The Volokh Conspiracy
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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.
