Excellent point. I hope someone or some organization pursues this in court.
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Impact of latest Supreme Court ruling on some NFA issues
The 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?
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?
1 - 20 of 27 Posts
Would love some fresh new CHEAP MGs….
Well, maybe they'll waive the $200 but then make the application process ridiculously ponderous.....or even more so.
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?
I can not speak to the SBR thing but an issue I do not see that Court, which just once again place so much emphasis on the meaning of the words in 1787, deciding that a suppressor is a firearm. In 1787 "Lock, stock and barrel" meant the whole thing just as it does today.
I can not speak to the SBR thing but an issue I do not see that Court, which just once again place so much emphasis on the meaning of the words in 1787, deciding that a suppressor is a firearm. In 1787 "Lock, stock and barrel" meant the whole thing just as it does today.
As I grow older, I value my hearing even more. I worked for a decade in television an radio production, and longer as a sound recording engineer - so there is a professional aspect to this as well as the work I do now teaching firearm safety.
The wait of over a year while the ATF does a background check so that someone can be permitted to possess a sound muffler for use on the end of my firearm is an abusive infringement of a citizen's Second Amendment right.
The definition of a sound muffler as a heavily regulated and controlled "firearm" that cannot cross state borders is an abusive infringement on my right to transit between states.
The requirement for a $200 tax and extensive legal paperwork to acquire and transfer a simple firearm accessory is an abusive infringement on a citizen's Second Amendment right to freely use firearms without putting my hearing at risk or disturbing neighbors of my gun range.
For an older cancer patient, who could die while waiting over a year for ATF to complete a background check and approve the transfer of a firearm accessory is an abusive infringement of an older citizen's Second Amendment right.
Is there any criminal related investigative justification whatsoever to putting sound mufflers under the abusive purview of the NFA as controlled firearms? Forensic tools used to discover the perpetrator of a crime work just as well if not better when suppressed firearms are used in a crime. Other nations that have no controls on suppressors have not experienced problems (Norway... for example).
I'm curious about the history of these devices, and their regulation if anyone has details.
The wait of over a year while the ATF does a background check so that someone can be permitted to possess a sound muffler for use on the end of my firearm is an abusive infringement of a citizen's Second Amendment right.
The definition of a sound muffler as a heavily regulated and controlled "firearm" that cannot cross state borders is an abusive infringement on my right to transit between states.
The requirement for a $200 tax and extensive legal paperwork to acquire and transfer a simple firearm accessory is an abusive infringement on a citizen's Second Amendment right to freely use firearms without putting my hearing at risk or disturbing neighbors of my gun range.
For an older cancer patient, who could die while waiting over a year for ATF to complete a background check and approve the transfer of a firearm accessory is an abusive infringement of an older citizen's Second Amendment right.
Is there any criminal related investigative justification whatsoever to putting sound mufflers under the abusive purview of the NFA as controlled firearms? Forensic tools used to discover the perpetrator of a crime work just as well if not better when suppressed firearms are used in a crime. Other nations that have no controls on suppressors have not experienced problems (Norway... for example).
I'm curious about the history of these devices, and their regulation if anyone has details.
I hope you are right. But I'm not sure I see the point that the case is read to include suppressors as something innate to the 2A. I agree that NYSRPA confirms the 2A is consistent with the 1A as far as rights status, but IMHO the case starts with the question - does a law or regulation burden a citizen's right to self defense? If so, then the burden is on the government to demonstrate that those burdens are acceptable, and NY failed in this instance. I don't know whether one has to have a suppressor for self defense. If they are not necessary for self defense, especially using the language in the case (see page 23) relating to "carry" (which a suppressor is probably not consistent with carry), then I don't know that the case gives the same treatment as it did to handguns in this case.
Again, I'm not arguing that the NFA is fair or that there shouldn't be better access to NFA items for law-abiding citizens. I'm just not convinced that the language in the opinion is broad enough to encompass a part or accessory to a firearm as fully within the protection of the case. I'm also open to being wrong - and hope that I am.
Again, I'm not arguing that the NFA is fair or that there shouldn't be better access to NFA items for law-abiding citizens. I'm just not convinced that the language in the opinion is broad enough to encompass a part or accessory to a firearm as fully within the protection of the case. I'm also open to being wrong - and hope that I am.
It's my personal opinion that this case doesn't seem to relate to the question of suppressor ownership in general, and maybe just barely, tangentially. The case could be made for the importance of their use in home defense scenarios, for sure, but for carry, I think it would be a stretch.
However, I think we all know that there are plenty of legitimate and justifiable reasons for owning a supressor, whether they apply to self defense or not (and the 2A is not just limited to self defense). In fact, many other countries who have much stricter gun ownership laws than the U.S. are perfectly fine with gun owners owning suppressors, and in some cases they encourage it, without all the ridiculous hoop jumping we have to go through here.
The ATF is clearly being arbitrary (and in my opinion) capricious when it comes to both suppressor and pistol brace laws. There is no solid legal justification for their regulation of either item, and we just need someone to challenge these laws vigorously in a federal court.
However, I think we all know that there are plenty of legitimate and justifiable reasons for owning a supressor, whether they apply to self defense or not (and the 2A is not just limited to self defense). In fact, many other countries who have much stricter gun ownership laws than the U.S. are perfectly fine with gun owners owning suppressors, and in some cases they encourage it, without all the ridiculous hoop jumping we have to go through here.
The ATF is clearly being arbitrary (and in my opinion) capricious when it comes to both suppressor and pistol brace laws. There is no solid legal justification for their regulation of either item, and we just need someone to challenge these laws vigorously in a federal court.
Maybe the EPA ruling today might help limit the BATFE!
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.
I have a dream.Maybe the EPA ruling today might help limit the BATFE!
I guess I just am missing the language in the case. They do look at the text, but there are still limits - including the “sensitive places” doctrine referenced in the case. The key (again, IMHO) to the holding is there can’t be infringement on firearms used for self defense, unless the government meets a burden. “Shall issue” can still have limits and hurdles - they just have to meet a standard that the NY subjective judgment requirement failed to meet. The case does not say that any and all manner of types and/or uses of firearms can be used without restriction.
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.
I just went back and read through the syllabus again this thing really appears to be very narrow.
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.
Sent from my iPhone using Tapatalk Pro
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.
Sent from my iPhone using Tapatalk Pro
Yesterday's decision on EPA regulation of carbon emissions is also important to us... This ruling throws a serious monkey wrench into agency overreach in general:
Some of the recent actions by the ATF are typical of this kind of extra-legal agency overreach. In particular the recent rulemaking that redefines what a "receiver" is, and the attempt to change the definition of a "firearm" based on a number of features which are assigned "points" (the issue with pistol braces and the definition of a Short Barreled Rifle).
These recent rule proposals really stretch and extend the ATF's authority well beyond what congress has authorized them to do.
The Supreme Court seems, in general, to have put it's foot down as far as deep state agency abuse of our nation and individual citizen's rights.
Some of the recent actions by the ATF are typical of this kind of extra-legal agency overreach. In particular the recent rulemaking that redefines what a "receiver" is, and the attempt to change the definition of a "firearm" based on a number of features which are assigned "points" (the issue with pistol braces and the definition of a Short Barreled Rifle).
These recent rule proposals really stretch and extend the ATF's authority well beyond what congress has authorized them to do.
The Supreme Court seems, in general, to have put it's foot down as far as deep state agency abuse of our nation and individual citizen's rights.
While the specific ruling is narrow, the reasoning behind the ruling is remarkably expansive for Second Amendment rights because it shuts down the two step means - end process that has been abused by Leftist leaning courts for the past decade. With four cases GVRed back to lower courts for reconsideration under the new more originalist textualist rules everything has changed for the constitutional standards the Supreme Court has demanded be applied to Second Amendment cases.
This has long term and broad implications, and I'm curious about how this will impact NFA related cases. The latest EPA carbon rulemaking decision further reigns in rogue agencies that are pursuing rulemaking beyond that authorized by congress - something typical in how the ATF has been acting under the current administration.
This has long term and broad implications, and I'm curious about how this will impact NFA related cases. The latest EPA carbon rulemaking decision further reigns in rogue agencies that are pursuing rulemaking beyond that authorized by congress - something typical in how the ATF has been acting under the current administration.
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?
Or (a pipe dream) could a POTUS simply disband the entire entity?
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?
I believe the answer is "yes" to your first question, but I can't immediately think of an instance in which that has ever happened - with any agency. As for the second question, I think it depends upon the statutory authority for the BATFE, which has changed over time, but I would suspect the answer is "no".
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.
Sent from my iPhone using Tapatalk Pro
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