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What is the current legal status of NFA-related provisions?

There are a number of key cases and findings that relate or may relate to the National Firearms Act - note that post-Heller there are a number of unanswered questions still to be decided.

 

Miller vs United States

A bit of an unusual case, as the defense was not present for the trial, so only the government's side was presented.  The key take-away from Miller is that "short barreled shotguns" are permissible according to the second amendment as "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 of Tennessee, 2 Humph., Tenn., 154, 158. "   Miller goes on to explicitly cite the citizen militia as the purpose of the Second Amendment and discusses the history of such bodies.   Taken at face value, one could read Miller as concluding that the Second Amendment protects ONLY military weaponry and not weaponry with only "sporting uses"!

 

Farmer vs Higgins

This was the first case to test the 1986 FOPA machinegun ban based on the language that "a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof".  The case keyed upon the language of the ban - claiming that any transfer approved by the ATF was implicitly conducted with the authority of an agency of the United States.  The court found that the ATF interpretation was reasonable (essentially distinguishing between authority and permission), and that courts and agencies should not interpret a change in law to assume that Congress meant for nothing to change.   Thus, ATF could not be enjoined to approve applications based on the language of the law.

 

US vs Rock Island Armory

This is a fairly technical case, revolving around the fact that the NFA as instituted was passed as a "revenue raising" measure under Congressional power to levy taxes.  The NFA registry is intended to ensure compliance with the taxation requirements under the NFA.  In US vs Rock Island Armory, the court found that by prohibiting the issue of tax stamps for machineguns, the Congress had effectively removed the fundamental purpose of the registry.  As such, by removing the underlying revenue raising purpose, the Congress had effectively repealed the NFA for the case of post-1986 machineguns, and the case was dismissed in circuit court.

 

DC vs Heller

  1. Heller found that the Second Amendment protects both individual use for self defense as well as individual use for the unorganized militia.  Heller specifically notes protecting militia weapons "in comon use at the time", and maintains that "prohibiting the carrying of dangerous and unusual weapons" meets constitutional muster.  There are a number of avenues here that are available, especially for machineguns. 
    1. Machineguns are in "common use" essentially everywhere for military and militia purposes where they are legally available at prices near the creation cost - they only reason they are not in "common use" in the United States is that they were prohibitively expensive due to the NFA tax ($3200 equivalent in 2010 dollars) for civilians, and banned after 1986.  Government agencies, including law enforcement and security/protection make extensive use of such weapons (being exempt from the transfer tax), as do militia-type freedom fighters world-wide.  It is hardly reasonable to conclude that something is not in "common use" after a century of government suppression of such use.
    2. Machineguns are also questionably "dangerous" given the success of NFA over the past century - crimes committed with registered machineguns are so few as to be negligible over a century compared to a single day's worth of fatal automobile accidents.  Finally, "prohibiting the carrying of dangerous and unusual weapons" is not a prohibition on ownership, but rather a conditioning of the use of such weapons.
  2. The analysis in Heller applying to handguns should also directly apply to "tactical" shotguns - such weapons are overwhelmingly used in self-defense and home defense roles as well as militia roles, and are not dramatically more dangerous than a handgun.

 

Key Takeaways

  • The case is not a slam dunk in either direction.  There are avenues which strongly suggest that significant parts of the National Firearms Act and Gun Control Act are unconstitutional, but there are also undoubtedly "penumbras" and "emanations" to be read and decoded by properly trained legal professionals.
  • There are certainly grounds for initiating legal action, but it is neither certain nor cheap