Gun owners (or most of them, anyway) are rightfully delighted with U.S. District Judge James Wesley Hendrix's decision that much of the National Firearms Act has been rendered moot now that the making and transfer taxes on suppressors, short-barreled firearms, and "any other weapons" have been zeroed out by Congress in the One Big Beautiful Bill Act.
As Reason's Jacob Sullum writes in his latest syndicated column, though, even folks who have no plans to purchase a suppressor or short-barreled rifle in the future should be pleased by how Hendrix reached his decision. Hendrix didn't decide Jensen/Silencer Shop on Second Amendment grounds. Instead, he concluded that since the National Firearms Act was enacted as a tax scheme, its registration and related requirements are no longer valid when it comes to those items that are no longer taxed.
That rationale for the National Firearms Act, which was enacted as part of the Internal Revenue Code, may seem puzzling, since Congress has long relied on its power to regulate interstate commerce as an all-purpose license to legislate. But in 1934, legislators did not think that power was broad enough to authorize outright bans on politically disfavored products, an idea that would not gain currency until after the Supreme Court began stretching the commerce clause beyond recognition.
Instead of banning the listed weapons, Congress imposed a $200 tax on their production and transfer. That tax, which is equivalent to about $5,000 today, was meant to be prohibitive.
Attorney General Homer Cummings explained the need for that roundabout approach when he testified in favor of the National Firearms Act. Although Congress “of course” had “no inherent police powers to go into certain localities and deal with local crime,” he said, it could still use “the power of taxation” to restrict weapons it viewed as especially dangerous.
“If we made a statute absolutely forbidding any human being to have a machine gun,” Cummings explained, “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.”
Congress has the power to tax, though even there the Supreme Court has held that taxes specifically imposed on constitutionally protected First Amendment activity is unconstitutional. SCOTUS has been silent about whether that's true for Second Amendment activity as well, but in this case Judge Hendrix said he didn't need to reach the Second Amendment question because the issue could be resolved simply by focusing on Congress's rationale for imposing the NFA.
The DOJ had argued that, even if the taxing authority of Congress was no longer in play, the Commerce Clause also gives Congress the power to regulate items in interstate commerce. Hendrix rejected that approach by noting that Congress had never invoked the Commerce Clause when it adopted the NFA. It was purely a taxing scheme, as Cummings explained in his testimony supporting the NFA.
Sullum says Hendrix's rejection of the Commerce Clause argument is important, since Congress has used that language to justify "all sorts of regulations that were once viewed as beyond its scope, including laws criminalizing conduct that is neither interstate nor commercial."
“If Congress can regulate this under the commerce clause,” Justice Clarence Thomas warned in a 2005 case involving medical marijuana grown and consumed in California, “then it can regulate virtually anything — and the federal government is no longer one of limited and enumerated powers.”
Hendrix’s decision is a welcome reminder of that fundamental principle. But since 1934, Congress has found a new excuse to justify almost anything it wants to do.
In this case, at least, the DOJ's excuse for keeping the NFA's registration requirements in place were entirely unpersuasive, and that's a very good thing for those of us who believe that the government needs to stay within the boundaries of the Constitution instead of treating that document as a blank check to accrue power. With the Fifth Circuit Court of Appeals recently taking a felon-in-possession case en banc so it can consider the constitutionality of Section 922(g)(1) under the Commerce Clause, we may soon see another court decision that reins in the legislative branch even more than Jensen does... and one with far broader implications beyond our right to keep and bear arms.
Editor’s Note: The radical Left will stop at nothing to enact their radical gun control agenda and strip us of our Second Amendment rights.
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