United States v. DeFelice, No. 25-920-cr (2d Cir. Sept. 2, 2026) (Lohier, Kearse, and Walker, Circuit Judges) (per curiam).

Affirming DeFelice’s conviction on a conditional plea for possessing two unregistered short-barreled rifles and an unregistered suppressor, the panel held that because neither the registration requirement nor the then-$200 fee of the National Firearms Act (NFA) “meaningfully constrained” his right to keep and bear arms, the statute doesn’t implicate the Second Amendment. The panel got there by defining the regulated conduct as the possession of unregistered items, and then by noting that DeFelice “has not even argued, let alone established,” that the required application, wait, and $200 fee impeded his ability to acquire a firearm. Slip op. at 12.

The opinion breaks no new ground and aligns the Second with three sister Circuits upholding the NFA as a presumptively constitutional “shall issue” regime. However, practitioners should note that a 2025 amendment removing the $200 fee and reducing it to $0, which did not apply to DeFelice because his conduct preceded it, slip op. 7-8, may render the NFA unconstitutional, as a Texas district court recently held. See infra.

Background

Section 5861(d) of Title 26 makes it unlawful for anyone to “receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.” Section 5845 defines “firearm” to include short-barreled rifles and suppressors.

To register, an individual must “complete an application identifying the firearm” and “contain[ing] copies of the applicant’s fingerprints and his photograph,” 26 U.S.C. § 5812(a); United States v. Peterson, 161 F.4th 331, 336 (5th Cir. 2025). And when DeFelice offended in 2021, the registrant must also pay a $200 tax. 26 U.S.C. § 5811(a) (amended 2025).

Enacted in the 1930s the NFA was “the first major federal law regulating the firearms industry.” It created “a taxation and registration scheme to ‘achieve greater control and regulation of weapons that can be used in violent crimes.'” Slip op. at 6 (quoting United States v. Tribunella, 749 F.2d 104, 109 (2d Cir. 1984)).

ATF investigated DeFelice on a tip that he was selling guns out of his basement without a license. A search of his home turned up two unregistered short-barreled rifles and one unregistered suppressor.

Indicted for possessing unregistered NFA firearms, he moved to dismiss on Second Amendment grounds. The district court denied the motion. DeFelice entered a conditional plea and was sentenced in 2024 to a year and a day in prison.

After his sentencing, Congress eliminated the $200 tax for short-barreled rifles and suppressors. Act of July 4, 2025, Pub. L. No. 119-21, § 70436(a), 139 Stat. 72, 247 (codified as amended at 26 U.S.C. §§ 5811(a), 5821(a)). Other registration requirements survive.

Ruling

On appeal, DeFelice first argued that the 2025 amendment “casts doubt on the constitutionality of the NFA and, therefore, his conviction.” Slip op. at 7. The panel rejected the argument because DeFelice lacked standing to invoke the 2025 amendment. “[T]he federal saving statute preserves the original penalties in effect when [DeFelice] committed the offense” because Congress did not make the amendment retroactive. Id. (quoting United States v. Smith, 354 F.3d 171, 173 (2d Cir. 2003)); see 1 U.S.C. § 109. His injury is therefore neither “traceable” to the amended statute nor “redressable” by a favorable ruling. N.Y. State Firearms Ass’n v. James, 157 F.4th 232, 243 (2d Cir. 2025).

That left the statute “in effect at the time [DeFelice] committed the original offense.” Smith, 354 F.3d at 172. And at Bruen’s step one, the challenger “bears the burden of demonstrating that the Second Amendment’s plain text covers” his conduct. N.Y. State Firearms Ass’n, 157 F.4th at 244; see generally New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022).

Characterization of the regulated conduct came first and decided the case against DeFelice. The panel rejected his framing of the conduct at issue — that the law targeted the mere “possession” of short-barreled rifles and suppressors — as “characterize[ing] the regulated conduct at too high a level of generality.” United States v. Gomez, 159 F.4th 172, 176 (2d Cir. 2025). “Instead, we describe the regulated conduct just as the challenged pre-2025 NFA provisions do: the possession of unregistered short-barreled rifles and suppressors.” Slip op. at 9 (emphasis in original).

So described, the NFA doesn’t reach the plain text of the Second Amendment. Regulations on “acquiring, transporting, and storing firearms only implicate the text of the Second Amendment if they meaningfully constrain the right to possess and carry arms.” N.Y. State Firearms Ass’n, 157 F.4th at 244 (emphasis in original). “[R]easonable processing times and the hassle of filling out paperwork” ordinarily do not, id. at 245, nor does “a regulatory fee that is both calibrated to only defray administrative costs and is not prohibitively expensive,” id. at 248.

Indeed, DeFelice himself described the $200 tax (unchanged since 1934) as “something short of a nuisance fee.” Slip op. at 11–12 (quoting Appellant’s Br. 6). And he “has not even argued, let alone established, that the length of time for registering an NFA firearm or the $200 tax impeded his right to acquire firearms.” Slip op. at 12. The panel joined three other circuits treating NFA registration as a “presumptively constitutional . . . shall-issue regime.” Peterson, 161 F.4th at 339; see United States v. Speed, 175 F.4th 272, 285–86 (4th Cir. 2026); United States v. DeBorba, 177 F.4th 1005, 1013 (9th Cir. 2026).

Practitioner’s Notes

First, whether a law “meaningfully constrain[s]” the right to bear arms is at least partially a factual question. The panel did not hold that a registration scheme can never implicate the Second Amendment — it held that because this defendant offered nothing on wait times, cost, or actual impediment to acquisition, the Second Amendment wasn’t implicated. See Bruen, 597 U.S. at 38 n.9 (challenges available where “lengthy wait times” or “exorbitant fees” deny ordinary citizens the right).

Second, for NFA offenses committed after July 4, 2025, the stronger constitutional attack is not the Second Amendment. In Silencer Shop Foundation v. ATF, No. 6:25-CV-056-H (N.D. Tex. Aug. 5, 2026), the district court held that zeroing out the fee destroyed the NFA’s only constitutional basis: “Congress enacted the NFA under its taxing power—and the taxing power only,” and provisions that produce no revenue “cannot be sustained under the taxing power.” The Commerce Clause can’t fill the gap because the NFA carries no interstate-commerce jurisdictional hook.

Finding no other constitutional provision authorizing Congress to enact the NFA, the court struck the law as exceeding Congress’s enumerated powers under the Constitution: “Because today’s NFA does not generate any revenue from untaxed firearms, its regulatory provisions cannot be upheld under the taxing power. And there is no sign in the NFA’s text, structure, or statutory history that Congress invoked any other power in crafting the NFA provisions at issue. Thus, the regulatory provisions must be enjoined as unconstitutional because they exceed Congress’s enumerated powers.” The case is headed to the Fifth Circuit.