I’ve written a lot about the Department of Justice’s schizophrenia on NFA registration of things like suppressors and short-barreled long guns. The registration was, originally, nothing more than a list of who paid the NFA tax. It was there so law enforcement could check and see if the suppressor they found was lawfully owned or not.
Now that there’s no tax stamp on such devices, the registry has outlived its purpose.
Easy enough, right?
The problem is, though, that the DOJ that is going after everyone else over unconstitutional gun control laws is defending this travesty. Mark Smith of Four Boxes Diner, however, pointed out a major problem in the latest filings.
Following the Wolford decision, both sides were tasked by the court with explaining how Wolford impacts this case. The DOJ basically said it didn’t, but that’s not entirely true.
DOJ attempts to distinguish Wolford by arguing that the case concerned where firearms may be carried, while Brown concerns what weapons the government may regulate.
The brief states:
“Wolford thus concerns how a government may permissibly regulate where firearms are possessed.”
According to DOJ, that question is “conceptually distinct” from the issues presented in Brown. But that framing sidesteps the central point raised by Smith.
Wolford did more than strike down Hawaii’s default ban on carrying firearms on private property open to the public. The decision also clarified the sequence courts must follow under New York State Rifle & Pistol Association v. Bruen.
First, courts examine the Second Amendment’s plain text. Does the law apply to “the people”? Does it concern “Arms”? And, does it restrict keeping or bearing those arms? When the text applies, the challenged law is presumptively unconstitutional. The government must then establish that its restriction is consistent with the Nation’s historical tradition of firearm regulation. That division between text and history matters enormously in Brown.
The government wants courts to place the “common use” question at the first stage, forcing gun owners to prove that a particular weapon is sufficiently popular before the burden ever shifts to the government. But whether an arm is “dangerous and unusual” is a historically derived limitation. It belongs in the historical inquiry, where the government bears the burden.
As Justice Amy Coney Barrett explained in her Wolford concurrence, courts may not “smuggle additional limits” drawn from regulatory tradition into the plain-text stage.
Smith’s criticism is straightforward: DOJ is doing precisely what the Supreme Court warned courts not to do.
Smith’s video here:
Honestly, he’s right.
Wolford was about the whole vampire rule nonsense, but the Court used the opportunity to clarify the steps lower courts were to use when considering gun rights cases. Does the registry deal with the people and with arms? Yes.
As such, it’s presumptively unconstitutional. It’s up to the government to now show how maintaining this registry, absent the tax stamp requirement, is consistent with the history or tradition of firearm regulation in the United States, particularly around the time of the Second and Fourteenth Amendments’ ratification.
I honestly don’t see how they can do that in the least, so to say that Wolford had no impact on this particular case is, well, beyond ridiculous.
I expected better out of the Trump DOJ, but I haven’t seen it on federal gun laws of any stripe. This one, in particular, is especially egregious since the law that ended the tax stamp requirement was signed by President Trump this term. There’s no reason for this stance.
None.
Editor’s Note: The radical Left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
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