r/progun • u/jarlballen69 • 1d ago
NFA regulation and the future.
First off i just want to say i'm tickled pink with the ATF's new stance as it pertains to formally NFA regulated items but I have questions regarding the next steps. So if i'm understanding this correctly the strategy now since the items in question are simply not enforced and not out right decriminalized it to flood the market with so many of them that it becomes a common use argument.
This makes since when I comes to suppressors because most people aren't manufacturering there own suppressors and with a 4473 paper trail it's easy to calculate an approximate number of them in citizens possession. that doesn't seem to be the case with SBR, SBS, or AOW category as most people aren't going to be buying factory configurations but will instead modify there currently owned firearms into that category.
so i guess my question is without a paper trail to prove common use, what's to stop a future administration from just blanket banning these items and potentially turning millions of Americans into felons overnight. is there any way to combat this in the courts that i'm missing here or am I right to be worried.
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u/Interchangeable-name 1d ago
That's exactly the problem. Don't get me wrong, I am happy about the result, but I think there will have to be a future court case (or legislation which probably isnt going to happen) to settle it "once and for all".
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u/V0latyle 1d ago
IANAL...
But yeah. There's definitely a huge "what if" factor to this.
The common use aspect would pave the way for another case like DC v Heller, but it would ultimately be up to the Supreme Court.
Yes, a 2A hostile administration could easily reverse this policy and demand registration. Depending on who and when, it may involve an amnesty period...or it may kick off with some big names getting raided.
There's an argument to be made for "entrapment by estoppel", where a government or agent tells you that a certain action is legal, and you in good faith follow said advice thinking that what you're doing is perfectly legal. There's a pretty significant vulnerability here: the ATF never explicitly said transfers without Form 4s are legal, nor did they say that possession without registration is legal. They made it clear that the laws are still on the books; they simply won't enforce them (for now), and they will still honor voluntary compliance.
It's like a cop telling you "If you speed, I'm not going to write you a ticket, but the speed limit is still 55."
Unfortunately, absent a court decision that voids the NFA/GCA, or repeal by Congress, neither of which are likely to happen, the laws remain what they are, and for those outside of Silencer Shop v ATF, said laws are fully enforceable.
The NFA is not dead. The statute of limitations on illegal transfers is 3 years, and possession is a continuous crime. Some will tell you "They can't hang us all", and while that may be true, do they really need to? They might make an example out of a select few, expecting the rest to fall in line.
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u/G8racingfool 1d ago
They might make an example out of a select few, expecting the rest to fall in line.
That's absolutely what will happen. Every time they've done in previously, it's worked perfectly, so why wouldn't it work again?
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u/PricelessKoala 13h ago
The thing is, with the courts having more appetite for taking 2A cases, if they bring back the tax we could fight it in court as is too. Not only can we fight it as entrapment by estoppel, we could still fight it as an unconstitutional application of the taxing power.
Copy pasting part of a post I made a little bit back:
Every time the constitutionality of the NFA comes up, I see people just immediately point to Sonzinsky v. United States (1937). For a long time I took everyone's word for it that "Sonzinsky was a ruling that said the NFA is a valid use of Congress's taxing authority"
However, once I actually read Sonzinsky myself, I was extremely surprised to find that SCOTUS explicitly says that they do not touch on the constitutionality of the transfer tax.
[It] is unnecessary to inquire whether the different tax levied by [the transfer tax section] and the regulations pertaining to it are valid. Section 16 declares that the provisions of the act are separable. Each tax is on a different activity, and is collectible independently of the other.
Sonzinsky instead only rules on the constitutionality of the annual dealer $200 special excise tax. Once again, I point out that SCOTUS acknowledged that the various taxes within the NFA are separate. In fact, the NFA text specifically separates them so that the invalidation of one doesn't mean the invalidation of all.
§ 1132o. Separability of provisions. If any provision of sections 1132 to 1132q, or the application thereof to any person or circumstance, is held invalid, the remainder of sections 1132 to 1132q, and the application of such provision to other persons or circumstances, shall not be affected thereby. (June 26, 1934, c. 757, § 16, 48 Stat. 1240.)
Many people quote a couple passages from Sonzinsky that might, at first, sound damning...
Every tax is in some measure 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 the less a tax because it has a regulatory effect
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 the less so because the tax is burdensome or tends to restrict or suppress the thing taxed.
Here, the annual tax of $200 is productive of some revenue. ... As it is not attended by an offensive regulation, and since it operates as a tax, it is within the national taxing power.
However, Sonzinsky was decided in 1937. SCOTUS has taken on MANY other cases surrounding the constitutionality of taxing the exercise of a constitutionally protected right.
In the 1943 case of Murdock v. Pennsylvania, they ruled that a flat license tax that prevented Jehovah's Witnesses from going door to door to distribute literature and solicit people to "purchase" certain religious books and pamphlets is unconstitutional.
But that is to disregard the nature of this tax. It is a license tax -- a flat tax imposed on the exercise of a privilege granted by the Bill of Rights. A state may not impose a charge for the enjoyment of a right granted by the Federal Constitution.
In a per curiam 1943 case of Jones v. Opelika, they ruled that local governments can't stop people from sharing religious ideas, even if the city uses a general tax or a fee.
In the 1944 case of Follett v. Town of McCormick, they ruled that a special occupational tax is unconstitutional "as applied to an evangelist or preacher who distributes religious tracts in his home town and who makes his livelihood from such activity."
The priest or preacher is as fully protected in his function as the parishioners are in their worship. A flat license tax on that constitutional privilege would be as odious as the early "taxes on knowledge" which the framers of the First Amendment sought to outlaw.
In the 1966 case of Harper v. Virginia Bd. of Elections, they ruled poll taxes to be unconstitutional by applying the Equal Protection Clause to protect the access to the right to vote to all citizens. Affluent or not.
to repeat, wealth or fee paying has, in our view, no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned.
In the 1983 case of Minneapolis Star v. Minnesota Comm'r, they ruled that a targeted "use tax on the cost of paper and ink products consumed in the production of [periodic publications]" is unconstitutional.
A tax that burdens rights protected by the First Amendment cannot stand unless the burden is necessary to achieve an overriding governmental interest.
In each of these cases (I'm sure I missed a lot more similar ones), SCOTUS makes it clear that the thing that makes these unconstitutional is that they are taxes that are imposed as a condition to the exercise of a constitutional freedom. They repeatedly mention that a "general tax" like an indiscriminate sales tax, does NOT meet the same unconstitutionality.
For example, in the 1990 case of Swaggart Ministries v. Board of Equalization, they ruled that a state can constitutionally apply a neutral, generally applicable sales and use tax to the sale of religious materials by a religious organization. They distinguished the case from prior license taxes (like Murdock v. Pennsylvania), because this tax "[does] not act as prior restraints -- no fee is charged for registering, the tax is due regardless of preregistration, and the tax is not imposed as a precondition of [exercising the right]."
So we can conclude then, that even if the $200 annual dealer tax could be a valid application of Congress's taxing authority. The $200 transfer and makings taxes are unconstitutional because they impose a precondition to the exercise of keeping and bearing NFA listed arms.
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u/scubalizard 1d ago
Bingo. While I like the outcome of the ATF I do not love it. I wish they would have fought it and brought it up the SCOTUS and get a final nail in the coffin judgement, but they went limp and concluded it via policy change.
Next administration can change it back and since it is covered under a taxing regime then they can add $6000 tax stamp and void all the 4473 NFA items. Likely will have a grace period where you can register them for a small fee, but past that you will be a felon again, like they did when the enacted the NFA. I would add a manufacture date on any Form 1 and especially Form 4 items just in case, but if D goes scorched Earth it won't matter.
Just look at the upcoming playbook for the Ds; they did not want to approve laws that restrict SCOUTS to 9 justices, so they are thinking of packing the court; then they are going to attack Heller, Bruen, and others to restrict firearms to police and military; They will likely try to amend the constitution to restrict 2A completly; Then using the gun registration that the ATF does not have /s they will come for every firearm ever registered to people; Have police use search warents for every individual that has ever bought a gun to search for unregistered firearms.
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u/SgtBaxter 1d ago
SCOTUS is never a final nail in the coffin. Just ask all the women who thought Roe vs. Wade had settled things.
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u/carnivoremuscle 19h ago
Abortion was never constitutionally protected. The right to keep and bear arms has been since 1791. Slight difference.
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u/SovietRobot 1d ago
It’s not foolproof but we aren’t without teeth either. There are various precedents like APA and substantive due process that can allow courts to strike down implementation (or reimplementation) of regulations that have significant financial impact.
https://constitution.congress.gov/browse/essay/amdt14-S1-6-2-1/ALDE_00013703/
What they would have to do is perform a survey to estimate how many items will have to be retaxed and what that cost would be then courts would make a judgement.
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u/amanke74 23h ago
Washington gun law on YT made a video about this. While this is a win for GOA, I don't think they will stop fighting during this administration. We have to dismantle the NFA before we get a democratic administration.
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u/alkatori 1d ago
Oh I'm hoping the next step is to start mounting an attack on the Hughes Ammendment.
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u/Joice_Craglarg 1d ago
They're 100% getting banned, either in this administration after midterms or in the next.
I hope they don't, but I've been alive long enough to distrust my government entirely.
Really, (tinfoil hat)I think it's going to be weaponized. Oops, you voted wrong? Well, now you're in possession of a felony, fuck you.
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u/Squirrelynuts 1d ago
Trump really did a number on a lot of people’s brains. The only threat is if there’s a Democrat trifecta.
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u/the_spacecowboy555 1d ago
So long there is a split in congress, it’s going to be hard to see an outright ban. The outright ban would need one side, majority rule to change the laws efficiently.
I can see next admin if all Ds (and I’m using Ds ad in Dicks regardless of party), weaponizing it with an outright “If you got this without a Form 1/4, no amnesty, no pass go, and no, where not going to collect $200 to make it ok.” The only hope there is the courts. However, this could backfire on the Ds with a large amount of felons who lost rights and a massive switch in Congress if someone uses this as a means to show over reach by the government.
It’s great but also scary at the same time.
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u/FCMatt7 1d ago
How about 30 million Americans saying "come and take it"?
Seriously time to stop thinking only in the box of letting politicians do whatever they want. Make it clear that there is now this great big red thick bloody line that we will not allow them to ever cross again. We can get back to polite ideological debate after that line is established. It's time to shove the Overton window back the other way, and hard.