Civil challenges have already commenced. A complaint filed in the Eastern District of Missouri, Chris Brown v. ATF, challenges the pertinent provisions of the NFA not only on the lack of Congressional power under the revenue clause, but also challenges the restrictions on suppressors and short-barreled rifles under the Second Amendment. Suppressors and short-barreled rifles pass the Heller test by being arms in common use, and NFA-type restrictions do not pass the Bruen text-history test. Plaintiffs also include the NRA, Firearms Policy Coalition, Second Amendment Foundation, and American Suppressor Association.
Missouri is in the Eighth Circuit, which in U.S. v. Hall (1999) upheld the NFA under the taxing clause, but rejected an argument that the commerce clause would be a constitutional basis for the NFA.
A second challenge, Silencer Shop Foundation v. ATF, has been filed in the Northern District of Texas. It is based solely on the lack of Congressional power to require firearm registration without any basis in the tax power. Gun Owners of America and Firearms Regulatory Accountability Coalition are among its plaintiffs.
As long ago as U.S. v. Matthews (1971), the Fifth Circuit relied on Sonzinsky to uphold NFA provisions. Not surprisingly, all circuits have rendered similar decisions.
I’ve covered these issues in detail in my article The Power to Tax, The 2nd Amendment, & the Search for Which “‘Gangster’ Weapons” To Tax. From its inception in 1934, the NFA has been justified solely under the power to tax.
Based on the plain text of the constitutional power of Congress “to lay and collect Taxes” and the consistent Supreme Court precedents on the NFA, the Department of Justice should agree with the pertinent allegations of the above complaints and enter into consent decrees with the plaintiffs to the effect that the NFA may not be applied to any firearms other than machineguns and destructive devices, which remain subject to the tax.
Recognition that the NFA restrictions may no longer be applied to firearms (other than machineguns and destructive devices) does not leave these firearms unregulated. All of them are still covered under Title I of the Gun Control Act, which subjects dealer sales to the NICS background check system, bans possession by felons and other categories of prohibited persons, and otherwise comprehensively regulates firearms.
— Stephen Halbrook in The Zero Tax on NFA Firearms
That wrongfully implies it had any before. Miller was a show trial, plain and simple.
The headline implying that the BBB provisions concerning the NFA had the underlying intent to eliminate the act is misleading. I don’t think the lawmakers are that smart or devious when it comes to the 2A. If the NFA is repealed due to the BBB actions then it is pure happenstance and the result of smart lawyers spotting an unintended opening.
If indeed the NFA is repealed, I really look forward to the heads of the anti-gunners exploding – the entertainment value will be glorious!
The anti-gun are already having a melt down over no tax.
The fact that the Dems drafted a bill to raise the tax to $4k+ would, IMHO, be additional justification for finding it unconstitutional.
Taxing a Right is unconstitutional. Period, full stop. Just the threat of upping it to $4k per item should give courts pause to say “well, Congress does have the power to tax”. Yeah, except a $1.50 poll tax was deemed unconstitutional. Literacy laws for voting were deemed unconstitutional.
This is why Justice Thomas continually argues [correctly] that 2A is deemed to be [incorrectly] a second class right by many Government and the Courts.
If the Dems did manage to raise it to $4k+, many of them would not survive to see the next election. There’s already 90 years of pent up anger over a constitutional right being taxed, then throw in the other egregious tyranny and crimes and lawlessness of the dems and liberals and anti-gun in the just the last 4 years then actually calling for murder of conservatives, then the dems and liberals and anti-gun calling for further imposition of tyranny and marxist socialism – these morons do not realize how precarious their life longevity situation really is – so don’t think people are going to stand for even a further egregious tax on a constitutional right and not take action to dispense with their tyranny.