Document Type
Article
Subject Area
Special Section
Abstract
Congress does not have the power to ban firearms. The National Firearms Act (NFA) is based on the power of Congress to lay and collect taxes. In 1937, the Supreme Court upheld the NFA as purely a revenue measure. When it banned possession of machineguns in 1986, Congress undercut that constitutional basis. The Supreme Court has held that any ambiguities in the NFA must be read narrowly according to the rule of lenity. The 1934 House hearings barely mentioned the Second Amendment. A federal district judge upheld the NFA under the theory that the Second Amendment does not protect individual rights. In 1939, the Supreme Court declined to take judicial notice that a short-barreled shotgun is “ordinary military ordnance” protected under the Second Amendment. Recently, the Court has adopted the test that the Second Amendment protects arms that are in common use. The initial NFA bill, and the bill as enacted, arbitrarily included some firearms and excluded others. After enactment, the Attorney General went on a failed crusade to require all firearms to be registered. Short-barreled rifles and silencers should be removed from the NFA. Neither was identified in the 1934 hearings as desirable to criminals. Today, registered short-barreled rifles and silencers are in common use and are rarely used in crime. Removing them from the NFA would leave them still regulated under the Gun Control Act.
DOI
10.59643/1942-9916.1515
Rights
Copyright © 2025 by the WYOMING LAW REVIEW unless otherwise noted. Except as otherwise provided, copies of any article may be made for classroom use, provided that: (1) Copies are distributed at or below cost; (2) The author and the journal are identified; (3) Proper notice of copyright is affixed to each copy, and (4) The WYOMING LAW REVIEW is notified of the use.
Recommended Citation
Halbrook, Stephen P.
(2025)
"The Power to Tax, The Second Amendment, and the Search for Which "'Gangster' Weapons" to Tax,"
Wyoming Law Review: Vol. 25:
No.
1, Article 5.
Available at:
https://scholarship.law.uwyo.edu/wlr/vol25/iss1/5
