Excellent point. I hope someone or some organization pursues this in court.
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I have a dream.Maybe the EPA ruling today might help limit the BATFE!
Great write up and questions. I am stealing it, lolThe latest Supreme Court ruling on NYSRPA v Bruen has me wondering about some of the NFA issues we have been dealing with. In particular the Form 1 issues relating to SBRs and form 4 issues relating to Silencers / Suppressors.
The Supreme Court was careful in their reasoning to explain that their decision in NYSRPA v Bruen was incremental and focused on shifting the seven states with "May Issue" concealed carry systems to "shall issue" systems, but the decision also drastically changed the reasoning used in determining the constitutionality of Second Amendment cases.
Ten years ago, in the Heller case, Judge Scalia applied "intermediate scrutiny" to the case under a system in use until the latest decision . This is called a "two part" test. After a legislature has passed a law, the first step determines if it is potentially a constitutional violation. If it is potentially a violation of the constitution, the second step tries to balance the violation as a "means to an end", evaluating the social benefit of the violation. There are three levels tolerated. Strict, intermediate and lax. In Scalia's Heller decision, he used intermediate scrutiny.
Ever since, courts have abused that level of scrutiny regarding the Second Amendment. In last week's decision, the Supreme Court declared that this was no longer acceptable, and that the two step process could no longer be used regarding the Second Amendment because it had effectively relegated it to be a second class right. That, in the view of the court, was no longer acceptable. Specifically, the court indicated that customary interpretation of the meaning of the Second Amendment when it was passed must be applied. There were no limitations to accessories for firearms, no cosmetic definitions or limitations to the size, length, or configuration of firearms when it was passed, or at any time until the NFA was passed in 1934.
Now we come to issues of the Form 1 SBR ATF rules. What exactly allows the ATF to declare the features of a rifle to create a SBR, and thus subject transfer of the firearm to a $200 tax and extensive background check and bureaucratic paperwork procedures?
The Form 4 Suppressor ATF transfer rules also subject you to a $200 tax and extensive background check and bureaucratic paperwork procedures.
The 24th Amendment to the Constitution made poll taxes unconstitutional. This specifically outlawed a tax levied in the course of the process of exercising a right. It would seem that a tax involved in exercising the Second Amendment right of acquiring or transferring a firearm would also be unconstitutional.
There is little justification remaining after eliminating the two step rule for singling out firearms because of their size, and in particularly because of the length of their barrel or their configuration as long as their action type is identical to other handguns and rifles.
Continuing to treat accessories like sound mufflers in this way would also seem to violate the Second Amendment when you eliminate the two step test. There were no prohibitions relating to action type, size of magazine (and in 1791 there were magazine systems already invented), or devices that affected the sound of the rifle or handgun's report. These restrictions and limitations are all of much later periods, and unrelated to the lethality of firearms or their rate of fire. The current case already confirms the right to conceal and carry firearms.
How can the SBR and Suppressor NFA rules continue to stand now that the original meaning of the Second Amendment must be applied to the NFA?
For an opinion that deals only with the public carry of handguns for self-defense, I think you are making assumptions that are not warranted.NYSRPA v Bruen removes the two step means - end test for constitutionality that allowed intermediate scrutiny of laws (balancing the social value versus impact of the law infringing on Second Amendment rights). That means that they go back to the meaning of the "shall not be infringed" words when the law was passed. At that point, there were no limitations regarding the action type, magazine capacity (there were existing designs with magazines), accessories, or the lengths of gun barrels or other cosmetic features of firearms. There were also no comparisons of the military or civilian appearance or "appropriateness" of firearms. That would seem to call into question classification of firearms into the NFA based on barrel length, as well as accessories such as suppressors that made the report of a firearm quieter. These rulings tend to be incremental, and that is why the history of these products is probably going to be important as the classification of them as "firearms" in the NFA is called to question.
If an agency is created by Congress, then the agency has the ability to create regulations, and the EPA case doesn't change that. But the decision does restrict the scope and extent of an agency to create regulations.We know that since ATF is not a legislative body, they should never have been permitted to create such regulations, so... would a direct order from a POTUS be enough to force them to change a regulation?
Or (a pipe dream) could a POTUS simply disband the entire entity?
The NFA was passed in 1934 and congress set the $200 tax. Back in 1934, $200 would have been able to purchase a machine gun so the tax more or less doubled the cost to acquire the machine gun. Since congress set the $200 TAX, ATF cannot raise it without congress making it so.I can't believe nobody has challenged the NFA as being racist as the tax disproportionately effects lower incomes which are overrepresented by people of color.
C'mon, man. It's common sense.
I'm kind of joking but not really. Somebody that can only barely afford a high point to defend their home can damn sure not afford a $200 tax should they wish to protect their hearing.
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