Born again Cynic!

Is the NFA a Dead Law Walking? By Jennifer Sensiba

When the NYSRPA v Bruen decision was first released, a justifiably skeptical gun world didn’t get too excited too fast. But, from the first time I read it, it became clear that gun control was in deep trouble. Those of us who have been in this fight for decades in one form or another still largely adopted a “wait and see” approach, because we’re used to things not panning out like we’d hope (even while the gun rights movement has had great success in the past couple of decades). Broken promises will do that to you.

But, now we’re seeing the opinion’s effects on subsequent cases, and almost no good for the gun control crowd is coming from it. Obvious things, like “may issue” concealed carry went first, followed by many other relatively small infringements. Age restrictions for young adults, carrying in post offices and the “sensitive places” argument are all having a tough time in court.

The big pillars of gun control are still intact, though, and the biggest pillar is the National Firearms Act of 1934. Under Franklin D. Roosevelt, the NFA was basically gun control’s beachhead in the United States. The $200 tax on several types of guns was a direct assault on working America’s gun rights, and was driven by corporate America’s fear of armed workers after things like the West Virginia Coal Wars. A big company could afford the tax and could turn their guns on striking workers, as could mobsters. But, the working man was priced out of the market and left at a disadvantage.

The NFA also acted as a cornerstone upon which other gun control could be built. Cases supporting the law came from corrupt courts, and then we got more gun control in the 1960s (including the 1968 Gun Control Act or GCA), and then more in the following decades. By the 1990s, Americans were starting to wise up and see that there was no end to the agenda, and started fighting back, and it took decades to unwind most of it.

Now, we’re facing the old GCA and NFA. The question we face now is this: will Bruen be enough to take them down? A video from Washington Gun Law last month gives us some clues about the fight ahead.

One of the big things that propped up the National Firearms Act and many subsequent federal gun control laws was the Interstate Commerce Clause, which was (wrongfully, IMHO) expanded by the FDR-Era Wickard v Filburn decision. Instead of trying to keep interstate commerce regular (in the Metamucil sense and not the “ban it” sense), FDR’s New Deal agenda wanted federal control over everything, and the court (under threat of court packing) gave him what he wanted by saying even things that compete with interstate commerce in a state are considered interstate commerce.

This reliance on interstate commerce to justify these laws still doesn’t address other issues, such as the glaring problem of the Second Amendment denying the federal government power over guns, even in interstate commerce. But, now we’re starting to see these questions head back to court in the post-Bruen landscape.

The State of Texas decided to take this on, both with a law and with court action against the federal government. After a lower court dismissed Texas’ attempt to stop federal overreach on interstate commerce grounds, it’s now in the Fifth Circuit and could possibly wind its way all the way up to the Supreme Court.

In short, Texas and others joining it in its case says that suppressors being built in the state and stay in the state aren’t part of interstate commerce, and that the federal government cannot regulate firearms anyway, as there’s no historical tradition from the founding era to show that this was common practice as understood by the ratifiers.

There’s a lot more to this story that makes it worth your time to watch the video (especially the public health angle), but it’s hard to overstate the possible importance of this case. It could not only lead to better respect for gun rights, but a reduction of federal overreach in many other areas based on an expansive view of interstate commerce.

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