recommendations
Prospective purchasers and makers:
The reasoning in my earlier article, Why I Still Recommend a Form 4 for Most Suppressor Buyers — For Now, remains valid. Registration can preserve many options that a 4473 simply does not.
FFL dealers:
Carefully review the requirements discussed above concerning Virginia’s SBR and SBS dealer registry and the applicable federal Gun Control Act (GCA) provisions. If you choose to sell these firearms without following the traditional Form 4 process, remember that ATF’s current policy is one of non-enforcement, not repeal. The underlying statutes remain in effect, and a future administration could revisit these transactions from either a criminal enforcement or federal licensing perspective.
You should also keep Virginia’s newly created FAIR Unit, established to pursue violations of HB 21, firmly in mind when making these decisions. Given the current political environment and the increased scrutiny of firearms dealers, I would be extremely cautious about adopting business practices that depend entirely on the continued exercise of federal enforcement discretion.
In Summary
Privacy and avoiding approval delays are legitimate considerations. However, they should be weighed against future restrictions and policy changes. Resumed enforcement could raise due-process and reliance defenses, but those defenses do not guarantee continuing possession or automatic registration. Potential felony penalties and forfeiture remain part of the statutory framework under § 5871 and § 5872.
I certainly welcome reduced burdens for lawful owners and am happy to see the ATF taking a pro-citizen stance. Nonetheless, my advice remains to use the voluntary Form 1 and Form 4 process until the court make a final ruling on the constitutionality issues raised in the Silencer Shop case. The fastest purchase today may limit the choices available to you and your family tomorrow.
This article addresses authorities and guidance available on October 9, 2026. It provides general legal information; particular firearms, transactions, injunction coverage, and state-law exceptions require individual review.
