New Hampshire attorney E.F. Nappen writes that the Firearms Freedom Acts being introduced and enacted in various states are subject to " The Achilles Heels of the Firearms Freedom Act." He argues that the inclusion of NFA (National Firearms Act) items (e.g., suppressors or short-barreled rifles) in the asserted exemption from federal authority will cause the Acts to fail in court because the NFA regulates under federal tax power, not federal commerce clause power.
Of course Nappen is correct to assert that getting the permission of federal judges in approval of the Acts will be a difficult exercise. The federal government (including its judicial branch) doesn't surrender power readily.
As the author of the original Montana Firearms Freedom Act (MFFA) that is being cloned around the Nation, I've long known that litigating the MFFA would be a chancy proposition. But, I believe, there is more to hope for than Nappen credits.
Addressing Nappen's concern about NFA items, it is true that the NFA purports to be founded in the power given to Congress in the Constitution to tax. However, there are two sorts of taxes: 1) Those enacted and implemented primarily to raise revenue, and 2) those enacted and implemented to affect commerce. The federal excise tax on firearms and ammunition is clearly the former sort, since it raises millions of dollars the feds dole out to the states for wildlife management. The various firearms freedoms acts do not challenge or affect this genuine revenue raising. It is expected that if litigation under the MFFA is successful, it will still leave the excise tax on state-made and state-retained firearms and ammunition in place, and makers will likely remain liable for this tax.
The taxes levied under the NFA, however, are of the second sort, intended primarily to affect (restrict) commerce in these items. ...
Read the rest here. The reason the National Firearms Act, passed in 1934, imposed an (exorbitant at the time) tax, rather than a ban, was likely because such a ban would likely not have survived legal challenge. Remember, this was pre-Miller, before the concerted decades long judicial and political attack on gun rights and the Second Amendment. The NFA tax ($200; I don't believe it has changed since 1934) on a single full-auto capable rifle at the time amounted to a sizable chunk of an average person's income (remember, this was during the height of the Depression). Indeed, a $200 tax in 1934 would be the equivalent of over $3,000 today. Thus, the tax accomplished a de facto ban by pricing such guns out of the reach of the average person (naturally, rich criminals were not so encumbered).
Unfortunately, the legal bar will be high for Montana to succeed in upholding its Firearms Freedom Act, and I suspect that the issue will require the Supreme Court to weigh in and overturn (explicitly or implicitly) some of its Depression-era precedents concerning the interstate Commerce Clause.
Frankly, I would not be surprised if Montana loses in the lower federal courts, especially given that the state is part of the left-leaning, San Francisco-based 9th Circuit. But this is a fight that needs fighting if states are to regain their sovereign rights, and the relentless expansion of the federal leviathan's power stopped and curtailed back to its Constitutionally enumerated place. Whether we can achieve that via peaceful means through judicial and/or political action, however, remains to be seen. The history is sadly not promising in this regard.
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