This Gun Case Harks Back to Constitutional Concerns About the Limits of Federal Power That Now Seem Quaint

Testifying in favor of the National Firearms Act (NFA) in 1934, Attorney General Homer S. Cummings noted that the federal government “of course” had “no inherent police powers to go into certain localities and deal with local crime.” Rather, “it is only when we can reach those things under the interstate commerce provision, or under the use of the mails, or by the power of taxation, that we can act.”

Cummings explained how “the power of taxation” worked in this context: “If we made a statute absolutely forbidding any human being to have a machine gun, 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.”

Last July, Congress eliminated that legal pretext for several NFA provisions by repealing the federal taxes on sound suppressors, short-barreled rifles, and short-barreled shotguns. That change, several gun rights groups argue in a memorandum they filed last Friday in the U.S. District Court for the Eastern District of Missouri, fatally undermines the constitutional rationale for the NFA’s requirement that dealers and owners register those products, which was supposed to facilitate the collection of the taxes.

The case, which Reason‘s Brian Doherty covered after the original complaint in Brown v. ATF was filed on August 1, might seem of little moment unless you own the covered products or would like to acquire them. But the lawsuit goes to the heart of congressional authority to intervene in matters that were long understood to be outside the federal government’s purview.

As I explain in my new book Beyond Control, Congress initially invoked its tax power to justify federal regulation of firearms, echoing the approach it had taken with drug legislation. The U.S. Supreme Court repeatedly blessed that strategy.

In the 1928 case Nigro v. United States, the justices rejected a challenge to the Harrison Narcotics Tax Act of 1914, saying it qualified as a revenue measure despite the manifest goal of prohibiting nonmedical use of opiates and cocaine. Writing for the majority, Chief Justice William Howard Taft acknowledged that “merely calling an Act a taxing act can not make it a legitimate exercise of taxing power” when “the words of the act show clearly its real purpose is otherwise.” But he rejected the argument that the Harrison Act was a transparent cover for exercising police powers that Congress was never granted, deeming the law’s official rationale and the “substantial revenue” it raised enough to make it constitutional. That stretch, University of Cincinnati law professor A. Christopher Bryant argued in a 2012 Nevada Law Journal article, qualified as “the most disingenuous Supreme Court opinion, ever.”

The Supreme Court applied similar logic in the 1937 case Sonzinsky v. United States, ruling that the NFA was a valid exercise of the tax power. The law imposed a $200 tax on transfers of the covered products, which was meant to be prohibitive, amounting to more than $4,800 today. The NFA also required dealers to pay an annual tax of $200—the provision at issue in Sonzinsky—and imposed registration requirements on dealers and owners, ostensibly to facilitate tax collection. It authorized fines and imprisonment for anyone who failed to register or failed to pay the tax.

“The Constitution made no grant of authority to Congress to legislate substantively for the general welfare, and no such authority exists, save as the general welfare may be promoted by the exercise of the powers which are granted,” the petitioners in Sonzinsky noted. “Under the American constitutional system, the police power, being an attribute of sovereignty inherent in the original States, and not delegated by the Federal Constitution to the United States, remains with the individual States.” They argued that “a mere reading of the National Firearms Act discloses that it was enacted for the purpose of regulating or suppressing traffic in the firearms described in the Act; that it was not enacted for the purpose of collecting any taxes; that it was passed as a police measure, as an aid to local law enforcement, and not as a revenue law.”

Writing for a unanimous Court, Justice Harlan Stone rejected the argument that the NFA was a ban disguised as a tax. “The case is not one where the statute contains regulatory provisions related to a purported tax in such a way as has enabled this Court to say in other cases that the latter is a penalty resorted to as a means of enforcing the regulations,” he wrote. “Nor is the subject of the tax described or treated as criminal by the taxing statute.”

The NFA “contains no regulation other than the mere registration provisions, which are obviously supportable as in aid of a revenue purpose,” Stone added. “On its face it is only a taxing measure, and we are asked to say that the tax, by virtue of its deterrent effect on the activities taxed, operates as a regulation which is beyond the congressional power.” But “every tax is in some measure regulatory,” he said, and “a tax is not any the less a tax because it has a regulatory effect.” The Court refused to “ascribe to Congress an attempt, under the guise of taxation, to exercise another power denied by the Federal Constitution.”

Three decades later, in Haynes v. United States, the Supreme Court upheld the prosecution of a man who was charged with possession of an unregistered “firearm” covered by the NFA. The petitioner, Miles Edward Haynes, unsuccessfully argued that the registration requirement violated the Fifth Amendment’s ban on compelled self-incrimination because he had a felony record that barred him from legally possessing guns. Consistent with Sonzinsky, the Court described the NFA as “an interrelated statutory system for the taxation of certain classes of firearms,” adding that Congress “apparently intended to guarantee that only weapons used principally by persons engaged in unlawful activities would be subjected to taxation.”

Given the Supreme Court’s reasoning in upholding the NFA’s registration requirements, what happens when three “classes of firearms” covered by that law are no longer subject to a tax? In Brown v. ATF, two gun owners, a gun dealer, the National Rifle Association, the Firearms Policy Coalition, the Second Amendment Foundation, and the American Suppressor Association argue that registration of those products no longer serves a revenue-raising purpose and is therefore no longer constitutional under the Court’s precedents.

“Without a tax as a foundation,” the plaintiffs argue in support of their motion for summary judgment, “the NFA’s registration provisions as applied to non-taxed NFA firearms are neither a tax themselves nor necessary and proper to levying a tax and are, therefore, unjustifiable as an exercise of Congress’s taxing power. That the NFA can no longer be justified as an exercise of Congress’s taxing power and is thus unconstitutional should be the end of this matter. Congress passed the NFA specifically based on its taxing power and the courts have understood the NFA and upheld it on that basis.”

The revenue rationale for federal intervention, which was also the official basis for the Marihuana Tax Act of 1937, eventually fell out of favor, replaced by the Supreme Court’s increasingly commodious understanding of the congressional power to regulate interstate commerce. Congress relied on that power to justify the Federal Firearms Act of 1938, the Gun Control Act of 1968, and the Controlled Substances Act of 1970, among many other laws. But the NRA et al. argue that courts should not try to save the NFA’s registration requirements by relying on the Commerce Clause—”a justification for the law that Congress itself considered and rejected.”

Even if that judicial maneuver were valid, the plaintiffs say, the NFA’s registration requirements cannot be justified under the Commerce Clause. “The NFA is plainly not a regulation of the channels of interstate commerce or the instrumentalities of interstate commerce,” they argue, “and it is not a regulation of intrastate commerce with substantial effects on interstate commerce.”

The NRA et al. add that the registration requirements, as applied to suppressors and rifles or shotguns with barrels shorter than 16 inches, are not “consistent with this Nation’s historical tradition of firearm regulation”—the Second Amendment test established by the Supreme Court’s 2022 ruling in New York State Rifle & Pistol Association v. Bruen. These products, they say, are in “common use” for “lawful purposes,” so they do not qualify as the sort of “dangerous and unusual” weapons that the Court has said are not covered by the Second Amendment.

In addition to the specific issues raised by the challenged NFA provisions, this case highlights the expansion of congressional power epitomized by federal gun and drug laws. When Congress debated the earliest versions of those laws, legislators still worried about identifying a specific enumerated power that would justify the policies they favored. Nowadays, Congress takes it for granted that it can legislate on nearly any subject, sometimes without even bothering to offer a constitutional pretext.

That is what happened with the Gun-Free School Zones Act of 1990, which the Supreme Court deemed unconstitutional in the 1995 case United States v. Lopez, noting that it “neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce.” Congress responded by adding references to interstate commerce, which federal appeals courts deemed sufficient to cure the problem identified in Lopez.

Congress, in short, initially forgot that it was supposed to be regulating “interstate or foreign commerce.” But after the Supreme Court reminded it, the invocation of that phrase was enough to fix the law, even though nothing of substance had changed. In this context, Cummings’ recognition that the federal government has “no inherent police powers to go into certain localities and deal with local crime” seems as quaint as his pince-nez.