You have to love the strategy. 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’s how its primary champion justified it as not infringing on Americans’ gun rights when the NFA was being considered back in 1934. 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.
From the American Suppressor Association . . .
Today, The American Suppressor Association (ASA), National Rifle Association (NRA), Second Amendment Foundation (SAF), and Firearms Policy Coalition (FPC) announced the filing of a lawsuit challenging the constitutionality of the National Firearms Act of 1934 (NFA). The case, Jensen v. ATF, was filed in the U.S. District Court for the Northern District of Texas.
This complaint asserts that, with the removal of the excise tax on constitutionally protected arms like suppressors and short-barreled rifles, the NFA registration regime can no longer be upheld as a legal exercise of Congress’s taxing power.
The lawsuit also contends that the NFA registry on protected arms constitutes a violation of the Second Amendment. The Supreme Court has ruled that all firearms regulations must be consistent with our nation’s historical tradition of firearm regulation. According to the plaintiffs, there is no such tradition that supports the NFA’s registration regime.
The plaintiffs in the case include the Texas State Rifle Association, FPC Action Foundation, Citizens Committee for the Right to Keep and Bear Arms, Hot Shots Custom LLC, and three individuals.
The totalitarian left is relentless. Grab guns, money, power everywhere and every opportunity.
The legal logic is undeniable. The majority on the Court won’t care. They’re not terribly interested in striking down federal laws on a good day, and it’s never a good day when the 2nd amendment is in front of them.
Rahimi taught us that.
And as we saw with Obamacare, Roberts has some odd ideas about taxes. He is fully capable of saying a tax of 0 is still a tax.
Actually, zeroing the penalty “tax” on not having health insurance was exactly how Republicans in Congress got the Supreme Court to agree that the Obama care insurance mandate was unconstitutional. That was their workaround in 2018 after Senator McCain joined the Democrats to shoot down the repeal of Obamacare.
“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.”
The tax has been officially set at $0.00. To become totally tax free, the lawyers/legislators could have written language that removed the word “tax”, or an amount. That the legislators/lawyers chose not to do that tells the tale.