Fifth Circuit Home Distillery Opinion Could Strengthen NFA Challenges

AmmoLand ^ | April 13, 2026 | Dean Weingarten

[marktwain]

On April 10, 2026, a three-judge panel of the Fifth Circuit issued its opinion in Morris v. DOJ, reinforcing a longstanding constitutional limit on Congress’s taxing power: it may impose taxes that raise revenue, but it cannot simply prohibit conduct under the guise of taxation.

The reasoning and precedents cited in Morris could bolster challenges to the constitutionality of the NFA’s registration scheme for suppressors, SBRs, SBSs, and AOWs now that the making and transfer tax on those items has been reduced to zero.

The case in the Fifth Circuit is Morris v. DOJ. It concerns the federal ban on home distilleries, enacted in 1868. The ban does not require a person to pay a tax on producing distilled spirits at home. Instead, the law prohibits home distilleries altogether.  The relevance is that there is no tax to be paid. From page 12 of the decision:

  “Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more.” 

The NFA has always been justified under the authority of Congress to raise taxes. It has not been justified as an authority given to Congress by the interstate commerce clause. This was emphasized by Franklin Delano Roosevelt’s Attorney General, Homer Cummings, as shown in a previous article on AmmoLand:

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TOPICS:
KEYWORDS: banglist; court; distillery; nfa; tax

[marktwain]

The taxing authority is to tax, not to regulate. A person has to be able to, at least theoretically, pay the tax for the authority to be valid.

[marktwain]

NFA is the National Firearms Act of 1934.

[Celtic Conservative]

I wonder if they could use this same case to go after what’s left of obamacare. That’s a regulation cosplaying as a tax too. And like the NFA, the fee was eliminated in 2019.

CC

[rlmorel]

"... may impose taxes that raise revenue, but it cannot simply prohibit conduct under the guise of taxation..."

This is an interesting subject, because it is a well known phenomenon that the more you tax something, the less of it will exist.

I could be wrong here, but see a distinction:

Conservatives may accept taxation, but if we do, it is to power Constitutionally codified functions of the Republic.

Leftists approve of taxation for purposes that may not be Constitutionally delineated, but a large component of their approval of taxation is to diminish behavior they don't like or to engineer an outcome they desire.

For example, the environmentalists (Leftists) love taxes on energy to force behavior patters to reduce the consumption of energy.

They fully support onerous taxation of firearms and ammunition, and wish to tax it so heavily that it drives behavior, reducing firearm availability and in their hopeful minds, firearm ownership.

I could go on and on, but it seems to me to be nearly a cleavage line between Conservatism and Leftism: We use taxes to fund functionality. They use taxes to coerce behavior.

[Deaf Smith]

>>the less of it will exist.

————————-

Just like the taxes on tobacco is to regulate tobacco use.

With chewing tobacco being taxed by weight, plug tobacco and pouch tobacco had gone away.

[rlmorel]

Yes. It is clear that it DOES work, but in the case of tobacco, not just taxation, but a full frontal assault by the Media and Education on smoking beginning in earnest in the Sixties.

It is interesting to note that even with extremely onerous taxation of tobacco products to the point of ridiculousness, there are still new generations of consumers who will pay the exorbitant prices for a pack of Marlboros or a pouch of Red Man.

[algore]

Back in the 80s I remember you were required to get tax stamps for your baggies of marijuana, and if you did not have them you could get busted for tax evasion as well as whatever other penalties for selling an illegal substance.

I think those stamps are collectors items today

[JimRed]

That is why, in states where recreational marijuana is legal, you are forbidden to grow your own. Gotta have those taxes!