Previous Post
Next Post

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.

Previous Post
Next Post

59 COMMENTS

  1. Well that escalated quickly. Umm yeah I will put a watch alert on that case and see if we get the carry restrictions, body armor ban, various firearm purchase permits, and assault weapon ban overturned in time to be relevant for potentially interesting times.

    • This post and the attendant video are just plain goofy. Fifth Circuit affirmed the district court’s ruling on June 21.

      I don’t like the decision, but c’mon people . . . if you’re gonna write on 2A law, at least have the competence to check the status of the case.

    • Again, this post ignores that the Fifth Circuit decided the case last week (affirmed district court’s dismissal for want of standing).

      (Pro tip: check the current status of a court case before posting on it.)

  2. While I hope, pray and keep multiple memberships active I doubt the machinegun owners are looking to see their investments drop to 1/10th of their current worth. A transferable M16A1 lower or RDIAS will set you back $30K right now if not more. If the NFA is completely removed any machinegun will cost a civilian what it costs the government. Then you have the Destructive Devices. Honestly our founding fathers could own cannon and exploding canon balls which would cover destructive devices. But I still think there is so much money tied up in machineguns the the big money would do everything in it’s power to prevent them being removed, no matter their stance on the 2A.

    • Somehow I doubt there are enough such people with the resources and motivation to cause enough trouble to matter. Besides ultra rare ban era registered item with collectors stamp no low bids I know what I got.

      • SAFEupstateFML,

        I agree with your contention that there are not enough machine gun owners to make any difference in our legal landscape one way or another.

      • Never mind the NFA when its bastard-child is the 1968 Gun Control Act. Of course one must know Gun Control History to make hay out of a Title that symbolizes Racism and Genocide like a noose symbolizes lynching. Obviously hay ain’t happening with the deadwoods on this forum who sit silent and allow Gun Control an agenda Rooted in Racism and Genocide to always set the pace. Just like when the democRat Party calls for Reparations the deadwood response is I wasn’t around then yada yada. Never mind seizing the moment to turn the table and hold the democRat Party liable for Reparartions when the democRat Party owns the Legacy of Slavery and other Race Based Atrocities.

        Whether it be Gun Control or Reparations democRats surely must enjoy getting away with pulling the wool over the heads of deadwoods.

    • The ppl that purchased many of those pre-1986 MGs, for the most part, did so as an investment. If their investment value goes down……….. “oh well”. That’s called “risk”.

      • In my opinion, anyone with enough resources to have a pre-86 MG ‘for an investment’ will have enough resources that a.) the MG will not be a significant portion of their total investments, and b.) they would likely be happy to see the value of that individual investment go to near zero (or even zero) if it would mean that freedom is restored to the rest of us in the USA, which further guarantees HIS freedom.
        For me it is academic, since I don’t have any fun NFA toys. With that said, I am never disappointed when I see the value of firearms decrease (even though they almost never do). I enjoy what I have, and why I have it has nothing to do with making money. Reduced pricing simply democratizes gun ownership, which I consider to be a good thing.
        The thing that would make everyone freest and safest, in my opinion, is for every person in the USA to have their own, personal AR-15, 7 standard capacity magazines, and 1000 rounds of ammunition that they would cycle through in training every year. Freedom for thee guarantees freedom for me, and vice versa, and my freedom is not for sale, for profit, or about money. This from an unrepentant raging capitalist.

    • “If the NFA is completely removed any machinegun will cost a civilian what it costs the government.”

      It won’t happen, full stop.

      Even ‘Heller’ recognized ‘certain weapons’ were “exceptionally dangerous” (their words, not mine) and could be banned.

      To really scare you, there’s nothing we could do to stop them from putting every semi-auto on the NFA if they had the votes, and we could not stop them.

      The could do too us what they did to us with the ‘affordable health care act’, and it would be 100 percent legal…

      • That quote is often taken out of context. If the Military uses machine guns they are not exceptionally dangerous. Also show under the Breun standard where does the Government have a long tradition of banning machine guns? The law was passed in 1986 that’s 38 years ago, not exactly a long tradition of banning machine guns.

        • RU-486, better known as mifepristone, wasn’t used in the US until 2000, has a fatality rate of near 100%, and was recently granted protection against bans due to it’s ” long-running ” usage.
          Maybe the problem with the guns isn’t the effectiveness of them but the people who determine what ” long standing ” gets to mean.

          • Amen. I happen to believe America is under judgement because of infanticide. Since the Roe v Wade BS was overturned & returned to the states MORE babies have been slaughtered in demon states like ILL annoy. This summer is turning into a hellscape🙄

    • “…I doubt the machinegun owners are looking to see their investments drop to 1/10th of their current worth.”

      To the extent that that may be true, then SHAME ON THEM. This is just as bad as the Concealed Carry Permit class teachers opposing Constitutional Carry simply because it reduces their captive pool of $tudent$.

      I would submit that neither one of these kinds of folks are true 2A supporters.

      Fortunately, there would be orders of magnitude more people who WANT to buy a reduced-cost fully automatic firearm after the NFA is abolished than there are “investors” who stand to lose money by resisting that change.

    • Back in the early 2000s when a challenge to the NFA was being ramped up, the most vigorous opposition came from the NFA collectors associations. You are correct; if the NFA is rescinded, NFA value will drop like a stone. Especially when newly manufactured M3s and Stens will be available for a tenth of what originals cost.

  3. Hope in one hand…

    Nobody ever voted themselves Free, and damn few ever got “ruled” Free by crusty corrupt old lawyers in robes sitting behind a sacred law court bench. If you want your freedoms back there is only one tried and true method.

    • That’s how women got the right to vote and the civil rights movement all got passed into law, by killing white men. Right?

      • Hey, voting works for us liberal Democrats. It was the liberal Democrats who voted and got all you old farts Social Security, Medicaid and Medicare.

        Now, if we can get Trump’s tax cuts for the wealthy turned around, and get corporate tax rates back to 52% like they were under Eisenhower, we’ll have a shot at securing the Social Security trust fund and paying off the national debt.

        • Lol no especially when those 3 programs are already half the budge an unknown amount of the debt and the only hope of remaining financially solvent is the Covid vaccines cutting the lifespan of boomers in and entering retirement. We are just getting started with hyperinflation so good luck with further taxing businesses that are considering job cuts.

          • “We are just getting started with hyperinflation“

            Really?

            “Inflation eased again in May. Overall inflation edged down to 3.3% as energy prices dipped, and stepped down to 3.4% when you exclude food and energy prices. Inflation in services, a Federal Reserve focus, slowed to 0.2% in May (and 5.3% over the past 12 months), helped by a small decline in the cost of motor vehicle insurance.“

            https://www.kiplinger.com/economic-forecasts/inflation#:~:text=Overall inflation edged down to,cost of motor vehicle insurance.

            “good luck with further taxing businesses that are considering job cuts“

            Job cuts?

            “Employers are feeling optimistic about hiring
            Recent data from ManpowerGroup shows 48% of US employers plan to hire this year.
            Catherine Mcqueen/Getty Images
            ByAmanda Schiavo
            March 12, 2024
            The Q2 US net employment outlook—measured by subtracting the percentage of employers that expect to reduce staff from the percentage planning to hire—increased by 4% YOY to 34%, according to a survey of 6,000 US firms, part of the company’s global survey of 40,000 respondents. Almost one-half (48%) of US employers surveyed planned to add staff in Q2, while 14% expected layoffs and 33% didn’t anticipate staffing changes.“

            https://www.hr-brew.com/stories/2024/03/12/employers-are-feeling-optimistic-about-hiring

            How disappointing it must be that reality does not comport with your corporate dreams of no taxes and high profits built on the backs of working folks.

              • Without a trace of irony I wish his rosey view was correct but the petrodollar and Russian military technology being less capable than we assumed is about all we have going for us at the moment.

            • Still pushing your inflation propaganda after I already called out your lies? Are you a liar, or is your IQ too low to understand simple concepts? Any normal person would be ashamed to be either one. Are you proud of yourself?

              March 2024 inflation (3.5%) was higher than every month since Sep 2023. Remove the higher months of Aug & Sep of 2023, and March 2024 was higher than every month since May of 2023. That isn’t a downtrend. May 2024 only dropped 0.2% from March 2024. It isn’t decreasing when it’s around the highest rate in a year within a historically high inflationary period. (June 2023 was 3%. Jan 2024 was 3.1%.)

            • Yep inflation doesn’t hurt you, cause the GOV’T is paying for your food!!!

              Only people that DON’T GO TO GROCERY STORES, believe the PROPAGANDA on INFLATION!!!

        • Lol no we need to eliminate these programs not expand them. They are all giant ponzi schemes and likely unconstitutional. It’s not the Governements job to take care of you.

          • “Lol no we need to eliminate these programs“

            Thank you for your honesty, at least you are willing to admit the Republicans’ plan to eliminate Social Security, Medicare and Medicaid.

            How wonderful it would be to return to a time when the elderly and disabled are allowed to starve to death while corporate management rakes in millions in unearned compensation.

            • I don’t need those programs.
              I save and prepared my whole life, by living within my means and saving for the future. Social Security, Medicare and Medicaid can all go away today and I don’t care. It was always my responsibility to prepare for my retirement and well being in my old age.
              If you depend on the government, you are just a slave.

              I predict future happiness for Americans, if they can prevent the government from wasting the labors of the people under the pretense of taking care of them.
              ― Thomas Jefferson

        • Yeah because when the government has more tax revenue, they always spend it wisely and frugally because government has a long history of being moral and prudent. More money controlled by people, outside of government, is a horrible thing. We get rich through government-forced redistribution that’s totally never used to reward their cronies. There’s a sucker born every minute.

          • “Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions. There are men in all ages who mean to govern well, but they mean to govern. They promise to be good masters, but they mean to be masters.” — Daniel Webster

        • MINOR49er, Voting sure does work for you Leftists, especially when you stuff the ballot box, with the votes of dead people, people not eligible to vote, and illegal aliens.

        • MajorLiar,

          If voting works for you “liberal Democrats” (bullsh*t, MajorLiar, you are a Leftist/fascist), then why all the Antifa/BurnLootMurder riots? Oh, and the “pro-Palestine” (a country that does not exist, and never HAS existed) ‘peaceful demonstrations’ (during which suspected Jews regularly get assaulted and/or beaten)????

          No need to riot, MajorLiar, just vote. If that doesn’t work, vote harder. And if that doesn’t work, just have a ‘peaceful demonstration’. Your lies become more pathetic as you watch your sad, senile serial child molester sink in the polls like a rock in a pond. The ONLY things even keeping Senile Joe on the ballot are (i) lack of options (thank you, Barry Soetoro!!), and (ii) an unfortunate number of stupid, uneducated potential voters, such as yourself.

          I love the smell of flop sweat in the morning! It smells like . . . victory! Suck it, MajorLiar. Suck it long, and suck it hard.

  4. We often hear about commonplace legal success of going after “low-hanging fruit”. I have to believe that suppressors are an example of “low-hanging fruit”, with the arbitrarily defined “short-barreled” rifles and shotguns only slightly higher on the proverbial legal fruit tree.

    First, go about eliminating the legal restrictions on suppressors and, ideally, short-barreled rifles and shotguns. Then see what additional laws we can strike down.

    At the expense of being a “Debbie downer”, I am very doubtful that the courts will ever overturn tax stamps on machine guns, much less the 1986 law which prohibits civilian ownership of machine guns manufactured after 1986. And I doubt that the courts will ever strike down background check requirements, especially if background checks are free (to the civilian purchaser) and take less than 15 minutes.

    • Unfortunately, you are probably right. However, I’ll take incremental wins. Removing Suppressors from NFA completely is a huge win. Removing SBR/SBS would be fantastic. Lowering the stamp fee is another step. Reopening the registry for full auto would be a game changer, but hard to imagine.

    • Background checks in California are up to just over $37.00 and take ten days. Except for grandfathered items, machine guns are illegal. Suppressors are illegal. So are bump stocks. .50BMG rifles and ammo are illegal. Overturning the NFA or GCA will change none of that.

      • Better standing to challenge unfounded state laws. But yes going to be a long drawn out process in the best case.

    • “I am very doubtful that the courts will ever overturn tax stamps on machine guns, much less the 1986 law which prohibits civilian ownership of machine guns manufactured after 1986.”

      LKB recently said the tax can be overturned like poll taxes were struck down in the 1950s. The extensive check will likely stay, and with form 4 submissions taking one week to clear, it’s a far less onerous task to go through today.

      We absolutely can get suppressors off the NFA entirely, since even Europe doesn’t bother to regulate them…

  5. My friends Mustang was going 155mph yesterday..I needed a belt fed machinegunm because the stops signs were going by to fast.
    I said “Next time the horse power is going to be supplied by the Amish.”

    • “I needed a belt fed machinegunm because the stops signs were going by to fast.”

      Possum, road signs were filled with bullet holes in southwest Oklahoma when I was growing up in the 70s…

    • The stop signs were going by to fast? I didn’t know they ate at all, much less fasted between meals.

    • “Teddy never would have put up with Frankies bullshit”

      Teddy Roosevelt was more progressive than FDR:

      “The Progressive Party, popularly nicknamed the Bull Moose Party, was a third party in the United States formed in 1912 by former president Theodore Roosevelt after he lost the presidential nomination of the Republican Party to his former protégé turned rival, incumbent president William Howard Taft. The new party was known for taking advanced positions on progressive reforms and attracting leading national reformers. The party was also ideologically deeply connected with America’s radical-liberal tradition.[7]

      The party’s platform built on Roosevelt’s Square Deal domestic program and called for several progressive reforms. The platform asserted that “to dissolve the unholy alliance between corrupt business and corrupt politics is the first task of the statesmanship of the day”. Proposals on the platform included restrictions on campaign finance contributions, a reduction of the tariff and the establishment of a social insurance system, an eight-hour workday and women’s suffrage“

      Yep, you can thank Teddy Roosevelt and the unions for getting an eight hour workday for working folks in America, as well as working to end child labor.

      Even now, you can see conservative Republicans bringing back child labor:

      “Republicans continue effort to erode US child labor rules despite teen deaths
      Violations have soared but legislative efforts to strengthen protection for young workers have received little support
      Michael Sainato
      Fri 20 Oct 2023 07.00 EDT
      Child labor violations have been soaring in the US, but efforts to render solutions through legislation have received little support, and Republicans at the state level continue pushing bills that would roll back current child labor protections.“

  6. The claim that all commerce effects interstate commerce because if you buy your tomatoes from the farmer down the road instead of the ones that got shipped in from out of state is ridiculous. But that is what SCOTUS found some 90 years ago, and that needs to be fixed.

    • Thomas is interested in doing just that, if we can get the right case in his in-basket…

  7. The $200 in 1934 would be $4,400 today, if adjusted for inflation.

    Don’t be so whiney, $200 is chicken dookie……..And don’t hold your breath on repeal of the NFA, Not Going To Happen. Not to mention that Ballot Harvest Scams in big blue cities will likely get Biden re-elected and democrats in control of Congress.

    • I never understood why the tax wasn’t indexed to inflation.

      The new insulin price cap thing is going to fall apart once inflation makes that $35 worth $0.35 and no company wants to bother manufacturing it anymore.

  8. As opined in US v. Miller (1939) SCOTUS unanimously (8-0, 1 abstention) agreed that the introductory statement of the 2nd Amendment specifically protects arms of efficacy to the military for the militia which is comprised of the People. Since Miller was not represented in the arguments, and as such, no evidence that a short barreled shotgun was of efficacy to the military was presented, they upheld the conviction of Miller and the NFA restriction. I’m sure that our special forces would have a different opinion on the efficacy of such a weapon today. Regardless, in Miller, SCOTUS correctly cited the introductory statement in support of the true meaning of the 2nd Amendment; for the People to retain their natural right to fight all enemies, foreign and domestic.
    In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.
    United States v. Miller, 307 U.S. 174 (1939)

  9. Though SCOTUS is moving (at a snails pace) in the correct direction, for now, they too seem to miss the foundational principle regarding rights. That the exercise of a right is not subject to any limitation whatsoever. Now, if through that exercise, you harm others or violate the rights of others, then certainly punishment is fitting. We don’t ban “dangerous and unusual” words. But if words are used in a dangerous or harmful manner that’s another story. Even the “common use” test is 100% BS. How would a perfectly good new design become in common use fast enough such that it couldn’t be banned? It’s dumb. The Miller decision was the most correct. Arms of efficacy to the military are specifically protected for the People.

  10. The parsing of the words and sentence structure of the 2nd Amendment to limit the pre-existing right of the People is antithetical to the purpose of the Constitution. The Constitution is not, and can never be used as, a limit upon the People. It is a limit upon Government only. The concept is clearly illuminated in the 9th and 10th Amendments that we the People give certain power to the government and that we retain all rights, enumerated or not.

    Amendment IX
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    Amendment X
    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

  11. I’m sure the same Supreme Court that just decided the govt can disarm anyone it deems dangerous will totally overturn the govt power of restriction 🙄🤦‍♂️

LEAVE A REPLY

Please enter your comment!
Please enter your name here