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Posted on 07/14/2025 7:08:04 AM PDT by george76
America’s oldest gun control law is once again in peril...
President Donald Trump’s big, beautiful bill has brought a big, beautiful opportunity to Second Amendment advocates. By zeroing out the tax on certain guns and accessories mandated by the National Firearms Act, this controversial legislation raises a crucial constitutional question: Since a $0 tax generates no revenue, is it even a tax? Many argue it is not – and, therefore, the NFA is no longer a tax law. That’s precisely the approach taken by a new lawsuit from Gun Owners of America and several other enthusiasts of the right to keep and bear arms.
Why is that important? The law’s status as a tax is the only reason it was ruled constitutional to begin with in its first Supreme Court challenge so many years ago.
Dollars and Sense..
When Congress passed the National Firearms Act in June of 1934, what Franklin D. Roosevelt signed into law was not a ban on certain items, as many people seem to think. All involved understood that would be unconstitutional and that, even with anti-gun Democrats holding the trifecta of power in Washington, DC, it wouldn’t pass muster. Instead, a heavy (for the time) tax was imposed on these items, which, therefore, justified a registry to track who had paid said levies.
Under the NFA, transferring ownership of machine guns, destructive devices, short-barreled shotguns (SBSs), short-barreled rifles (SBRs), and silencers all required the payment of a $200 fee and subsequent registration. It was a long, drawn-out process – deliberately slow, one might surmise – and it was prohibitively expensive. Adjusted for inflation, $200 in 1934 had the buying power of $4,782 today.
To put that into perspective even more, a Thompson submachine gun with a 20-round stick magazine cost about $200 at the time. That was already expensive – the average revolver would only set you back $20 to $35, and a basic Springfield double-barrel shotgun would have cost you just over $15. For that matter, a brand-new Ford car ran about $400. But back to the Tommy gun – doubling the price of an already expensive item was devastating to the “right” to own it. Oh, sure, it was still legal to buy them – but instead of forking over $200, it was then $400 – about the price of a new car at the time, and the 1934 equivalent of nearly $9,600 in modern money.
As you might imagine, this effectively “banned” the already expensive machine gun for most Americans. And that was precisely the point – a point, by the way, the Supreme Court supported in 1937.
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“[A]ccording to Justice Harlan Fiske Stone and the rest of the majority on the 1937 Supreme Court, it is, in fact, a tax – and that’s what makes it constitutional. Writing for the majority, Stone explained: ‘In the exercise of its constitutional power to lay taxes, Congress may select the subjects of taxation, choosing some and omitting others.’ Furthermore, he argued: ‘Every tax is in some way regulatory. To some extent, it interposes an economic impediment to the activity taxed, as compared with others not taxed. But a tax is not any less a tax because it has a regulatory effect … and it has long been established that an Act of Congress which, on its face, purports to be an exercise of the taxing power is not any less so because the tax is burdensome or tends to restrict or suppress the thing taxed.’”
Buying a machine gun is still prohibitively expensive for most folks, thanks largely to updates to the NFA over the years that severely limit one’s options, but the issue with silencers, SBRs, and SBSs is a little different. One could build three entirely different classifications of AR-15 style guns by buying all the same parts in triplicate except for the barrels and stocks. Put a 16.5-inch or longer barrel on the weapon with a buttstock designed to press against the shoulder, and you have a rifle. For build number two, go with a 12- or 14-inch barrel and a pistol brace instead of a stock, and you have an AR pistol.
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Both are entirely legal – but build out the third gun with a pistol-length barrel and the rifle stock, or even the pistol brace and a vertical foregrip, and what you have is an SBR. Three firearms that may be no more than two inches different from each other in length, that fire the exact same round at almost the exact same velocity, but one is a felony if not registered with the federal government.
More Than One Way to Gut the NFA..
In the House-passed version of the big, beautiful bill act, SBRs, SBSs, and silencers were simply removed from the NFA. That went out the window, however, when Senate Parliamentarian Elizabeth MacDonough ruled it violated the Byrd Rule, which prohibits the inclusion of anything not budget-related in a budget reconciliation bill. That was an odd ruling, given the 1937 Supreme Court decision – and that may have been, perhaps, grounds for a lawsuit in of itself. But ultimately, that approach may prove unnecessary.
As the grotesque old saying goes, there’s more than one way to skin a cat. In reality, there probably isn’t more than one effective and practical way for that grim task – but, as luck would have it, there is apparently more than one way to gut the NFA.
Gun Owners of America, the American Suppressor Association, the National Rifle Association, Firearms Policy Coalition, and Second Amendment Foundation – along with some others – have launched, as the NRA put it, “a new strategic lawsuit to challenge the constitutionality of the NFA in Federal Court.”
Here’s their approach: The 1937 Court ruled that the NFA was legal because it was a tax – and that the “validity” of taxes “laid to raise revenue” is “beyond question.” So, we have the NFA defined as a tax – and the constitutional authority of Congress to lay taxes defined as raising revenue.
But what revenue does a $0 tax raise?
Since no money can be made on these items now, that portion of the NFA is no longer a legitimate tax, plaintiffs argue, and if it isn’t a tax, it isn’t constitutional. While in practice the National Firearms Registration and Transfer Record is a federal registry of those who own certain types of firearms, it’s nominally a registry of those who have paid the $200 transfer tax. Therefore, by the suit’s logic, it too must go.
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I would have preferred an outright repeal of the NFA, along with the rest of the unconstitutional Federal legislation, most notably the 1968 GCA.
But, politics is the art of the possible, and this is the first time a meaningful chunk has been taken out of the NFA. It’s a first step, but a win is a win.
The story of rolling back unconstitutional restrictions on the right to carry is what we should be remembering, imho. Many of us are old enough to remember the ballyhoo that surrounded the 1987 Florida “Shall Issue” law. It wasn’t always an easy road, but today, 29 states, roughly 60% of the US, has some form of Constitutional Carry, and everyone else has “shall issue”. Some blue states are still trying to defy Bruen, but it’s an uphill battle for them, and they’re losing.
One thing that I’ve heard in my long journey among RKBA advocates is that we shouldn’t even have to endure this fight, and while that is true, my answer has always been “so what?” The fight is here, we can either let the over-reaching leftist apparatchiks win, or we can fight. What’s encouraging is that we’re winning, and have been now for decades.
So, in the next congress, or the one after that, SBR’s and Suppressors can be removed from the NFA. Followed by full-auto, followed by removal of the rest of the infringements which are so abhorrent to the constitution. If it can’t be done all at once, i’ll take piecemeal until the job is finished.
And then we have to stand guard on the wall for eternity, because the forces of tyranny never sleep.
Yeah, and Obamacare was or wasn’t a tax also. Didn’t change a thing.
What’s more likely? That the courts will say “you got us, now all NFA is over, go buy machine guns, silencers, saw off shotguns, make grenades… whatever “, OR, now that the tax was disconnected from a 1934 arbitrary number, that they’ll bump it up to 5000 soon?
Bringing the red to zero is a joke. The onerous part was not the 200 bucks. It’s the legalities and special rules.
Only a simpleton calls this a win
Bringing the red to zero is a joke. The onerous part was not the 200 bucks. It’s the legalities and special rules.
Only a simpleton calls this a win
Folks,
I am all for gun rights. But along with rights comes responsibilities.
How do we address the responsibilities?
The senate has stated, via the parliamentarian, that the NFA tax is not for the purposes of revenue generation in support of the budget. Now the entire constitutional argument for the NFA has collapsed and the courts must revisit the issue.
Since the NFA and GCA was imposed under the government’s power to tax, if no tax is collected can they still demand the other legalities? There is no longer a tax collected to supposedly give them the authority, is there?
Since the NFA and GCA was imposed under the government’s power to tax, if no tax is collected can they still demand the other legalities? There is no longer a tax collected to supposedly give them the authority, is there?
One just needs to go to a hood rat infested inner city high school to get a machine gun. All the kids have giggle switches on their Glocks.
Murder is illegal. Assault with a deadly weapon is illegal. Brandishing a deadly weapon is illegal. Armed robbery is illegal. Reckless endangerment is illegal. Discharging a firearm within city limits is illegal. Numerous laws and rules govern the use of firearms in hunting.
The responsibilities are well covered.
Refreshing (or horrifying, I can’t decide) that less than a century ago, even Dems conceded that straight-up gun bans would be unconstitutional, or at least politically unfeasible. I mean, they still looked for an end run, but at least they conceded the obvious.
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