President Donald Trump’s big, beautiful bill has brought a big, beautiful opportunity to Second Amendment advocates. By zeroing out the tax on certain guns and accessories mandated by the National Firearms Act, this controversial legislation raises a crucial constitutional question: Since a $0 tax generates no revenue, is it even a tax? Many argue it is not – and, therefore, the NFA is no longer a tax law. That’s precisely the approach taken by a new lawsuit from Gun Owners of America and several other enthusiasts of the right to keep and bear arms.
Why is that important? The law’s status as a tax is the only reason it was ruled constitutional to begin with in its first Supreme Court challenge so many years ago.
Dollars and Sense
When Congress passed the National Firearms Act in June of 1934, what Franklin D. Roosevelt signed into law was not a ban on certain items, as many people seem to think. All involved understood that would be unconstitutional and that, even with anti-gun Democrats holding the trifecta of power in the Swamp, it wouldn’t pass muster. Instead, a heavy (for the time) tax was imposed on these items, which, therefore, justified a registry to track who had paid said levies.
Under the NFA, transferring ownership of machine guns, destructive devices, short-barreled shotguns (SBSs), short-barreled rifles (SBRs), and silencers all required the payment of a $200 fee and subsequent registration. It was a long, drawn-out process – deliberately slow, one might surmise – and it was prohibitively expensive. Adjusted for inflation, $200 in 1934 had the buying power of $4,782 today.
To put that into perspective even more, a Thompson submachine gun with a 20-round stick magazine cost about $200 at the time. That was already expensive – the average revolver would only set you back $20 to $35, and a basic Springfield double-barrel shotgun would have cost you just over $15. For that matter, a brand-new Ford car ran about $400. But back to the Tommy gun – doubling the price of an already expensive item was devastating to the “right” to own it. Oh, sure, it was still legal to buy them – but instead of forking over $200, it was then $400 – about the price of a new car at the time, and the 1934 equivalent of nearly $9,600 in modern money.
As you might imagine, this effectively “banned” the already expensive machine gun for most Americans. And that was precisely the point – a point, by the way, the Supreme Court supported in 1937.
As Liberty Nation News explained shortly after Trump signed the One Big Beautiful Bill Act into law:
“[A]ccording to Justice Harlan Fiske Stone and the rest of the majority on the 1937 Supreme Court, it is, in fact, a tax – and that’s what makes it constitutional. Writing for the majority, Stone explained: ‘In the exercise of its constitutional power to lay taxes, Congress may select the subjects of taxation, choosing some and omitting others.’ Furthermore, he argued: ‘Every tax is in some way regulatory. To some extent, it interposes an economic impediment to the activity taxed, as compared with others not taxed. But a tax is not any less a tax because it has a regulatory effect … and it has long been established that an Act of Congress which, on its face, purports to be an exercise of the taxing power is not any less so because the tax is burdensome or tends to restrict or suppress the thing taxed.’”
Buying a machine gun is still prohibitively expensive for most folks, thanks largely to updates to the NFA over the years that severely limit one’s options, but the issue with silencers, SBRs, and SBSs is a little different. One could build three entirely different classifications of AR-15 style guns by buying all the same parts in triplicate except for the barrels and stocks. Put a 16.5-inch or longer barrel on the weapon with a buttstock designed to press against the shoulder, and you have a rifle. For build number two, go with a 12- or 14-inch barrel and a pistol brace instead of a stock, and you have an AR pistol.
Both are entirely legal – but build out the third gun with a pistol-length barrel and the rifle stock, or even the pistol brace and a vertical foregrip, and what you have is an SBR. Three firearms that may be no more than two inches different from each other in length, that fire the exact same round at almost the exact same velocity, but one is a felony if not registered with the federal government.
More Than One Way to Gut the NFA
In the House-passed version of the BBB, SBRs, SBSs, and silencers were simply removed from the NFA. That went out the window, however, when Senate Parliamentarian Elizabeth MacDonough ruled it violated the Byrd Rule, which prohibits the inclusion of anything not budget-related in a budget reconciliation bill. That was an odd ruling, given the 1937 Supreme Court decision – and that may have been, perhaps, grounds for a lawsuit in of itself. But ultimately, that approach may prove unnecessary.
As the grotesque old saying goes, there’s more than one way to skin a cat. In reality, there probably isn’t more than one effective and practical way for that grim task – but, as luck would have it, there is apparently more than one way to gut the NFA.
Gun Owners of America, the American Suppressor Association, the National Rifle Association, Firearms Policy Coalition, and Second Amendment Foundation – along with some others – have launched, as the NRA put it, “a new strategic lawsuit to challenge the constitutionality of the NFA in Federal Court.”
Here’s their approach: The 1937 Court ruled that the NFA was legal because it was a tax – and that the “validity” of taxes “laid to raise revenue” is “beyond question.” So, we have the NFA defined as a tax – and the constitutional authority of Congress to lay taxes defined as raising revenue.
But what revenue does a $0 tax raise?
Since no money can be made on these items now, that portion of the NFA is no longer a legitimate tax, plaintiffs argue, and if it isn’t a tax, it isn’t constitutional. While in practice the National Firearms Registration and Transfer Record is a federal registry of those who own certain types of firearms, it’s nominally a registry of those who have paid the $200 transfer tax. Therefore, by the suit’s logic, it too must go.
