UNITED STATES v. GRISSOM (2026)

ORDER

This cause is before this Court on Defendant's “Amended Motion to Dismiss Superseding Indictment and Memorandum of Law” (Doc. 91) and the United States’ Response in Opposition (Doc. 97). For the following reasons, the Motion will be denied.

I.

The superseding indictment (Doc. 85) alleges that Defendant previously was convicted of crimes punishable by imprisonment for more than one year, including the following eleven offenses, each committed on a distinct occasion: grand theft, burglary, unarmed robbery, criminal mischief, battery on a law enforcement officer, four robberies, robbery/attempt, and robbery by sudden snatching.

Count One charges Defendant with knowing possession of ammunition in and affecting interstate commerce, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Count Two charges Defendant with knowing possession of a short-barreled rifle (“SBR”) not registered to him in the National Firearms Registration and Transfer Record as required by 26 U.S.C. § 5841, in violation of the National Firearms Act (“NFA”); namely, 26 U.S.C. § 5861(d). And Count Three charges Defendant with knowing possession of an SBR that lacks a serial number as required by 26 U.S.C. § 5842, again in violation of the NFA; namely, 26 U.S.C. § 5861(i). The firearm at issue is alleged to be “a privately made .300 blackout caliber rifle having a barrel less than 16 inches in length,” and the ammunition at issue is alleged to be “X-treme .300 Blackout ammunition that was manufactured by Freedom Munitions.” The charged conduct is alleged to have occurred on or about September 28, 2024.

Against Count One, Defendant brings a facial Second Amendment Challenge, as well as facial and as-applied Commerce Clause challenges. (Doc. 91 at 2–3). He further claims that Counts Two and Three must be dismissed “because the [NFA] violates the Second Amendment and because 26 U.S.C. §§ 5861(d) and 5861(i) enforce an impermissible tax on the exercise of a constitutional right.” (Id.).

II.

As Defendant rightly recognizes, binding precedent forecloses his facial Second Amendment claim against Count One. In United States v. Rozier, 598 F.3d 768 (11th Cir. 2010), the Eleventh Circuit rejected a Second Amendment challenge to § 922(g)(1). Defendant argues that Rozier should be reconsidered in light of New York Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022), and United States v. Rahimi, 602 U.S. 680, 144 S.Ct. 1889, 219 L.Ed.2d 351 (2024). Yet, as he acknowledges, the Eleventh Circuit recently reaffirmed Rozier, holding that it survives Bruen and Rahimi. See United States v. Dubois, 139 F.4th 887, 893–94 (11th Cir. 2025).

Rozier and Dubois require this Court to reject Defendant's facial Second Amendment challenge to § 922(g)(1). But it's also worth mentioning that Defendant would face an uphill climb even outside the Eleventh Circuit. While some courts of appeals have shown a post-Bruen openness to as-applied challenges, they nonetheless have observed that our nation's historical tradition of firearm regulation supports the disarmament of dangerous or violent felons.¹ That observation alone dooms a facial challenge. See United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.”).

III.

Defendant also correctly concedes that binding precedent forecloses his claims that § 922(g)(1) exceeds Congress’ power to regulate interstate commerce. See United States v. Wright, 607 F.3d 708, 715–16 (11th Cir. 2010). To be sure, several well-reasoned opinions have persuasively explained that § 922(g)(1) pushes against the limits of Congress’ commerce power by regulating an intrastate, non-economic activity—possession—with little nexus to interstate commerce. See, e.g., United States v. Hembree, 165 F.4th 909, 918–21 (5th Cir. 2026) (Willett, J., concurring); United States v. Seekins, 52 F.4th 988, 988–92 (5th Cir. 2022) (Ho, J., dissenting from denial of reh'g en banc); United States v. Kuban, 94 F.3d 971, 977–78 (5th Cir. 1996) (DeMoss, J., dissenting). Were this Court writing on a blank slate, it would be inclined to agree.

In United States v. Lopez, the Supreme Court distilled its precedent to “identif[y] three broad categories of activity that Congress may regulate under its commerce power.” 514 U.S. 549, 558, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Where Congress seeks to regulate an activity falling within the third category—as it does here—it must confine its regulation to “those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.” Id. at 558–59, 115 S.Ct. 1624 (citations omitted). Lopez thus held that Congress strayed beyond the outer limits of its commerce power when it enacted a ban on simple firearm possession that “contains no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affects interstate commerce.” Id. at 561, 115 S.Ct. 1624. The Court has since reaffirmed Lopez’s “substantial effects” test. See United States v. Morrison, 529 U.S. 598, 607–10, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000).

Section 922(g)(1)’s jurisdictional hook appears not to meet the Lopez bar. The statute makes it a crime for certain persons to “possess in or affecting commerce, any firearm or ammunition.” 18 U.S.C. § 922(g)(1) (emphasis added). The statute requires as an element that a given possession must affect “commerce,” but it does not require the Government to prove that the possession affects interstate commerce.² Rather, the Government satisfies the jurisdictional element simply by proving “the minimal nexus that the firearm have been, at some time, in interstate commerce.” Scarborough v. United States, 431 U.S. 563, 575, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977).

The Eleventh Circuit repeatedly has relied on Scarborough to uphold § 922(g)(1) against Commerce Clause challenges. See Wright, 607 F.3d at 715; United States v. Pritchett, 327 F.3d 1183, 1185 (11th Cir. 2003); United States v. Nichols, 124 F.3d 1265, 1266 & n.1 (11th Cir. 1997). But as Justices Thomas and Scalia explained, Scarborough was a pre-Lopez “statutory interpretation opinion” issued in a case where “[n]o party alleged that the statute exceeded Congress’ authority, and the Court did not hold that the statute was constitutional.” Alderman v. United States, 562 U.S. 1163, 1165–67, 131 S.Ct. 700, 178 L.Ed.2d 799 (2011) (Thomas, J., dissenting from denial of certiorari) (noting lower courts have misapplied Scarborough to displace the Lopez framework for Commerce Clause challenges). For this reason, several circuit judges have concluded that § 922(g)(1) likely sweeps beyond Congress's power to regulate interstate commerce. See, e.g., Hembree, 165 F.4th at 918–21 (Willett, J., concurring); Seekins, 52 F.4th at 990–92 (Ho, J., dissenting from denial of reh'g en banc); Kuban, 94 F.3d at 977–78 (DeMoss, J., dissenting).

Even so, because the Supreme Court has yet to address lower courts’ “confusion about Scarborough and Lopez,” Alderman, 562 U.S. at 1166, 131 S.Ct. 700 (Thomas, J., dissenting from denial of certiorari), the Eleventh Circuit's decisions bind this Court, and it will dutifully follow them. See United States v. Jordan, 635 F.3d 1181, 1189 (11th Cir. 2011) (noting the Eleventh Circuit's repeated rejections of facial and as-applied Commerce Clause challenges to § 922(g)(1) and stating “[w]e are bound by prior panel decisions unless or until we overrule them while sitting en banc, or they are overruled by the Supreme Court”). “[S]o long as Scarborough’s minimal nexus test remains controlling precedent in this Circuit, this Court is not at liberty to chart another course.” United States v. Storey, 571 F. Supp. 3d 1296, 1298 (M.D. Fla. 2021).

IV.

Now on to Defendant's first claim against Counts Two and Three: that the NFA's various restrictions on SBRs—taxation, registration, and identification, with criminal penalties for non-compliance—violate the Second Amendment.

A.

Congress enacted the NFA in 1934. The NFA regulates certain classes of “firearm[s]” as defined in the Act: machineguns; silencers; SBRs; shotguns “having a barrel or barrels of less than 18 inches in length” (commonly called “short-barreled shotguns,” or “SBSs”); destructive devices; and “any other weapon” (“AOW”) as defined in § 5845(e). 26 U.S.C. § 5845(a).

Within the meaning of the NFA, a “rifle” is:

a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed cartridge.

Id. § 5845(c). The NFA does not regulate all rifles. Instead, it regulates only SBRs (short-barreled rifles), defined as any “rifle having a barrel or barrels of less than 16 inches in length,” as well as any “weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length.” Id. § 5845(a)(3)–(4).

The NFA requires manufacturers, importers, makers, and transferors of NFA-regulated firearms to register them in the National Firearms Registration and Transfer Record (“NFRTR”), see id. § 5841, a federal firearm registry now maintained by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) under the authority of the Attorney General, see id. § 7801(a)(2). Each manufacture, importation, transfer, or making must be recorded in the NFRTR. See id. § 5841(b). In addition, the NFA imposes taxes on dealing in, transferring, and making NFA-regulated firearms. See id. §§ 5801–02, 5811–12, 5821–22. At the time of Defendant's charged conduct, the making of an SBR required payment of a $200 tax.³ See id. § 5821 (2024).

“No person shall make” an NFA-regulated firearm unless he has filed a written application to do so and to register the firearm to the maker in the NFRTR, has paid any applicable tax, has identified the firearm, has identified himself, and has obtained the Attorney General's approval (through ATF) to make and register the firearm. Id. § 5822. The NFA requires “anyone making a[n]” SBR to identify it “by a serial number which may not be readily removed, obliterated, or altered, the name of the ․ maker, and such other identification as the [Attorney General] may by regulations prescribe.” Id. § 5842(a).

As pertinent here, the NFA makes it a crime for a person “to receive or possess a firearm which is not registered to him in the [NFRTR],” id. § 5861(d); and “to receive or possess a firearm which is not identified by a serial number as required by” its provisions, id. § 5861(i). Penalties for violations include fines up to $10,000, up to ten years’ imprisonment, or both. Id. § 5871.

B.

In Bruen, the Supreme Court held that the Second Amendment guarantees a right to carry a handgun in public for self-defense, and that a state may not condition the exercise of that right on a showing of a special need. 597 U.S. at 11, 70–71, 142 S.Ct. 2111. In doing so, the Court provided a new framework for analyzing Second Amendment claims: “when the Second Amendment's plain text covers an individual's conduct, the Constitution presumptively protects that conduct,” and “[t]o justify its regulation ․ the government must demonstrate that the regulation is consistent with this Nation's historical tradition of firearm regulation.” Id. at 17, 142 S.Ct. 2111. This requires a careful comparison of “at least two metrics: how and why the regulations burden a law-abiding citizen's right to armed self-defense.” Id. at 29, 142 S.Ct. 2111. In other words, Bruen requires a court to ask “whether modern and historical regulations impose a comparable burden on the right of armed self-defense and whether that burden is comparably justified.” Id.

The Court reaffirmed and applied Bruen’s framework in Rahimi. There, the Court rejected a facial Second Amendment challenge to the federal statute that prohibits firearm possession while under a “credible threat” domestic violence restraining order. 602 U.S. at 702, 144 S.Ct. 1889. The Court determined that “two distinct legal regimes” from “the 1700s and early 1800s,” id. at 694, 144 S.Ct. 1889—surety laws and going-armed laws—“confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed,” id. at 698, 144 S.Ct. 1889. The Court reached this conclusion after determining that both the “why” and the “how” of the challenged law and the two historical legal regimes were “relevantly similar.” Id. And the Court reiterated that its historical method requires a close analogy but not “a ‘dead ringer’ or a ‘historical twin.’ ” Id. at 692, 144 S.Ct. 1889 (quoting Bruen, 597 U.S. at 30, 142 S.Ct. 2111). In other words, the Court's methodology requires relevant similarity, but it is “not meant to suggest a law trapped in amber.” Id. at 691, 144 S.Ct. 1889.

Defendant argues that SBRs are “in common use,” District of Columbia v. Heller, 554 U.S. 570, 627, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008),⁴ and that the NFA's SBR restrictions fail Bruen and Rahimi’s historical test—a test that, on his telling, displaces the Supreme Court's prior Second Amendment decisions. Thus, he contends, the SBR restrictions facially violate the Second Amendment.⁵

Ultimately, this Court concludes (in Part IV.C., infra) that binding precedent forecloses Defendant's claim. However, for the sake of completeness, it first will address Defendant's argument on its own terms. The limits of the parties’ briefing preclude a confident answer. But so far as this Court can discern, if Defendant were correct that the NFA's SBR restrictions must undergo a Bruen/Rahimi inquiry, they would face an uncertain fate.

The Second Amendment's plain text applies to possession of an SBR, which is a “ ‘bearable arm[ ].’ ”⁶ Rahimi, 602 U.S. at 691, 144 S.Ct. 1889 (quoting Heller, 554 U.S. at 582, 128 S.Ct. 2783); see also Caetano v. Massachusetts, 577 U.S. 411, 411, 136 S.Ct. 1027, 194 L.Ed.2d 99 (2016) (per curiam) (“The Court has held that ‘the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding ․’ ” (quoting Heller, 554 U.S. at 582, 128 S.Ct. 2783)). Although the NFA is not a ban, it nonetheless places significant burdens on that activity. See Mock v. Garland, 75 F.4th 563, 567, 569–70 (5th Cir. 2023) (noting that “NFA ‘firearms’ are extensively regulated,” describing the regulatory burdens, and calling them an “especially restrictive regime”).⁷ Therefore, if Bruen and Rahimi provide the governing test, they would require the Government to “identify an American tradition justifying” the NFA's SBR restrictions. Bruen, 597 U.S. at 38–39, 142 S.Ct. 2111; see Rahimi, 602 U.S. at 689, 144 S.Ct. 1889. Here, the Government has made no attempt to identify such a tradition. (See generally Doc. 97). To ensure Defendant's claim is fully addressed, however, this Court will conduct its own historical inquiry and will attempt to locate appropriate analogues. See United States v. Ayala, 711 F. Supp. 3d 1333, 1338 (M.D. Fla. 2024) (though not its burden to bear, the court engaged in “a more robust historical inquiry” when the government “offer[ed] no relevant historical analogues” relating to the firearm regulation at issue); see also Bruen, 597 U.S. at 60, 142 S.Ct. 2111 (conducting its own “short review” despite noting that “sift[ing] the historical materials for evidence” is the government's burden).

The strongest justification for the NFA's SBR restrictions would be a historical tradition of regulating private ownership or possession of rifles (or any other kind of shoulder-fired arms, for that matter) based on their barrel length or overall length, and of imprisoning those who fail to comply. This Court doubts that such a tradition exists. At least one scholar thoroughly investigated the historical record and concluded that “[r]ifles with short barrels and pistols with shoulder stocks were considered ordinary arms throughout American history and never singled out for regulation until the 20th century.” Joseph G.S. Greenlee, The Tradition of Short-Barreled Rifle Use and Regulation in America, 25 Wyo. L. Rev. 111, 112 (2025). If that's right, the NFA's SBR regulations would appear not to “implicat[e]” the kind of “unprecedented societal concerns or dramatic technological changes” that Bruen suggested “may require a more nuanced approach.” Bruen, 597 U.S. at 27, 142 S.Ct. 2111. And if the NFA's SBR provisions “address[ ] a general societal problem that has persisted since the 18th century,” then “the lack of a distinctly similar historical regulation addressing that problem” would constitute “relevant evidence that the challenged regulation is inconsistent with the Second Amendment.” Id. at 26, 142 S.Ct. 2111.

One short-lived colonial law appeared to distinguish pistols according to their size, but it amounted only to a concealed-carry restriction, not a possession restriction, and the “pocket pistols” that it governed had entered common use by the time of the founding. See id. at 48–49 & n.13, 142 S.Ct. 2111 (discussing An Act Against Wearing Swords, &c., ch. 9, in Grants, Concessions, and Original Constitutions of the Province of New Jersey 290 (2d ed. 1881) (Grants and Concessions)). The law did not govern any kind of shoulder-fired firearm. And in any event, the Supreme Court has concluded that “this solitary statute” is not entitled to “meaningful weight,” as “eight years of history in half a Colony roughly a century before the founding sheds little light on how to properly interpret the Second Amendment.” Id. at 49, 142 S.Ct. 2111. Thus, this single colonial law does not offer a viable analogue for the NFA's SBR restrictions.

By 1821, at least two states banned the carry of pocket pistols. See An Act to Prevent the Wearing of Dangerous and Unlawful Weapons, ch. 13, 1821 Tenn. Pub. Acts 15, 15–16 (Heiskell & Brown 1821); An Act to Prevent Persons in This Commonwealth from Wearing Concealed Arms, Except in Certain Cases, ch. 89, § 1, 1812 Ky. Acts 100, 100–01 (Gerard & Berry 1813). But again, these laws did not regulate shoulder-fired arms, and they enacted only carry restrictions, not possession or ownership restrictions. In addition, one 1838 territorial law required those selling or openly carrying pocket pistols to pay an annual tax. See An Act to Prevent Any Person in This Territory from Carrying Arms Secretly, no. 24, §§ 1–3, 1838 Fla. Terr. Laws 36, 36 (S. S. Sibley 1838). By 1844, one more state followed suit by levying a two-dollar tax on the sale of pocket pistols. An Act to Amend and Reduce into One the Several Acts in Relation to the Revenue of This State, and for Other Purposes, ch. 1, § 66, 1844 Miss. Laws 5, 58 (Price & Rohrer 1844). Later, that tax was reduced to one dollar. See An Act Amendatory of the Revenue Laws of the State, and for Other Purposes, ch. 1, § 1, 1854 Miss. Laws 4, 50 (Barksdale & Jones 1854).

This handful of antebellum laws offers only marginal support for the NFA's SBR restrictions. Three were directed only at carrying or vending pocket pistols; only the latest of the four laws—Mississippi's—taxed purchases. Most significantly, none of the laws required registration or the government's prior approval to acquire or possess pocket pistols. Finally, as with the solitary colonial law discussed above, none of them related to any kind of shoulder-fired weapons whatsoever.

One potential analogue, however, does pertain to shoulder-fired weapons: colonial and founding-era militia regulations that outlined the equipment that militiamen were required to furnish and carry. A 1779 Vermont law, for example, required that “every listed Soldier ․ shall always be provided with, and have in constant Readiness, a well fixed Firelock, the Barrel not less than three Feet and a Half long, or other good Fire-arms, to the Satisfaction of the commissioned Officers of the Company to which he doth belong.” See An Act for Forming and Regulating the Militia and for Encouragement of Military Skill, for the Better Defence of This State, 1779 Vt. Acts & Resolves 1, 19–20 (Padlock & Spooner 1779). A 1693 Massachusetts law required the same. See An Act for Regulating of the Militia, § 5, 1693 Mass. Acts 21, 21–22 (Green 1693). Decades earlier, Massachusetts had required musketeers to “carry a ‘good fixed musket,’ not under bastard musket bore, not less than three feet, nine inches, nor more than four feet three inches in length.” United States v. Miller, 307 U.S. 174, 180, 59 S.Ct. 816, 83 L.Ed. 1206 (1939) (quoting a 1649 Massachusetts law). Similarly, a 1785 Virginia law provided that “ ‘[e]very non-commissioned officer and private’ ” shall be equipped “ ‘with a good, clean musket carrying an ounce ball, and three feet eight inches long in the barrel, with a good bayonet and iron ramrod well fitted thereto ․’ ” Id. at 181, 59 S.Ct. 816.

These militia regulations were carry mandates rather than possession restrictions, and they offer the NFA's SBR restrictions little support. As to the “how,” they imposed no burden on private firearm ownership or possession, instead merely regulating arms-bearing while serving in the militia. And as to the “why,” their evident aim was to standardize the arms that were borne in the militia to ensure their quality and effectiveness for militia service, rather than to restrict private ownership and possession.

Stepping up the level of generality a bit, see Rahimi, 602 U.S. at 691, 144 S.Ct. 1889 (cautioning against “trapp[ing]” the law “in amber”), the Government might point to a tradition that Heller itself recognized: “the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons,’ ” 554 U.S. at 627, 128 S.Ct. 2783. But this tradition provides a loose fit for the NFA's SBR restrictions. On Bruen and Rahimi’s “how” metric, it prohibited only the carrying of certain weapons in public, rather than simply possessing them (even in private). See Bruen, 597 U.S. at 46–50, 142 S.Ct. 2111 (discussing these laws). On Bruen and Rahimi’s “why” metric, this historical prohibition targeted the carry or display of certain arms in a manner and under circumstances likely to cause public alarm. See id. at 47, 142 S.Ct. 2111 (“A by-now-familiar thread runs through these three statutes: They prohibit bearing arms in a way that spreads ‘fear’ or ‘terror’ among the people.”). That concern is quite different from whatever concern animates the NFA's SBR possession restrictions.

Even so, some courts have placed the NFA's SBR restrictions within the tradition of prohibiting the carry of dangerous and unusual weapons. See, e.g., United States v. Rush, 130 F.4th 633, 643 (7th Cir. 2025); United States v. Cox, 906 F.3d 1170, 1185 (10th Cir. 2018). This Court, therefore, will assume that the “dangerous and unusual” tradition can offer a viable analogue. But “a court must be careful not to read” Bruen and Rahimi’s reason-by-analogy “principle at such a high level of generality that it waters down the right.” Rahimi, 602 U.S. at 740, 144 S.Ct. 1889 (Barrett, J., concurring). While courts must not “trap[ ]” the law “in amber,” Rahimi, 602 U.S. at 691, 144 S.Ct. 1889, they also must avoid an unprincipled approach to the Bruen/Rahimi framework that writes the Government a blank check to regulate based on “a vague term,” id. at 701, 144 S.Ct. 1889. Uncritical acceptance of the Government's assertion that an arm is “dangerous and unusual” would water down the standard, rendering it toothless and vague. And the Supreme Court has made crystal clear that toothless and vague standards have no place in the Second Amendment. See id. at 701, 144 S.Ct. 1889 (“[W]e reject the Government's contention that Rahimi may be disarmed simply because he is not ‘responsible.’ ‘Responsible’ is a vague term. It is unclear what such a rule would entail.” (citations omitted)); see also Heller, 554 U.S. at 634, 128 S.Ct. 2783 (rejecting interest-balancing and noting that “[t]he very enumeration of the right takes out of the hands of government ․ the power to decide on a case-by-case basis whether the right is really worth insisting upon”). Therefore, at a minimum, if the Government seeks to invoke the regulatory tradition regarding dangerous and unusual arms, it must provide some reasoned explanation why the arms that it seeks to regulate fit the mold.

This Court questions whether the NFA's SBR restrictions can clear that hurdle. Even taking a more flexible approach to Bruen and Rahimi’s analogical framework, and even assuming arguendo that SBRs are “unusual,” it's unclear why SBRs as a class would be “dangerous” enough to fall within a tradition of regulating “dangerous and unusual” arms. See Caetano, 577 U.S. at 417, 136 S.Ct. 1027 (2016) (Alito, J., concurring in the judgment) (“A weapon may not be banned unless it is both dangerous and unusual.”); cf. Heller, 554 U.S. at 627, 128 S.Ct. 2783 (contrasting unprotected “dangerous and unusual weapons” with protected “weapons ․ in common use at the time” (quotation marks omitted)).

The most obvious “dangerousness” principle that the SBR restrictions might reflect is an effort to regulate rifles based on their relative concealability. But the existence of pistols that differ from rifles only by their lack of a shoulder stock—and the NFA's failure to regulate such pistols ⁸ —makes it difficult to cast an SBR's relative concealability as meaningfully indicating dangerousness. See Mock, 75 F.4th at 573 (“Yet that statutory emphasis on a stock leads to some odd results: An AR-style rifle with a barrel shorter than 16 inches is subject to the restrictions of the NFA, while an identical AR-style pistol with similar dimensions but missing a shoulder stock is not.”).

For example, consider the Thompson Center Arms Co. “Contender” pistol and “carbine-conversion kit” that the Supreme Court examined in United States v. Thompson/Center Arms Co., 504 U.S. 505, 112 S.Ct. 2102, 119 L.Ed.2d 308 (1992).⁹ As the Court's plurality observed, neither the 10-inch-barreled pistol nor the 21-inch-barreled carbine rifle created with the kit is an SBR; an SBR is made only if “the shorter, pistol-length barrel is not removed from the receiver when the rifle stock is added,” resulting in the creation of “a 10-inch or ‘short-barreled’ carbine rifle.” Id. at 508, 112 S.Ct. 2102 (plurality); see also id. at 513, 112 S.Ct. 2102 (plurality) (“[T]he unregulated Contender pistol can be converted not only into a short-barreled rifle, which is a regulated firearm, but also into a long-barreled rifle, which is not.”). Adding a shoulder stock to a pistol lengthens the firearm and thus makes it less concealable. If concealability is the benchmark of an arm's dangerousness, then the NFA's SBR restrictions—by regulating the attachment of a shoulder stock to a pistol, but not possession of the bare pistol itself—miss the mark. An SBR generally is less concealable than an equivalent, non-NFA-regulated pistol in the same frame and caliber. Yet the NFA regulates only the former. See Mock, 75 F.4th at 573 (noting this “odd result[ ]”).

Perhaps the NFA's SBR restrictions instead reflect an effort to regulate rifles based on a more nuanced conception of dangerousness—a combination of their relative concealability and their relative lethality. Elsewhere, the Government has “theorize[d]” precisely this explanation as the policy behind the NFA's SBR restrictions. See id. at 573 (“In the Final Rule, the ATF theorizes that SBRs are ‘dangerous and unusual due to both their concealability and their heightened ability to cause damage.’ ”); see also Rush, 130 F.4th at 643; Cox, 906 F.3d at 1185. However, that framing presents difficulties, too.

For starters, as a general matter, projectile velocity correlates with barrel length; for a given caliber and cartridge, longer barrels tend to produce higher velocities. See Barrel Length vs. Bullet Velocity: The Definitive Guide, Black Basin Outdoors, https://blackbasin.com/guides/bullet-velocity-vs-barrel-length/ (last visited Apr. 15, 2026). And higher projectile velocities tend to cause more devastating terminal effects. See Martin L. Fackler, Jr., M.D., Wounding Patterns of Military Rifle Bullets, 22 Int'l Def. Rev. 59, 63 (1989) (“Bullet mass and bullet striking velocity establish a bullet's potential; they set the limit on the tissue disruption it can produce.”); see also id. at 61 (describing how an M193 5.56x45mm projectile's striking velocity determines its level of fragmentation and tissue disruption). This means that, as a general rule and holding all other variables constant, rifles with shorter barrels tend to produce smaller wounds than do rifles with longer barrels. See Dr. Philip H. Dater & Jason Wong, Barrel Length Studies in 5.56mm NATO Weapons, Small Arms Def. J., February 2012, available at https://sadefensejournal.com/barrel-length-studies-in-5-56mm-nato-weapons/2/ (noting as to 5.56x45mm rifles that short barrels produce lower projectile velocities, “decreased projectile kinetic energy,” and “decreased ability to generate a significant wou[n]d channel”).

Of course, different calibers and cartridges have different projectile masses and fire their projectiles at different velocities, but the NFA's SBR restrictions don't account for that. Even SBRs chambered in calibers traditionally associated with pistols (e.g., 9x19mm) fall within the NFA's definition of “rifle,” and even pistols chambered in calibers traditionally associated with rifles (e.g., 5.56x45mm) do not. So, while it's generally true that cartridges traditionally associated with rifles tend to be “more powerful than” cartridges traditionally associated with pistols, Rush, 130 F.4th at 637; accord Cox, 906 F.3d at 1185 (noting a “heightened capability to cause damage”),¹⁰ the NFA's SBR restrictions don't turn on that distinction. Nor do the NFA's SBR restrictions account for the fact that pistols capable of firing more powerful cartridges may be more concealable than less powerful SBRs. For example, an AR-15-type SBR with a 12-inch barrel chambered in 9x19mm is both significantly less powerful and marginally less concealable than, say, an AR-15-type pistol with a 10-inch barrel that's chambered in 5.56x45mm, but the NFA regulates only the former.

Perhaps most illustrative of all, the NFA's SBR restrictions do not differentiate action types or ammunition capacity; they restrict even single-shot, break-action rifles (regardless of caliber) with barrels less than 16 inches. Even a single-shot, break-action rifle chambered in the diminutive .22 LR falls subject to the NFA if its barrel measures less than 16 inches. Hardly anyone would call such an SBR “dangerous” as compared to a semi-automatic pistol of any kind, much less a semi-automatic pistol chambered to fire a more powerful cartridge. But the NFA's fixation on barrel length and shoulder-firing capability commands this “odd result[ ].” Mock, 75 F.4th at 573.

In sum, even assuming that a possession restriction can be shoehorned into a tradition of restricting the carry of “dangerous and unusual” arms, the NFA's oversimplified approach to SBRs does not reflect a conception of dangerousness that withstands scrutiny.¹¹ While it may make sense, in theory, to conceptualize dangerousness as a combination of concealability and lethality, see Rush, 130 F.4th at 643; Cox, 906 F.3d at 1185, shoulder-firing capability and barrel length are, at best, a poor proxy for those metrics.

Finally, to the extent that the NFA's SBR regulations might reflect an effort to more strictly regulate some rifles that are more portable and easier to use than others (on the theory that shorter rifles are easier to store, access, and wield than longer ones, and thus are more dangerous), this Court is aware of no historical tradition justifying such a regulatory approach. Moreover, Heller seems to place it on shaky footing:

It is no answer to say, as petitioners do, that it is permissible to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed. It is enough to note, as we have observed, that the American people have considered the handgun to be the quintessential self-defense weapon. There are many reasons that a citizen may prefer a handgun for home defense: It is easier to store in a location that is readily accessible in an emergency; it cannot easily be redirected or wrestled away by an attacker; it is easier to use for those without the upper-body strength to lift and aim a long gun; it can be pointed at a burglar with one hand while the other hand dials the police.

554 U.S. at 629, 128 S.Ct. 2783. As compared to longer rifles, SBRs have these same defensive advantages (save the virtue of one-handed use). They are easier to store in accessible locations and less prone to being wrestled away, and they require less upper-body strength to wield. In addition, their shoulder-firing capability allows them to be fired more accurately than handguns. And if ease of storage, access, control, and use are virtues counseling constitutional protection, the Government cannot hold them up as dangerous vices that call for regulation. See id. (explaining that handguns are popular and receive Second Amendment protection because of these defensive utilities); see also Mock, 75 F.4th at 588 (Willett, J., concurring) (expressing Second Amendment concerns and stating that “[e]ven for attachments that convert a pistol into a[n] [SBR] under the [NFA], ATF has not identified any historical tradition of requiring ordinary citizens to endure a lengthy, costly, and discretionary approval process just to use accessories that make an otherwise lawful weapon safer”).

That these defensive utilities can be put to criminal misuse does not, in itself, justify the regulation. As Heller acknowledged, “handgun violence” is a “problem ․ in this country.” 554 U.S. at 636, 128 S.Ct. 2783. Indeed, Defendant's crime statistics suggest that handgun violence is a far more serious and pervasive problem than rifle violence. Yet in Heller, the Court sustained a Second Amendment claim involving handguns, and it has continued to do so since then. See, e.g., Bruen, 597 U.S. at 27, 142 S.Ct. 2111 (“New York's proper-cause requirement concerns the same alleged societal problem addressed in Heller: ‘handgun violence, primarily in “urban area[s].’ ”); McDonald v. City of Chicago, 561 U.S. 742, 791, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010). To justify an arms regulation, therefore, the Government must point to more than defensive utilities that can be misused.

C.

Ultimately, this Court need not grapple with the difficulty of mapping the NFA's SBR restrictions onto the Bruen/Rahimi framework. In United States v. Miller, the Supreme Court upheld the NFA's short-barreled shotgun (“SBS”) restrictions against a Second Amendment challenge. 307 U.S. 174, 178, 59 S.Ct. 816, 83 L.Ed. 1206 (1939). And, critically, the Court has not overruled Miller. To the contrary, while Heller explained the significant limits of Miller’s precedential value,¹² 554 U.S. at 623–24, 128 S.Ct. 2783, it nonetheless reaffirmed its holding, id. at 625, 128 S.Ct. 2783. In addition, “the Bruen majority also did not pass on—let alone criticize—Miller.” United States v. Robinson, No. 23-12551, 2025 WL 870981, at *5 (11th Cir. Mar. 20, 2025) (per curiam).¹³ Neither did the Rahimi majority. See generally 602 U.S. at 684–702, 144 S.Ct. 1889.

Notwithstanding Bruen and Rahimi’s new framework for Second Amendment claims, then, Miller’s holding continues to bind lower courts. See United States v. Wilson, 979 F.3d 889, 903 (11th Cir. 2020) (rejecting Second Amendment challenge to NFA's SBS restrictions under Miller); see also Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (“We reaffirm that if a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” (simplified)). And this Court agrees that Miller forecloses a Second Amendment challenge to the NFA's SBR restrictions where, as here, the defendant fails “to present a distinction” between SBRs and SBSs that justifies “treating these two types of short-barreled firearms ․ differently.” Robinson, 2025 WL 870981, at *5 (unpublished but persuasive on this point); accord Cox, 906 F.3d at 1186 (rejecting Second Amendment challenge where defendant “offered no meaningful distinction between” SBRs and SBSs, noting “[w]e need not opine on whether a sufficient factual record could be developed to distinguish short-barreled rifles from short-barreled shotguns”).

That is particularly true where the defendant brings a facial challenge. The NFA's SBR restrictions theoretically may have applications that distinguish them from the SBS restrictions that Miller upheld, thus triggering a Bruen/Rahimi analysis. But Miller bars any facial claim. And that is the kind of claim that Defendant brings here; he makes no showing that the particular SBR he's charged with possessing should fall outside Miller. While Miller may leave open an as-applied claim supported by a sufficient evidentiary record,¹⁴ it forecloses the kind of facial claim that Defendant has chosen to bring. See Robinson, 2025 WL 870981, at *5 (“A successful Second Amendment challenge to the NFA must distinguish itself from the challenge the Supreme Court rejected in Miller. Here, Robinson has not established how the distinctions between short-barreled rifles and short-barreled shotguns present a relevant and material difference that would make one regulation constitutional and the other not.”) (unpublished but persuasive on this point).

In short, Defendant brings a facial challenge, and he makes no attempt to distinguish his case from Miller. Instead, he argues that Bruen displaces it. (See Doc. 91 at 15–16). Whatever tension he sees between Miller and Bruen, however, is for the Supreme Court alone to resolve. See Agostini, 521 U.S. at 237, 117 S.Ct. 1997. For that reason, this Court rejects Defendant's Bruen/Rahimi Second Amendment challenge to Counts Two and Three.

V.

Rounding out its review of the motion to dismiss, this Court rejects Defendant's final claim against Counts Two and Three. Drawing on First Amendment “fee” jurisprudence, see Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943); Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941), Defendant argues that the NFA “enforces an unconstitutional fee or tax on the Second Amendment right to keep and bear arms,” (Doc. 91 at 16). Before Bruen, the Eleventh Circuit rejected this argument on plain-error review, noting the absence of binding precedent to support it. See United States v. Bolatete, 977 F.3d 1022, 1035–36 (11th Cir. 2020). This Court now rejects it de novo.

In Bruen, the Supreme Court eschewed a doctrine-based, means-end scrutiny approach to the Second Amendment, instead mapping out a historical-analogical framework. Compare Ezell v. Chicago, 651 F.3d 684, 703 (7th Cir. 2011) (before Bruen, “[b]orrowing from the [Supreme] Court's First Amendment doctrine” to adopt a means-end scrutiny approach to the Second Amendment), with Bruen, 597 U.S. at 19, 142 S.Ct. 2111 (rejecting means-end scrutiny). The Court reiterated that framework in Rahimi. See 602 U.S. at 692, 144 S.Ct. 1889. Therefore, absent some historical-analogical justification, this Court will not import into the Second Amendment context a First Amendment doctrine—like fee jurisprudence—that arose from an application of means-end scrutiny. See Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 137, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) (observing that “the tax at issue in Murdock was invalid because it was unrelated to any legitimate state interest”); Fly Fish, Inc. v. City of Cocoa Beach, 337 F.3d 1301, 1315 (11th Cir. 2003) (holding that, under Cox and Murdock, a fee “must be reasonably related to recouping the costs of administering the ․ program”). Bruen and Rahimi, rather than First Amendment doctrine, provide the rubric for evaluating Second Amendment claims. And while Bruen acknowledged that “exorbitant fees” can “deny ordinary citizens their” Second Amendment rights, 597 U.S. at 38 n.9, 142 S.Ct. 2111, Defendant makes no showing that the NFA's tax has that effect.

* * *

For the foregoing reasons, it is ORDERED:

Defendant's “Amended Motion to Dismiss Superseding Indictment and Memorandum of Law” (Doc. 91) is DENIED.

DONE and ORDERED in Jacksonville, Florida on April 23, 2026.

FOOTNOTES

1.   See, e.g., Range v. Att'y Gen., 124 F.4th 218, 232 (3d Cir. 2024) (en banc) (sustaining an as-applied challenge where no record evidence indicated “a physical danger to others”); United States v. Williams, 113 F.4th 637, 662 (6th Cir. 2024) (concluding that § 922(g)(1) “is constitutional as it applies to dangerous individuals”); see also, e.g., United States v. Duarte, 137 F.4th 743, 779 (9th Cir. 2025) (en banc) (VanDyke, J., concurring in the judgment in part and dissenting in part) (noting “the split among the circuit courts over the constitutionality of § 922(g)(1) as applied to felons convicted of non-violent offenses” (emphases added)); Simpson v. State, 368 So. 3d 513, 528–29 (Fla. 5th DCA 2023) (Pratt, J., concurring) (acknowledging that Bruen may suggest the viability of “as-applied challenges brought by non-violent, non-habitual convicts that pose no danger to the public,” and rejecting a facial challenge to Florida's felon-in-possession ban, noting that its application to insurrectionists and traitors “precisely track[s] early American disarmament policies”).Even before Bruen and Rahimi, several jurists—including then-Judge Amy Coney Barrett—reached the same conclusion. See, e.g., Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting) (voting to sustain an as-applied challenge, but acknowledging that “[h]istory ․ demonstrates that legislatures have the power to prohibit dangerous people from possessing guns”); Folajtar v. Att'y Gen., 980 F.3d 897, 912–13 (3d Cir. 2020) (Bibas, J., dissenting) (same).

2.   The superseding indictment alleges possession of ammunition “in and affecting interstate commerce,” (Doc. 85 at 2 (emphasis added)), but this allegation does not track the statutory language.

3.   The NFA originally imposed taxes on each transfer and each making of an NFA-regulated firearm, but the “One Big Beautiful Bill Act,” Pub. L. No. 119-21, 139 Stat. 72, § 70436 (2025), reduced the SBR taxes to $0 and retained the $200 taxes only for machineguns and destructive devices.

4.   Defendant points to an ATF report indicating that, as of sometime last year, 870,286 SBRs were registered in the NFRTR. (Doc. 91 at 9 n.3). Defendant also points to a webpage claiming that SBRs have become increasingly popular for home defense, training, and competitions, (id. at 9–10), as well as a crime survey and a crime report indicating that rifles of all kinds—standard and short-barreled—are rarely used in crimes, (id. at 12–13). However, Defendant does not contend that these showings suffice to invalidate the NFA's SBR restrictions; instead, he argues the restrictions “must pass Bruen’s historical test.” (Id. at 14). Therefore, to resolve Defendant's claim on its own terms, this Court need not—and does not—pass on whether Defendant has shown that SBRs are in common use for lawful purposes.

5.   Defendant advances no as-applied arguments, so his claim must be a facial one.

6.   Defendant is charged with possession of an SBR made in violation of the NFA's requirements, but not with unlawfully making the SBR himself. Accordingly, this Court need not—and does not—decide whether the Second Amendment guarantees a right to make arms. Compare, e.g., Duncan v. Bonta, 695 F. Supp. 3d 1206, 1233 (S.D. Cal. 2023), rev'd on other grounds, 133 F.4th 852 (9th Cir. 2025) (en banc), cert. filed, No. 25-198 (U.S.); Rigby v. Jennings, 630 F. Supp. 3d 602, 607–10 (D. Del. 2022).

7.   For the founding generation, the arms confiscation that preceded the Battle of Lexington and Concord was not a distant memory. Thus, at the time of the Second Amendment's ratification, firearm registration likely would have been considered a significant burden on the right to keep and bear arms. Even to this day, with the narrow exception of the NFA, federal law reflects a distrust of firearm registries. See Firearm Owners Protection Act of 1986, 100 Stat. 449, Pub. L. No. 99-308, § 106 (prohibiting the Attorney General from prescribing a rule or regulation that uses background-check forms to create a de facto firearm registry), codified at 18 U.S.C. § 926. “Registration of all lawfully possessed guns—as distinct from licensing of gun owners or mandatory record-keeping by gun sellers—has not traditionally been required in the United States and even today remains highly unusual.” Heller v. District of Columbia, 670 F.3d 1244, 1270 (D.C. Cir. 2011) (Kavanaugh, J., dissenting).

8.   As originally introduced, the NFA would have regulated pistols. See Mock, 75 F.4th at 570. “But that was not the version that Congress passed. Instead, the final text of the NFA specifically exempts ‘a pistol or a revolver having a rifled bore’ from its coverage.” Id. (quoting 26 U.S.C. § 5845(e)).

9.   In its response, the United States cites Thompson/Center Arms Company for the proposition that SBRs “are not protected by the Second Amendment.” (Doc. 97 at 4). The Supreme Court held no such thing in that case. Thompson/Center Arms Company concerned a question of statutory interpretation—whether the NFA's “making” provision applied to the pistol and carbine conversion kit—and the respondent raised no Second Amendment claim. 504 U.S. at 507, 112 S.Ct. 2102 (plurality). Therefore, the plurality opinion cannot and does not reach a Second Amendment holding. Moreover, the plurality's conjecture about why Congress may have chosen to include SBRs in the NFA cannot reasonably be understood as an application of Heller’s later-announced “common use” test or Bruen and Rahimi’s later-announced historical framework. See id. at 517, 112 S.Ct. 2102 (plurality) (asserting that “the NFA's object was to regulate certain weapons likely to be used for criminal purposes, just as the regulation of short-barreled rifles, for example, addresses a concealable weapon likely to be so used,” but nonetheless describing congressional purpose as an “extraneous issue” about which “we will say no more”).

10.   As a general matter, cartridges traditionally associated with rifles produce higher projectile velocities than do cartridges traditionally associated with pistols. And projectile velocity has an exponential impact on the kinetic energy that a projectile carries, whereas projectile mass has only a linear one, because Ek = 1/212mv2. To be sure, a projectile's kinetic energy is not the only variable that drives its terminal performance; however, it does “set the limit on the tissue disruption” that the projectile “can produce.” Fackler, supra, at 63.

11.   By “scrutiny,” the undersigned does not imply means-end scrutiny, which the Supreme Court has firmly rejected in the Second Amendment context. Rather, the undersigned understands Bruen and Rahimi to require a reasoned explanation why the challenged regulation is relevantly similar to historical analogues—here, why SBRs fit the mold of “dangerous and unusual” arms. In other words, courts must meaningfully scrutinize the Government's contention that a particular arm fits the “dangerous and unusual” mold, rather than simply take the Government at its word.

12.   “It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.” Heller, 554 U.S. at 623, 128 S.Ct. 2783. “The defendants made no appearance in the case, neither filing a brief nor appearing at oral argument; the Court heard from no one but the Government (reason enough, one would think, not to make that case the beginning and the end of this Court's consideration of the Second Amendment).” Id. “The Government's Miller brief ․ provided scant discussion of the history of the Second Amendment—and the Court was presented with no counterdiscussion. As for the text of the Court's opinion itself, that discusses none of the history of the Second Amendment.” Id. at 623–24, 128 S.Ct. 2783.

13.   Unpublished opinions are not binding precedent; however, this Court cites them as persuasive authority when it deems them persuasive on a particular point. See McNamara v. GEICO Emps. Ins. Co., 30 F.4th 1055, 1060–61 (11th Cir. 2022); Fed. R. App. P. 32.1; 11th Cir. R. 36–2 (“Unpublished opinions are not considered binding precedent, but they may be cited as persuasive authority.”).

14.   Miller itself suggests as much. See Miller, 307 U.S. at 178, 59 S.Ct. 816 (“In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” (emphasis added)). Heller declined to read Miller’s “ordinary military equipment” and “militia” language in isolation, see 554 U.S. at 624–25, 128 S.Ct. 2783, but it did not question Miller’s focus on the record evidence, see id. at 622, 128 S.Ct. 2783 (“Had the [Miller] Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen.” (emphasis added)).

JORDAN E. PRATT, UNITED STATES DISTRICT JUDGE