Lawsuit Filed Challenging The National Firearm Act

Back in 1934, frightened of how the populace was reacting to the economy being destroyed during the Great Depression, Congress considered a bill intended to disarm the populace of weapons necessary to overthrow a corrupt government or which it viewed as being popular with assassins: restricting access "destructive devices" (e.g., explosive shells and grenades, mortars, etc.); automatic weapons; short-barrel shotguns; short-barrel rifles; sound suppressors; and handguns. The restrictions on handguns was pulled from the final bill (Congress would try again with the Gun Control Act of 1968), but the rest went on to be regulated under the National Firearms Act (NFA). 

    Because the courts at that time were intellectually honest enough to understand that the Second Amendment protected against any actions by the federal government to restrict arms--including (or especially) military arms--Congress believed the only way the NFA could pass Constitutional muster was to frame the NFA as a tax and, therefore, the reason for the $200 tax on most NFA items. 

    Which brings us to an article from the Shooting News Weekly entitled, "ASA, NRA, SAF, FPC File Lawsuit Challenging the Constitutionality of the National Firearms Act," which explains:

    ... If you’ll remember, back in June when the Big Beautiful Bill was being haggled over, there was much sturm und drang over the existential nature of the National Firearms Act, and how the Senate Parliamentarian would treat efforts to pull items like suppressors and SBRs out as part of the reconciliation process. Again, reconciliation measures can sidestep the Senate’s 60-vote requirement and pass with a simple majority.

    As many pointed out, the courts and the DOJ had for decades made the case that the NFA is tax measure. ... That being the case, inclusion of both the SHORT Act and the Hearing Protection Act in the B³ should have been a no-brainer.

    The Senate Parliamentarian, however, saw things differently and ruled them out. That’s why, instead of pulling suppressors, SBRs and SBSs out of the NFA and regulating them like any other firearm you can buy today, the only step forward included in the final version of the B³ was the elimination of the $200 tax stamp (which will take effect on January 1).

    But wait. Zeroing out the tax stamp isn’t nothing. As we and others have pointed out, eliminating the tax stamp undercuts any remaining argument that the NFA is a tax…because there is no longer a tax involved. On top of that, cans and SBRs are in common use. That means they pass the Heller test. There’s also no text, history or tradition of regulating them which means doing so doesn’t pass the Bruen test.

    Long story short…the NFA is now very constitutionally vulnerable. Yesterday, four gun rights orgs filed a lawsuit in the Northern District of Texas — part of the gun-friendly Fifth Circuit — making exactly that case.