How NFA Ruling Shut Down Congress’s Dirty Trick to Exceed Its Authority

The ruling against the NFA, which focuses on suppressors and short-barreled long guns, was a huge deal, and yeah, we’re still talking about it. That’s for a very good reason.

Speaking of Reason, Jacob Sullum over there has covered a lot of Second Amendment cases. He’s pro-gun, and he writes about this from a libertarian perspective because, well, he writes for Reason.

In a piece about the Jensen ruling, he points out something important. He notes how the Trump administration tried to justify the NFA registration under the same clause Congress likes to use to regulate a bunch of other things they have no business regulating.

The Supreme Court blessed that pretext in 1928, upholding the Harrison Act on the grounds that it raised “substantial revenue,” consistent with its advertised purpose. But as Hendrix noted, Congress broke that thin reed when it eliminated the taxes on most NFA-regulated products.

The Trump administration argued that the NFA regulations could still be justified under the Commerce Clause. Hendrix, a Trump appointee, disagreed, saying the government “cannot employ post-hoc justifications to save a statute based on an enumerated power that Congress never invoked.”

Nowadays, of course, Congress relies on the Commerce Clause to enact all sorts of regulations that were once viewed as beyond its scope, including laws criminalizing conduct that is neither interstate nor commercial. “If Congress can regulate this under the Commerce Clause,” Justice Clarence Thomas warned in a 2005 case involving medical marijuana grown and consumed in California, “then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.”

Hendrix’s decision is a welcome reminder of that fundamental principle. But since 1934, Congress has found a new excuse to justify almost anything it wants to do.

And this isn’t the first time this argument has been applied to a Second Amendment case.

In 1990, Congress passed the Gun Free School Zones Act. It barred anyone from carrying a firearm in a school zone, just like the label on the bottle said. The law was thrown out in 1995 when the United States Supreme Court ruled in United States v. Lopez that Congress overstepped its authority. The rationale the government used was that so-called gun violence near schools impacted interstate trade and disrupted the learning environment.

That’s not how the Commerce Clause is supposed to be used.

The Founding Fathers gave the federal government authority over interstate commerce, not so Congress could twist it to mean literally anything it wanted. The authority was created to stop, say, North Carolina from instituting a tariff on products from South Carolina or anything like that. It was created to preserve free trade between the states, not to be used by future generations to figure that everything is economic, so everything is commerce and thus regulable by Congress.

And since this is a rationale that’s already been used to defend two gun laws, at least, this is something we should all be watching in the future.

It’s also a reminder that the tools they’ll use to dismantle our right to keep and bear arms will, in time, be used in all kinds of other awful ways.

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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