Second Amendment Roundup: National Firearms Act Constitutional Issues

Wyoming Law Review publishes special issue on the NFA.

The Wyoming Law Review's Special Edition on the National Firearms Act is now available.  Last fall, the Firearms Research Center at the University of Wyoming College of Law hosted a symposium on historical, statutory, and constitutional issues involving the NFA.  The papers stemmed from that conference.

Here's the abstract from my contribution, The Power to Tax, The Second Amendment, and the Search for Which "Gangster Weapons" To Tax:

Congress does not have the power to ban firearms. The National Firearms Act (NFA) is based on the power of Congress to lay and collect taxes. In 1937, the Supreme Court upheld the NFA as purely a revenue measure. When it banned possession of machineguns in 1986, Congress undercut that constitutional basis. The Supreme Court has held that any ambiguities in the NFA must be read narrowly according to the rule of lenity.

The 1934 House hearings barely mentioned the Second Amendment. A federal district judge upheld the NFA under the theory that the Amendment does not protect individual rights. In 1939, the Supreme Court declined to take judicial notice that a short-barreled shotgun is "ordinary military ordnance" protected under the Second Amendment.

Recently, the Court has adopted the test that the Amendment protects arms that are in common use. The initial NFA bill, and the bill as enacted, arbitrarily included some firearms and excluded others. After enactment, the Attorney General went on a failed crusade to require all firearms to be registered.

Short-barreled rifles and silencers should be removed from the NFA. Neither was identified in the 1934 hearings as desirable to criminals. Today, registered short-barreled rifles and silencers are in common use and are rarely used in crime. Removing them from the NFA would leave them still regulated under the Gun Control Act.

When I say that "Congress does not have the power to ban firearms," I am referring to constitutional power set forth in Article I, § 8.  There have been times, of course, when it has exercised power coercively without constitutional authorization, such as in enacting the ban on semiautomatic firearms in 1994.

The other articles in the issue, all of them thought-provoking, are as follows:

Michael Patrick, Bruen: The Court's Announcement of the Historical Analogy Test and the Aftermath Thereof

David B. Kopel, Machine Gun History and Bibliography

Joseph G.S. Greenlee, The Tradition of Short-Barreled Rifle Use and Regulation in America

Charles K. Eldred, The National Firearms Act is an Unconstitutional Tax

Tom W. Bell, The Counter-Militia Second Amendment

Like Rodney Dangerfield, NFA firearms "Don't Get No Respect" by many courts.  Single-shot .22 rifles are the favorite tool of drug traffickers if they have a 15-inch barrel, and a sound moderator is an assassin's best friend if it reduces decibels just a tad.  They have guilt by association because Congress put them on the same list as Tommy Guns.  But not all NFA firearms are created equal.

Kudos to George Mocsary, Director, and Ashley Hlebinsky, Executive Director, of the Firearms Research Center for making the symposium a success.

Comments

[Michael Ejercito]

I wonder why Franklin Roosevelt had hostility against firearms.

[Soronel Haetir]

Unfamiliarity?

[Absaroka]

If he had questions he could have asked Eleanor.

[Brett Bellmore]

It's the usual: You're going to do things that piss a lot of people off, you want those people disarmed.

[A Japanese Student]

One small note: NFA does not ban machineguns. (It is GCA.)

[Seaboltm]

Actually the GCA does not ban machine guns. The Hughes amendment to the GCA prohibited the manufacturing of machine guns post 1986. I would guess the Hughes amendment is unconstitutional

[arch1]

And a good thing, too. Gotta have that broad access to high efficiency slaughter machines.

[Speaking for normal people]

This kind of nonsense infuriates most people I know.
YOU would have thsoe slaughter machines taken from those who would use them ( Biden talk) and then feel wonderful that a man who would gladly kill children doesn't have a gun (more Biden talk) and yet it bothers you not a bit that men who would gladly slaughter children are walking around gunless ( Kamala talk) !!!!!! What about the only real problem in all this, the existence of psychos who still want to destroy lots of innocent people (Kamal and BIden blindness)

[Brett Bellmore]

It's kind of amusing.

Actual killings using machine guns are so rare we go years between them, so it's not like those "high efficiency slaughter machines" see much use for high efficiency slaughter. They're almost entirely used for efficiently converting paychecks into spent ammo.

But it's called law en"force"ment for a reason. Laws are violently enforced, particularly gun laws, even when the crimes themselves might be non-violent.

So, really, you're advocating actual violence to avert hypothetical violence. Your policy preferences increase the amount of violence, not reduce it!

[Brett Bellmore]

It prohibited the sale to private citizens of machine guns manufactured post 1986. Obviously the army will tell you that machine guns are still being manufactured. A couple of years ago I did a plant tour at the FN plant not so far from here. Very interesting.

[Brett Bellmore]

United States v. Rock Island Armory, Inc., 773 F. Supp. 117 (C.D. Ill. 1991)

"Since its passage in 1934, the registration, taxation, and other requirements of the National Firearms Act ("NFA") have been upheld by the courts under the power of Congress to raise revenue.[5] However, 18 U.S.C. § 922(o), which became effective on May 19, 1986, prohibits possession of machineguns, and thereby repealed or rendered unconstitutional the portions of the National Firearms Act which provided for the raising of revenue from the making, possession, and transfer of machineguns made after such date. As the government conceded at oral argument, the United States refuses to register or accept tax payments for the making or transfer of machineguns made after 1986.[6] Thus, *119 § 922(o), as applied to machineguns made after May 19, 1986, left the registration and other requirements of the National Firearms Act without any constitutional basis."

This ruling didn't do the defendant a lot of good, and I wouldn't rely on it, since Congress DID some time after the NFA presume to actually "ban" the firearms in question. They'd just charged this dude under the wrong law.

But I thought it worth pointing out that a court actually HAS ruled that the NFA was constructively repealed in regards to any firearm where the government refuses to accept payment of the 'tax'. Which is consistent with the original supreme court ruling that the NFA was constitutional because the Court would not consider the idea that a tax was actually a ban so long as any revenue at all could potentially result from it.

[Longtobefree]

Yet another revenue source to balance the federal budget.
Tax all speech, including written, spoken, and performed, at one cent per word. All we have to do is figure out a formula for performance speech; maybe so much per minute.

[Brett Bellmore]

Right, and you can tax specifically disfavored combinations of words at a much higher rate.

After all, so long as it promises to produce any revenue at all, the Supreme court assures us it's not really a ban.

[wvattorney13]

That's what I came here to post. Those NFA cases were decided before Heller. The government cannot generally tax a protected constitutional right (more than general taxation). Imagine a special tax on religious books only, or pre-Dobbs a $1k tax on abortions.

Those would clearly be seen as an attempt by the government to impede the exercise of a constitutional right. The NFA should be struck down for that reason.

[Brett Bellmore]

But it's not going to be by the Roberts Court. Of that you may be very certain.

[MollyGodiva]

Few thoughts:
1 NFA is obviously not about revenue generation. If it were than I should be able to walk into a gun store and buy a suppressor just by paying the retail price plus tax.

2. $200 was a much larger sum of money in 1934 that today, which would be worth about $4000.

3. Those legislators and FDR were seeing a huge shift in gun technology. In the late 1800s semi-automatics were not common. The 9 mm was not invented until 1901. In 1934 semi-autos were becoming more common, carbine sized machine guns were available, but even until WWII the standard army rifle only had an 8 round clip. Polymers in guns, the 5.56 round, AKs, and ARs were decades away. The average gun owner had bolt action rifles, revolvers, and maybe a Luger or 1911. They were seeing a revolution in gun technology and wanted to put a stop to it. Gun technology in 1934 was an order of magnitude more advanced then the lat 1800s, and it is two orders more advanced now.

4. Obviously they failed. But I sometimes wonder how things would be different now if much stricter gun control became widespread before gun ownership grew to what is is now, and before the legal concept of individual right had taken hold.

5. Big parts of the NFA are stupid. An AR is as deadly or more so than a fully automatic weapon, but ARs are quite legal and machine guns are almost unavailable. Suppressors, which do not change the lethality of a gun are regulated. And their distinction between an AR pistol and a SBR is arbitrary on nonsensical.

[Brett Bellmore]

1. Well, yes. if you look at the case that upheld the NFA, Sonzinsky, the Court didn't say it was adopted to generate revenue. They said that they wouldn't entertain any other notion so long as it was capable of generating at least some revenue. "Neener neener, la la la, we don't see anything, and you can't make us!"

EVERYBODY knew it was just the closest thing Congress thought they could get to a ban under (Since disposed of by the Court) limits on Congressional power. Since the Court had already endorsed the same approach to banning drugs.

2. Yeah it was about a ten thousand percent tax on the suppressors, even on the machine guns themselves it was over a thousand percent. The idea was that almost nobody would be able to afford to pay the tax, except for some rich people who the government didn't care about.

3. The federal government was, for the first time in history, starting to become hostile to gun ownership. They wanted firearms technology to continue advancing, but only for the government. It was part of the whole shift in the culture of our political elite towards centralized control and a strong European style state.

4. First of all, firearms ownership isn't really that much more common today than back then. Secondly, stop with the gun controller historical revisionism, there was never a time when people thought the 2nd amendment WASN'T about an individual right.

In the middle of the 20th century there was a legal fad of pretending the 2nd amendment wasn't about an individual right. It never spread much beyond the legal community, the public never bought it.

5. Indeed, the NFA WAS stupid. The '94 AWB was equally stupid. Gun control laws in general tend to be stupid.