While the Supreme Court turned away a challenge to Maine's 72-hour waiting period today, it did grant cert to a case that could have major implications for our right to keep and bear arms.
On the surface, United States v. McNutt has no relationship to the Second Amendment. The DOJ is appealing a Fifth Circuit Court of Appeals decision that found a ban on home distilleries to exceed Congress's enumerated powers. It's the powers in question that make this case relevant to the right to keep and bear arms; specifically, the enumerated power to lay and collect taxes.
That same power was the driving issue in the Jensen and Silencer Shop cases, where U.S. District Judge James Wesley Hendrix determined that the required registration of many National Firearms Act items was null and void since Congress had zeroed out the making and transfer taxes on suppressors, short-barreled firearms, and "Any Other Weapons." Without the taxes, Congress had no authority to impose a registry of who had paid them.
The DOJ declined to appeal that decision, and recently enacted a policy that removes the registration requirements for all purchasers, not just those plaintiffs and customers covered by Hendrix's injunction. Though Jensen and Silencer Shop are no longer actively being litigated, Second Amendment Foundation Director of Legal Research and Education Kostas Moros says that the Supreme Court's decision in McNutt is likely going to have a direct impact on the future of the DOJ's policy.
While we'll need to see the scope and logic of the ruling, the basic nutshell is- McNutt reversed: our NFA win is probably in very deep trouble, or effectively dead. In that scenario, even if the Trump Admin does not resume enforcement, next Dem Admin 100% can on day 1. McNutt affirmed: probably locks in our NFA taxing power win. Only way registration resumes then is if tax is reimposed in the future. Not sure if there is any room for a John Roberts baby splitting special here, if there is that's the wild card scenario.
— Kostas Moros (@MorosKostas) October 19, 2026
So why could McNutt be of great importance?
Federal law imposes taxes on distilled spirits, but it also prohibits Americans from operating a distillery in their own homes, even if they're willing to pay those taxes. The federal government argues that the prohibition is a legitimate exercise of Congress's taxing power, since allowing home distilleries could make it more difficult to collect the taxes imposed on distilled spirits.
The Fifth Circuit wasn't buying it.
In April, the appellate court concluded that Congress can't use its power to tax as a justification for prohibiting conduct simply because the government also imposes a tax on that activity. Under the Necessary and Proper Clause, there has to be a meaningful connection between the regulation and the collection of revenue.
In other words, Congress can't simply slap a tax on something and then claim virtually unlimited authority to regulate or prohibit it.
When Congress adopted the NFA in 1934, it relied on its constitutional authority to levy taxes, rather than asserting a general power to regulate firearms. The NFA imposed a $200 tax on the making and transfer of certain firearms, while also requiring registration and government approval for those transactions. The registration and approval requirements were justified as mechanisms to help collect the tax.
But when Congress reduced the making and transfer taxes on suppressors, short-barreled rifles, short-barreled shotguns, and AOWs to zero, that raised an obvious question: if there's no tax to collect, what constitutional authority does Congress have to continue requiring registration and approval?
That question was at the heart of Jensen v. ATF and Silencer Shop Foundation v. ATF, the lawsuits challenging the NFA's remaining regulatory requirements. Judge Hendrix concluded that the federal government could no longer justify those requirements under Congress's taxing power.
The Justice Department argued that the NFA still imposes special occupational taxes on firearms manufacturers and dealers, and that the registration requirements remain useful in administering those taxes. Hendrix rejected that argument, finding that the relationship between those taxes and the registration requirements imposed on ordinary gun owners was too tenuous to pass constitutional muster. Importantly, Hendrix relied in part on the Fifth Circuit's reasoning in McNutt to reach his conclusion.
So, if the justices reverse McNutt and adopt a broader interpretation of Congress's authority under the Taxing and Necessary and Proper Clauses, they could undermine the constitutional foundation of Hendrix's decision.
That wouldn't automatically overturn the injunction Hendrix issued, particularly since the Trump administration chose not to appeal his ruling. But it could give a future administration a strong argument for asking the courts to dissolve that injunction and allow enforcement of the NFA's registration requirements to resume.
As we've noted here before, the injunction could also be dissolved if Congress restores the making and transfer taxes, even if they only imposed a nominal tax of a dollar or less. That would still require congressional action, though, while overturning McNutt could allow for a future administration to go after the injunction without the legislative branch doing a thing.
So is Hendrix's decision doomed if SCOTUS reverses McNutt? I think there's some wiggle room, even without John Roberts splitting the baby.
In McNutt, the government is defending a prohibition connected to a tax that Congress still collects. In the NFA litigation, the government was defending registration and approval requirements connected to making and transfer taxes that Congress deliberately eliminated.
Those are two slightly different issues, and the Supreme Court could conclude that prohibiting home distilleries is a legitimate way to protect federal excise tax revenue while issuing a relatively narrow decision that leaves the broader constitutional questions unresolved.
On the other hand, if the Court affirms the Fifth Circuit's decision in McNutt, that could substantially strengthen Hendrix's reasoning and make it much harder for a future administration to revive the NFA's registration requirements.
An affirmance wouldn't necessarily settle every question, including whether Congress could justify those requirements under its Commerce Clause authority. But it would provide Supreme Court precedent that supports the argument that Congress can't use its taxing power as a backdoor justification for regulations that have little or nothing to do with collecting revenue.
That, in a nutshell, is why a case that has nothing to do with guns at all could still have potentially huge consequences for gun owners. The fate of the NFA's registration requirements could turn on whether the federal government has the constitutional authority to keep Americans from making a little moonshine in their own homes.
