As I’m sure you’ve all heard by now, some of the special federal requirements applying to some NFA items have been struck down in court and the DOJ hasn’t appealed the decision. I’m not here to do what countless Opinion Havers on the internet have done already and explain what that means for you. Instead, this blog post will consist of my ruminations on what it means for the movement in the long term.
Before that, though, let me clear up a few things. First, the National Firearms Act of 1934 was not ruled unconstitutional. The reasoning for the decision is as follows:
- Article I, Section 8 of the U.S. Constitution gives taxation authority to Congress.
- The NFA imposed a tax for making or transferring various categories of firearms, including sound suppressors (called “silencers” in the law). The tax was $200 for most NFA items and $5 for AOWs (any other weapons; generally, but not exclusively, firearms disguised as other objects).
- When you make or transfer an NFA item, you have to go through a more complicated process than doing so with an ordinary firearm. You file a Form 1 or Form 4, respectively, and wait sometimes more than a year for ATF to process your paperwork. They send you back a tax stamp certifying that you’ve paid the tax.
- Last year, Congress changed the tax to $0.
- The court decision found that a $0 tax isn’t a tax, so the special paperwork and procedures applying to NFA items with a $0 tax stamp attached didn’t fall within Congress’ power to levy taxes.
That all means that if Congress decides to raise the NFA taxes, even just to $1, the tax stamps and all the associated paperwork come back. Second, ATF hasn’t announced how they’ll be changing their enforcement procedures to work with this change, so most dealers have no way of knowing how to comply with the ruling yet. This is still early days, so don’t go and verbally harass the sales associates at your LGS for refusing to sell you a suppressor with only a 4473. Third, this court ruling only applies to those states which don’t have their own restrictions on NFA items, which California does. That means that if you’re reading this, dollars to doughnuts it doesn’t affect you because Sacramento decided you shouldn’t own any of the affected items anyway.
With all that out of the way, I can move on to the rhetorical question in this post’s title: What’s next? As the foundation for all federal gun control legislation since, the NFA has been the biggest monkey on our backs for 92 years. It feels like we’ve finally achieved the impossible in getting rid of it.
Except we haven’t. The NFA is still in place. As I pointed out above, all it takes to put the whole tax stamp system back in place is for the legislature to pass and the executive to sign a law raising the tax back from $0. I hate to get into partisan politics, but for all practical purposes, that means the White House and both houses of Congress flipping. We have no way of knowing when the former will happen, but considering how midterms usually go, the latter could very well come after this November’s elections. Repealing or at least reforming the NFA is still and should remain a priority for national pro-2A advocacy organizations.
There are other frontiers for Second Amendment progress, though. It would do well for our people in the policy sphere to do battle against some of the swathe of stupid import bans, which seldom garner the kind of attention the NFA does but are no pernicious. The import restrictions built into the Gun Control Act of 1968 and the “assault weapon” import ban George H.W. Bush signed in 1989 come to mind. Even people who think the affected firearms are bad and scary should back repealing those bans; their real effect isn’t to stop those guns from being sold, it’s just to make them more annoying and expensive to bring into the country. Guns made in the U.S. that would be illegal to import (in their original configurations, but I won’t get into that here) are perfectly legal to produce domestically, and are indeed in large numbers.
Back on the domestic front, the other big Second Amendment fight still in progress is that for nationwide CCW reciprocity. SDCGO already has a public statement on the issue, which I won’t waste the word count duplicating. Suffice it to say, there’s no good reason why concealed handgun permits oughtn’t to be treated like driver’s licenses in that every state should recognize one issued by another state. The concealed carry area has several other issues to which 2A activists can devote our efforts, such as “sensitive places” restrictions and illegal fees, but those are state-level issues.
In short, the NFA fight is far from over, and other battles abound. We can can celebrate this one victory but we can’t take it to mean further victory is a sure thing. There’s work to be done yet on the national level, and of course no state is safe, as Virginia recently showed. The dedicated activists, organizers, lobbyists, and lawyers who have spent years or decades fighting for your right to keep and bear arms aren’t walking away just because they’ve succeeded once. They’re getting back down into the trenches and figuring out where to strike next. It wouldn’t hurt to send them your donations, or better yet, join them.
