A Gun Ruling Highlights the Tricks Congress Uses To Evade Limits on Its Power

Second Amendment groups applauded last week after a federal judge in Texas ruled that several national firearm regulations were unconstitutional. But the decision did not hinge on gun rights. Rather, it affirmed a broader principle: The federal government’s powers are limited to those explicitly granted by the Constitution.

The case involved the National Firearms Act (NFA), a 1934 law that targeted weapons and accessories thought to be favored by criminals. Because that law was framed as a revenue measure, U.S. District Judge James Hendrix held, Congress fatally undermined the constitutional rationale for some of its provisions by eliminating the federal taxes on making and transferring sound suppressors, short-barreled rifles, and short-barreled shotguns.

Congress did that last year, when it approved a law that retained the NFA’s taxes on machine guns and “destructive devices” such as bombs and grenades but repealed the taxes on all other products covered by the law. Given that change, Hendrix concluded, the reporting, registration, and record-keeping requirements for the latter set of products, which ostensibly were aimed at facilitating revenue collection, could no longer be justified by the tax power that Congress invoked when it passed the law 92 years ago.

That rationale for the NFA, 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 NFA. 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 had taken a similar approach when it approved the Harrison Narcotics Tax Act of 1914, which effectively prohibited nonmedical use of opiates and cocaine. It would likewise rely on “the power of taxation” to justify a de facto national ban on cannabis in 1937.

The Supreme Court blessed that pretext in 1928, upholding the Harrison Act on the grounds that it raised “substantial revenue,” consistent with its advertised purpose. But as Hendrix noted, Congress broke that thin reed when it eliminated the taxes on most NFA-regulated products.

The Trump administration argued that the NFA regulations could still be justified under the Commerce Clause. Hendrix, a Trump appointee, disagreed, saying the government “cannot employ post-hoc justifications to save a statute based on an enumerated power that Congress never invoked.”

Nowadays, of course, Congress relies on the Commerce Clause to enact 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.

© Copyright 2026 by Creators Syndicate Inc.