I think I should have been more specific—the Supreme Court has only addressed the constitutionality of the NFA under the Second Amendment once, in Miller.
There was no Second Amendment challenge in Haynes or Freed. In Haynes, the Supreme Court held only that a registration requirement then in place in the NFA violated the 5th Amendment prohibition against self-incrimination. In Freed, the Supreme Court held that a subsequent change to the NFA cured the 5th Amendment violation found in Haynes. The Second Amendment was not mentioned in either case.
Heller did not involve the NFA at all. It was only mentioned in Heller’s discussion of the holding in Miller, where the Heller court narrowly read Miller to hold “only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.”
The Supreme Court did not have an opportunity to address the NFA’s constitutionality under the Second Amendment in Haynes, Freed, or Heller because no Second Amendment challenge to the NFA was asserted in any of those cases. The Supreme Court, like any court, can only address issues that are placed before it by the litigants, other than issues of its own jurisdiction.
Makes you wonder why Haynes and Freed didn’t attack the NFA on Second Amendment grounds.
Makes you wonder why Haynes and Freed didn’t attack the NFA on Second Amendment grounds.