Will Recent SCOTUS Rulings Bolster NFA Challenge on Suppressors?

When the National Firearms Act was defended before the courts, the argument was that it wasn’t gun control. It was a tax. The only reason for registration, you see, was simply to make sure the tax was paid. Seems reasonable enough, at least from a legal standpoint. Taxes are, unfortunately, legal, even if they are theft, and having a way to verify the tax was paid on an item makes sense so as not to penalize people for non-payment after they’d paid.

But now the tax is gone, dead as Hillary Clinton’s presidential dreams.

The registration, however, is still a thing. At least for now, though a lawsuit is challenging that, and the folks at Texas Gun Rights figure that some recent Supreme Court decisions will help with that case.

The supplemental filings point to Landor v. Louisiana Department of Corrections & Public Safety, Wolford v. Lopez, and United States v. Hemani.

Each decision addressed a different legal dispute. None directly decided the constitutionality of the NFA.

But the plaintiffs argue that the principles announced in those cases bear directly on the government’s defenses in the pending NFA litigation.

Together, the decisions strengthen three central arguments:

• The Necessary and Proper Clause cannot be transformed into an independent federal police power.
• Courts must begin with the Second Amendment’s plain text before considering historical restrictions.
• Registration and licensing cannot be treated as interchangeable simply because both involve government paperwork.

 

The Jensen plaintiffs presented those arguments in a July supplemental filing in the consolidated Silencer Shop Foundation v. ATF litigation pending in the Northern District of Texas. Similar filings were submitted in the Roberts and Brown cases.

The Necessary and Proper Clause Has Limits

The government has argued that NFA registration may remain constitutionally permissible as a means of supporting taxes that still apply to manufacturers and dealers.

The plaintiffs respond that this theory would stretch the Necessary and Proper Clause far beyond its proper role.

That clause allows Congress to enact measures needed to carry out powers specifically granted by the Constitution. It does not give Congress a general authority to regulate any activity it chooses.

This is absolutely correct, because while Congress does have the authority to enact laws to carry out constitutional powers, and taxation is one of those powers, the fact that there’s no longer a tax on individuals means that there is no longer sufficient authority to register people who buy suppressors and short-barreled long guns. The registration is no longer a necessary and proper part of the taxation process, thus unconstitutional.

The second bullet point is perhaps the most important. The plain text of the Second Amendment is just 27 words, and yet it’s the subject of so much interpretation and misinformation by anti-gunners that one could almost forgive judges for being confused.

Almost.

They’re supposed to know better, though, and far too often post-Bruen, they immediately jump into the historical restrictions and trip all over themselves to justify new ones without considering the actual text of the Second Amendment. Wolford’s defense was rooted in blatantly racist laws intended to prosecute black men and women in the Deep South during Reconstruction. The Second Amendment’s text, though, is what matters, rather than whether an ill-advised and blatantly unconstitutional law during dark periods of American history existed.

The last bullet point is interesting to me.

See, one defense of NFA’s registration of suppressors is that, because the approval is automatic, it’s kind of like a “shall issue” licensing scheme. The problem is that a license is used to determine whether someone meets objective qualifications for a particular action. Registration is a tracking mechanism, as Texas Gun Rights points out.

Of course, they also note that none of these pertain to the National Firearms Act itself, but I think they make some pretty good points. Will other judges agree? That remains to be seen. I’d say that I see it as a slam dunk, but I’m more than a little biased on the matter. I want to be able to order suppressors from Amazon and get them the next day with Prime shipping, no background check, and absolutely nothing else. I also want to see the NFA dead in a ditch somewhere outside of Reno.

But that’s just me.

Still, it’ll be interesting to see how these three cases impact the suppressor challenge, and I sincerely hope Texas Gun Rights is correct in their reading of the tea leaves.

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