The Power to Tax, The Second Amendment, and the Search for Which "'Gangster' Weapons" to Tax

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.