There’s a Very Good Reason the NFA is Under Attack

The National Firearms Act of 1934 created a process and fee for anyone wishing to purchase certain firearms. While it wasn’t going to impact, say, hunting rifles (bear with me here), the early drafts of the law included little things like handguns, which would have really done a number on the future of the gun culture.

While there’s not likely to be much legislative desire to repeal the NFA, there was to remove the tax on short-barreled long guns and suppressors.

That’s why the NFA, at least parts of it, is under attack right now. 

Jacob Sullum, over at Reason, gets into a lot of the reasons why.

Testifying in favor of the National Firearms Act (NFA) in 1934, Attorney General Homer S. Cummings noted that the federal government “of course” had “no inherent police powers to go into certain localities and deal with local crime.” Rather, “it is only when we can reach those things under the interstate commerce provision, or under the use of the mails, or by the power of taxation, that we can act.”

Cummings explained how “the power of taxation” worked in this context: “If we made a statute absolutely forbidding any human being to have a machine gun, you might say there is some constitutional question involved. But when you say, ‘We will tax the machine gun,’ and when you say that the absence of a license showing payment of the tax has been made indicates that a crime has been perpetrated, you are easily within the law.”

… The Supreme Court applied similar logic in the 1937 case Sonzinsky v. United States, ruling that the NFA was a valid exercise of the tax power. The law imposed a $200 tax on transfers of the covered products, which was meant to be prohibitive, amounting to more than $4,800 today. The NFA also required dealers to pay an annual tax of $200—the provision at issue in Sonzinsky—and imposed registration requirements on dealers and owners, ostensibly to facilitate tax collection. It authorized fines and imprisonment for anyone who failed to register or failed to pay the tax.

“The Constitution made no grant of authority to Congress to legislate substantively for the general welfare, and no such authority exists, save as the general welfare may be promoted by the exercise of the powers which are granted,” the petitioners in Sonzinsky noted. “Under the American constitutional system, the police power, being an attribute of sovereignty inherent in the original States, and not delegated by the Federal Constitution to the United States, remains with the individual States.” They argued that “a mere reading of the National Firearms Act discloses that it was enacted for the purpose of regulating or suppressing traffic in the firearms described in the Act; that it was not enacted for the purpose of collecting any taxes; that it was passed as a police measure, as an aid to local law enforcement, and not as a revenue law.”

Writing for a unanimous Court, Justice Harlan Stone rejected the argument that the NFA was a ban disguised as a tax. “The case is not one where the statute contains regulatory provisions related to a purported tax in such a way as has enabled this Court to say in other cases that the latter is a penalty resorted to as a means of enforcing the regulations,” he wrote. “Nor is the subject of the tax described or treated as criminal by the taxing statute.”

So the question becomes, when did it become a ban? When did it become anything other than a tax?

The answer to that is that it never became anything but a tax. Yes, it was a gun control measure, but it was gun control through taxation. The $200 tax was thought to be prohibitive, as Summum notes above. Nearly $5,000 is more than many of us could or would pony up just to have a firearm that could shoot a little faster or a little quieter.

The fact that there was no mechanism for increasing the fee except through an act of Congress has kept the rate where it was, thankfully, is largely irrelevant to the fact that it was always intended as a tax, not a ban. That’s how everyone who ended up supporting the measure sold it. It’s how it was defended. It’s how it was upheld by the Supreme Court.

The registration is nothing more than proof that you paid the fee.

So why does it remain? The answer is simply because anti-gunners never saw the NFA as anything but a restriction on ownership. It was a burden that had to be cleared, and the idea that certain firearms might be available without it bothers them on a visceral level because they can’t tolerate any perceived loosening of gun laws.

But their feelings aren’t relevant to anything.

The simple facts are what they are. The NFA is a tax first and foremost, and with the repeal of the tax requirement for SBRs, SBSs, and suppressors, there’s literally no justification for continuing to require registration for these items. Not under the law and legal precedent, anyway.

Granted, this would have gone smoother if they’d just been removed from the NFA entirely in the One Big, Beautiful Bill, but alas, they weren’t, and here’s where we are with this. 

And with Stone’s comments, I really find it difficult to believe that anyone can legitimately find sufficient legal precedent stating that no, the NFA was always intended to be exclusively about registration of these guns, and thus the rest of the process for possessing these items should remain in place. I had to say “legitimately” because I’ve seen too many federal judges rationalize all sorts of things into existence, but I stand by what I said.

Here’s hoping the courts will see it the same way in the long run.

Editor’s Note: President Trump and Republicans across the country are doing everything they can to protect and restore our Second Amendment rights and right to self-defense, such as removing the NFA tax stamp on a handful of items.

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