Second Amendment Roundup: NFA Restrictions Under Scrutiny
The National Firearms Act (NFA) has long been a subject of legal debate, particularly concerning its restrictions on certain firearms. Recent legal challenges are questioning the constitutionality of the NFA’s registration and other requirements, especially as they apply to firearms that now have a $0 tax, such as short-barreled shotguns (SBSs), short-barreled rifles (SBRs), silencers, and “any other weapons” (AOWs). While machine guns and destructive devices remain subject to a $200 tax, the legal landscape surrounding the less heavily taxed items is shifting, prompting a renewed focus on the scope of the Second Amendment and Congress’s powers.
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The Legal Challenges to NFA Restrictions
Currently, several legal challenges are underway, aiming to dismantle the NFA restrictions on these specific firearms. Notable cases include Chris Brown v. ATF in the Eastern District of Missouri, Silencer Shop Foundation v. ATF in the Northern District of Texas, and Jensen v. ATF, also in the Northern District of Texas. These cases directly challenge the ATF’s authority to regulate firearms now subject to a $0 tax under the NFA, arguing that the regulations infringe upon Second Amendment rights. The plaintiffs in these cases are seeking summary judgment, asserting that the NFA’s requirements are unconstitutional as applied to these firearms.
In the Silencer Shop Foundation v. ATF case, the United States has responded to the plaintiff’s motion for summary judgment by filing an opposition and cross-motion for summary judgment. The government’s primary argument hinges on the idea that the NFA regulations, even for zero-taxed firearms, are justified under Congress’s tax power and the Commerce Clause. They argue that these regulations are essential for supporting the collection of special occupational taxes (SOT) on businesses engaged in the manufacture and sale of NFA firearms and that related activities in intrastate commerce substantially affect interstate commerce. Furthermore, the Department of Justice (DOJ) contends that the Second Amendment does not protect NFA firearms, including suppressors, because they are “dangerous and unusual,” a claim that is increasingly being challenged in light of the Supreme Court’s evolving Second Amendment jurisprudence.
The Government’s Justifications: Tax Power and Commerce Clause
The government’s defense of the NFA relies heavily on the Article I tax power, citing the Sonzinsky case (1937), which upheld the NFA’s special occupational taxes (SOT) applicable to NFA businesses. The government argues that the zero-taxed making and transfer requirements remain valid to ensure that NFA businesses are paying their SOT. However, critics argue that this justification stretches the tax power beyond its reasonable limits. They contend that the government already has ample means to ensure compliance with SOT obligations through inspections, investigations, and other procedures under Title I of the Gun Control Act (GCA), which requires firearm businesses to have licenses and be subject to inspection.
The argument against the government’s position is that it creates an unreasonable burden on individuals who acquire NFA firearms from licensed dealers. Under the GCA, firearms bought by non-licensees from Federal Firearms Licensees (FFLs) are not subject to licensing and are not required to be registered and regulated indefinitely to ensure that businesses are paying their taxes. In fact, 18 U.S.C. § 926(a) of the Gun Control Act actually prohibits the registration of firearms that are sold to non-licensees. The government’s expansive interpretation of the tax power could potentially lead to absurd scenarios, such as requiring registration of groceries to ensure grocery stores pay their taxes.
Historical Context and Inconsistencies
The government’s current position also appears inconsistent with its past stances. For instance, in 18 U.S.C. § 922(o), Congress banned the possession of machine guns made after May 19, 1986. Following this ban, the ATF refused to accept tax payments for and register such machine guns. The courts, including in U.S. v. Rock Island Armory (C.D. Ill. 1991) and U.S. v. Dalton (10th Cir. 1992), held that no constitutional basis existed for the registration requirement and dismissed indictments for unregistered machine guns under the NFA. The United States even conceded this point in U.S. v. Kirk (5th Cir. 1992), acknowledging that the defendant’s conviction under 26 U.S.C. § 5861(d) should be vacated.
Consequently, the United States Attorneys’ Manual instructs prosecutors not to charge individuals with NFA violations for post-1986 machine guns, as it is impossible to comply with the registration and taxation provisions. Instead, prosecutors are directed to charge the unlawful possession or transfer of such machine guns under § 922(o). This historical context highlights the government’s recognition that a firearm not subject to taxation should not be subject to the NFA’s registration requirements. The current legal challenges aim to extend this principle to other NFA firearms that are now subject to a $0 tax, arguing that the registration and other restrictions are no longer justified.
The Second Amendment Argument
Beyond the tax power and Commerce Clause arguments, the core of the legal challenges rests on the Second Amendment. Plaintiffs argue that the NFA restrictions on firearms like suppressors, SBRs, and SBSs infringe upon the right to bear arms. The Supreme Court’s evolving jurisprudence on the Second Amendment, particularly the emphasis on “common use” for self-defense, plays a crucial role in these arguments. If these firearms are deemed to be in common use for lawful purposes, the government’s ability to restrict them becomes significantly more limited.
The DOJ’s argument that NFA firearms are “dangerous and unusual” is increasingly difficult to sustain, given the growing popularity of suppressors and the recognition that short-barreled rifles and shotguns can be used for self-defense in certain contexts. The outcome of these cases will likely hinge on how the courts interpret the Second Amendment’s protections in light of the specific characteristics and uses of these firearms. A favorable ruling for the plaintiffs could significantly alter the landscape of firearms regulation in the United States.
Conclusion
The legal challenges to the NFA restrictions on zero-taxed firearms represent a significant test of the government’s authority to regulate firearms. The outcomes of cases like Chris Brown v. ATF, Silencer Shop Foundation v. ATF, and Jensen v. ATF will have far-reaching implications for gun owners and the firearms industry. As the courts grapple with these complex legal issues, the future of NFA regulations hangs in the balance, potentially reshaping the scope of the Second Amendment and the balance between individual rights and government authority.
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