The National Firearms Act of 1934, often seen as a panacea to the recent use of full-auto weapons in crimes like the St. Valentine's Day massacre and the cross-country murder spree of Bonnie & Clyde, was America's first major national gun-control law. It made a sort of legal end-run around the Second Amendment by placing a $200 "tax" on the transfer of certain firearms, including anything capable of fully-automatic fire (the gun cycles and fires as long as the trigger is held down), short-barreled rifles and shotguns, and sound suppressors.
Congress, however, in the One Big Beautiful Bill, struck that tax. Now the 1934 NFA is a tax law with no taxes, and the National Rifle Association (NRA) and three other pro-Second Amendment groups are suing to have the whole thing overturned.
You have to love the strategy. If you’ll remember, back in June when the Big Beautiful Bill was being haggled over, there was much sturm und drang over the existential nature of the National Firearms Act, and how the Senate Parliamentarian would treat efforts to pull items like suppressors and SBRs out as part of the reconciliation process. Again, reconciliation measures can sidestep the Senate’s 60-vote requirement and pass with a simple majority.
As many pointed out, the courts and the DOJ had for decades made the case that the NFA is tax measure. That’s how its primary champion justified it as not infringing on Americans’ gun rights when the NFA was being considered back in 1934. That being the case, inclusion of both the SHORT Act and the Hearing Protection Act in the B³ should have been a no-brainer.
The Senate Parliamentarian, however, saw things differently and ruled them out. That’s why, instead of pulling suppressors, SBRs and SBSs out of the NFA and regulating them like any other firearm you can buy today, the only step forward included in the final version of the B³ was the elimination of the $200 tax stamp (which will take effect on January 1).
Ah-ha! That's where there appears to be an opening for a lawsuit to toss the whole thing.
But wait. Zeroing out the tax stamp isn’t nothing. As we and others have pointed out, eliminating the tax stamp undercuts any remaining argument that the NFA is a tax…because there is no longer a tax involved. On top of that, cans and SBRs are in common use. That means they pass the Heller test. There’s also no text, history or tradition of regulating them which means doing so doesn’t pass the Bruen test.
Long story short…the NFA is now very constitutionally vulnerable. Yesterday, four gun rights orgs filed a lawsuit in the Northern District of Texas — part of the gun-friendly Fifth Circuit — making exactly that case.
The four groups mentioned are the NRA, the American Suppressor Association (ASA), the Second Amendment Foundation (SAF), and the Firearms Policy Coalition (FPC).
If this suit were to succeed and the NFA were struck down, it would be an interesting change in American shooting sports. Yes, presumably this would make full-auto weapons easier to obtain, but a 1986 law, the Firearms Owners' Protection Act, prohibited the sale of new-manufacture full-auto weapons to the general public, limiting them to law enforcement and the military. So if you want a full-auto weapon, you're limited to the stocks that were already built for that market before this law took effect.
That's one of the reasons a nice original 1927 Thompson "Chicago Typewriter," if you can find one for sale, will set you back as much as a good-sized house.
No, where the real action here will be is in the likely explosion of short-barreled rifles (SBRs) and suppressors. Suppressors - often incorrectly called "silencers" won't reduce a gunshot to the "pew" you see in movies and on television, but they do result in a significant reduction of the report. In Europe, these things are ubiquitous; it's considered poor form in the nations of Europe to go banging around the game fields with an unsuppressed rifle. As for the SBRs, the omnipresent AR-15 platform can be converted to one very quickly by the expedient of swapping out the upper receiver assembly, say, swapping a 20" barrel for a 12" barrel for whatever anticipated close-quarters work you may need done - or more likely, just for fun.
Read More: In a Sane World, Firearms Suppressors Would Be Unregulated
OPINION: Can Donald Trump Deliver on the NRA's Christmas Wish List?
The whole suit seems to hinge on the tax angle. The 1934 NFA was sold as a tax measure; the tax is gone. The lawsuit filed by the NRA, ASA, SAF, and FPC states in part:
Congress passed the NFA explicitly premised on its enumerated power to “lay and collect Taxes,” U.S. CONST. art. I, § 8, cl. 1, and the Supreme Court upheld provisions of the NFA on that basis, holding that the NFA was “only a taxing measure” and that the registration provisions were “obviously supportable as in aid of a revenue purpose,” see Sonzinsky v. United States, 300 U.S. 506, 513 (1937). Indeed, the Court has described the NFA as “an interrelated statutory system for the taxation of certain classes of firearms.” Haynes v. United States, 390 U.S. 85, 87 (1968) (emphasis added). That constitutional basis, however, has recently been eliminated with respect to the making, transferring, and receiving of several items which are defined as “firearms” by the NFA, including suppressors, short-barreled rifles, and short-barreled shotguns, thus making the NFA’s restrictions on those items unconstitutional as applied to those arms.
This will take a while, working its way through the courts. The Northern District of Texas would seem like a decent starting place, but this will likely end up before the Supreme Court. And in the post-Bruen world, who knows? This might actually work, and hand the pro-Second Amendment community the biggest win since, well, 1934.
Also, if this works, maybe I'll finally be able to buy a brand-new Marble's Game-Getter.
You can see the entire legal filing here.
Editor’s Note: The Schumer Shutdown is here. Rather than put the American people first, Chuck Schumer and the radical Democrats forced a government shutdown for healthcare for illegals. They own this.
Help us continue to report the truth about the Schumer Shutdown. Use promo code POTUS47 to get 74% off your VIP membership.