The National Firearms Act of 1934 (NFA) is, a clear violation of the Second Amendment.
In 1934, Congress enacted the nation’s first major federal gun control law. The NFA drew an arbitrary line in the sand over which firearms Americans could possess freely and which ones would be burdened with federal registration, taxation, and criminal penalties.
For more than ninety years, and through thousands of criminal prosecutions, the United States Supreme Court largely ran from confronting the constitutional issues presented by the NFA. Aside from the badly botched decision in United States v. Miller, 307 U.S. 174 (1939), the Court showed no interest in deciding whether the Act was actually compatible with the Second Amendment.
In the meantime, countless Americans were convicted and imprisoned simply for keeping or bearing arms. Many had never committed an act of violence. The vast majority were collectors and firearms enthusiasts whose hobbies had been transformed into federal felonies.
The National Firearms Act was born just after the violent Prohibition era. Criminals such as Al Capone turned American cities into war zones. Ironically, by the time Congress enacted the NFA in 1934, much of that violence had already subsided because America ended Prohibition through the Twenty-first Amendment.
The constitutional solution solved the alcohol wars problem. Unfortunately, Congress soon decided to seriously infringe on the Second Amendment.
Gun control zealots in Congress succeeded in enacting the first major federal infringement on the right to keep and bear arms.
Many Americans accepted the NFA because it regulated firearms they neither owned nor intended to own. It became America’s first so called “common sense gun law.” Yet if the public support had truly been overwhelming, its supporters could have amended the Constitution. They could not. Instead, they used ordinary legislation to restrict a constitutional right. It was obvious, amending the Constitution was politically impossible.
Everything began to change when the Supreme Court finally agreed to hear District of Columbia v. Heller, 554 U.S. 570 (2008). That historic decision recognized what the Second Amendment had always said, that it protects an individual right to keep and bear arms.
Two years later, McDonald v. City of Chicago, 561 U.S. 742 (2010), held that this fundamental right also applies to state and local governments through the Fourteenth Amendment.
Then came New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022). In Bruen, the Court rejected the old balancing tests that lower courts had used for years to uphold virtually every gun restriction imaginable. Instead, the Court held that the government bears the burden of proving that modern firearms restrictions are consistent with this Nation’s historical tradition of firearm regulation.
That is precisely how constitutional rights are supposed to work.
Those three cases marked the Supreme Court’s return to enforcing the Second Amendment instead of treating it like the disowned stepchild of the Bill of Rights.
Heller itself involved the District of Columbia’s outrageous prohibition on possessing functional handguns in the home. The Court finally acknowledged that government had gone too far.
Now the Court has progressed even further. It has agreed to hear two consolidated challenges to so called “assault weapon” bans, Viramontes v. Cook County, No. 25-238 (U.S.), arising from Illinois, and Grant v. Higgins, No. 25-566 (U.S.), arising from Connecticut.
I’ll put my money on a 6 to 3 decision striking down those bans, along with similar laws throughout the country.
Even that will not go far enough. The entire National Firearms Act belongs exactly where it always belonged, in the garbage can.
The Second Amendment was written to ensure that Americans possess arms suitable for both personal defense and the common defense of the nation. That necessarily means parity with the kinds of arms commonly possessed by the ordinary infantry soldier of the day, not merely whatever politicians find convenient to approve.
The next constitutional battle will almost certainly focus on machine guns, arbitrary barrel length regulations, firearm suppressors, and the maze of federal restrictions created under the National Firearms Act. Those issues will ultimately have to be measured against the historical test announced in Bruen, not against political talking points or emotional slogans.
Beyond federal law, the constitutional fight is far from over.
Across America, litigation continues over state and local waiting periods, licensing requirements, permit schemes, so called sensitive places, handgun rosters, magazine capacity restrictions, and so called red flag laws. Every one of those laws will eventually have to stand or fall under the Constitution, not according to the latest polling data or whichever politician happens to be standing in front of the nearest television camera.
Constitutional rights do not depend upon popularity. If they did, they would not be rights at all. They would simply be temporary permissions granted by government until the next election.
Our Founders understood that. It is time our politicians remembered it.
Comments