Last minute suppressor vote

[wesfromky]

Dropping the $200 tax will also help with the used market, but would be nice to not have to deal with any paperwork for transfers.

 

[RWT]

I am less than an hour from their store. The issue with them is they charge $175 for a transfer if the can is not purchased through them. I would have a UM OG if not for the fee. I also have to pay sales tax so my fees for an OG would be $200
Stamp, $175 transfer fee and $82.50 taxes. If your wondering that is a 43% tax on a $1000
Suppressor.

If UM or the AB Raptors were in their vendor network it would save me $. This is why I am hoping the NFA requirements for Supressors go away. This would allow any FFL to transfer one in and that fee is generally $25-$35 to complete the standard paperwork

 

[HuntHarder]

I am less than an hour from their store. The issue with them is they charge $175 for a transfer if the can is not purchased through them. I would have a UM OG if not for the fee. I also have to pay sales tax so my fees for an OG would be $200
Stamp, $175 transfer fee and $82.50 taxes. If your wondering that is a 43% tax on a $1000
Suppressor.

If UM or the AB Raptors were in their vendor network it would save me $. This is why I am hoping the NFA requirements for Supressors go away. This would allow any FFL to transfer one in and that fee is generally $25-$35 to complete the standard paperwork

You need to look for a new SOT. Mine charged me $50 for the UM transfer. I think some stores jack up the price to try and force you to buy from them.

 

[voltage]

Hot take: it’ll be cheaper to buy a suppressor in September 2025 (with stamp) than it’ll be in January 2026 (without stamp).

 

[IW17]

Hot take: it’ll be cheaper to buy a suppressor in September 2025 (with stamp) than it’ll be in January 2026 (without stamp).

Probably for the foreseeable future. Can't out a price on freedom.

 

[greyghostnw]

I think the possibility of a inflationary tax stamp re applied in future is a real possibility that all who are thinking short term a move in right direction will regret. A $1000 suppressor could have a $7000 plus or minus tax stamp based on 1934 correlation. Faith in the court system? ….Gods speed with this one.

 

[nettereo16]

Here is the GOA filing, will be interesting to see where this goes: https://www.gunowners.org/wp-content/uploads/GOA-One-Big-Beautiful-Lawsuit.pdf

 

[HandgunHTR]

I think the possibility of a inflationary tax stamp re applied in future is a real possibility that all who are thinking short term a move in right direction will regret. A $1000 suppressor could have a $7000 plus or minus tax stamp based on 1934 correlation. Faith in the court system? ….Gods speed with this one.

That was a possibility well before this bill was signed and it never happened. This bill doesn't make that any more likely to happen, it is just one of the many justifications for the temper tantrums that some are throwing because the whole HPA/SHORT didn't get through.

Using a baseball analogy, this is the equivalent of a batter swinging for a home run and hitting a single. What we need to do now as a team is send the next batter up and see if they can hit in the runner. What a segment of our team is doing is akin to wanting to kick the batter off the team and forfeit the game because he didn't hit a home run.

 

[FB Trout]

That was a possibility well before this bill was signed and it never happened. This bill doesn't make that any more likely to happen, it is just one of the many justifications for the temper tantrums that some are throwing because the whole HPA/SHORT didn't get through.

Using a baseball analogy, this is the equivalent of a batter swinging for a home run and hitting a single. What we need to do now as a team is send the next batter up and see if they can hit in the runner. What a segment of our team is doing is akin to wanting to kick the batter off the team and forfeit the game because he didn't hit a home run.

That is well said, right there. Let’s take a positive where we can get one.

 

[fwafwow]

I'm not peeing in Wheaties. I'm happy for the change, but wish it could have gone further. I just don't agree with the amount of optimism that the further changes will be possible via litigation. The money being spent by the various organizations on legal fees might be better used to take another shot at the HPA

It's a statute. An administration can't change it without going through Congress.

Agreed.

The final version making it $0 tax on suppressors, if properly leveraged, could be used to overturn parts of the NFA. The NFA has been allowed to stand for decades because "its a tax, which is legal", and not therefore legally considered an infringement on the 2A. $0 = not a tax, therefore making that aspect of the NFA definitively regulatory in nature, and thus ripe to get overturned.

I am intellectually curious on this point that has been said in several places, on RS and elsewhere. And the basis for that argument made in the GOA complaint is pretty thin, IMHO.

I think this view is based upon the premise that the only way for Congress to legislate regarding firearms is via a tax, but I don't think that's accurate. There are limits to the 1A, and there are limits on the 2A. I'm not saying the NFA is good in any way, I'm just saying that Congress probably does have *some* power to regulate firearms, or impose limits on the 2A, much like there are laws in place that limit the 1A. So if the NFA tax goes to zero, that doesn't mean that the SCOTUS could still find it valid for another reason.

Further, it could comfortably be argued that the Byrd Rule ruling supports that interpretation, because removing items from the NFA was deemed 'regulatory' in nature, which if true, then the NFA is a regulation that infringes on the 2A and not simply a tax. That aspect of what just happened should, in reality, open up the entire NFA to be overturned by the SC.

I'm not sure I'm seeing this the same way. Is the Byrd Rule just a Senate procedural rule?

To be fair - I doubt it will happen - before it trickles up to the SC, some future legislation will probably re-instate the tax (likely at a much higher rate, now that we've established precedent for changing the tax rate in the NFA), and even if it did make it to the SC before that happens, the SC backstabs us often enough anyway, that it would in no way be a sure thing. But - it's an opening created that never existed before, so... one of y'all with the money and the time, feel free to take the shot, please and thanks.

I hope that the suit is successful. I just personally wouldn't bet on it, and maybe it's a better use of resources to aim to get a direct vote on the HPA.

Just a point of clarification, the $200 tax is still in place for machine guns and destructive devices.

So, what this current language allows for is the challenge that the Form 1/4 required for the making/transfer of a suppressor, SBR, or SBS is a defacto registry and therefore illegal under the 2nd Amendment and those items should be removed from the NFA altogether.

I think we may have traded posts on this in another thread - so not directly addressed at you - but there is no 2A prohibition on a national registry. There is a statute, that can be changed by Congress, that prohibits the Executive Branch from creating a registry.

That portion of the bill goes into effect 90 days from signing. I would expect the lawsuit to be filed on Day 91.

I think as others have said above, I agree the effective date is 1/1/26.

Sometimes, you have to take the compromise so you can get the ball rolling.

^^^This

As a lawyer, I like our odds of defeating the NFA in court if the tax goes away.

The NFA was "legal" because it fell within Congress's power to tax and spend. Without the tax, there is a good chance 5 justices strike down the remaining law as it relates to Suppresors and SBRs.

Somewhat to the point I raised above, can you clarify or provide further support for this? The spot cite in the GOA complaint doesn't support this proposition, but there may be better support.

It's not a valid exercise of Congress' power to tax if there is no revenue generated.

Link?

I think the possibility of a inflationary tax stamp re applied in future is a real possibility that all who are thinking short term a move in right direction will regret. A $1000 suppressor could have a $7000 plus or minus tax stamp based on 1934 correlation. Faith in the court system? ….Gods speed with this one.

Only if (when?) Congress changes the law.

 

[Axlrod]

I'm not peeing in Wheaties. I'm happy for the change, but wish it could have gone further. I just don't agree with the amount of optimism that the further changes will be possible via litigation. The money being spent by the various organizations on legal fees might be better used to take another shot at the HPA

Agreed.

I am intellectually curious on this point that has been said in several places, on RS and elsewhere. And the basis for that argument made in the GOA complaint is pretty thin, IMHO.

I think this view is based upon the premise that the only way for Congress to legislate regarding firearms is via a tax, but I don't think that's accurate. There are limits to the 1A, and there are limits on the 2A. I'm not saying the NFA is good in any way, I'm just saying that Congress probably does have *some* power to regulate firearms, or impose limits on the 2A, much like there are laws in place that limit the 1A. So if the NFA tax goes to zero, that doesn't mean that the SCOTUS could still find it valid for another reason.

I'm not sure I'm seeing this the same way. Is the Byrd Rule just a Senate procedural rule?

I hope that the suit is successful. I just personally wouldn't bet on it, and maybe it's a better use of resources to aim to get a direct vote on the HPA.

I think we may have traded posts on this in another thread - so not directly addressed at you - but there is no 2A prohibition on a national registry. There is a statute, that can be changed by Congress, that prohibits the Executive Branch from creating a registry.

I think as others have said above, I agree the effective date is 1/1/26.


^^^This

Somewhat to the point I raised above, can you clarify or provide further support for this? The spot cite in the GOA complaint doesn't support this proposition, but there may be better support.

Link?

Only if (when?) Congress changes the law.

The Byrd rule is only in the senate for reconciliation. Reconciliation are tax/spending bills with limited debate and no filibuster. Agreed to by both parties. Partly to keep the minority party from filibustering, which kills legislation favored by the majority party.
I think. lol

 

[HandgunHTR]

I am intellectually curious on this point that has been said in several places, on RS and elsewhere. And the basis for that argument made in the GOA complaint is pretty thin, IMHO.

I think this view is based upon the premise that the only way for Congress to legislate regarding firearms is via a tax, but I don't think that's accurate. There are limits to the 1A, and there are limits on the 2A. I'm not saying the NFA is good in any way, I'm just saying that Congress probably does have *some* power to regulate firearms, or impose limits on the 2A, much like there are laws in place that limit the 1A. So if the NFA tax goes to zero, that doesn't mean that the SCOTUS could still find it valid for another reason.

Somewhat to the point I raised above, can you clarify or provide further support for this? The spot cite in the GOA complaint doesn't support this proposition, but there may be better support.

I will just address this point.

In 1936, a man named Sonzinsky was charged with dealing firearms without paying the tax as required by the NFA. In 1937 that case made it to the Supreme court. One of the points of arguement for Mr. Solzinsky was that the NFA was unconstitutional.
As part of the decision, the court ruled the following:
"Here the annual tax of $200 is productive of some revenue.1 We are not free to speculate as to the motives which moved Congress to impose it, or as to the extent to which it may operate to restrict the activities taxed. As it is not attended by an offensive regulation, and since it operates as a tax, it is within the national taxing power. Alston v. United States, 274 U.S. 289, 294, 47 S.Ct. 634, 71 L.Ed. 1052; Nigro v. United States, supra, 276 U.S. 332, 352, 353, 48 S.Ct. 388, 394, 72 L.Ed. 600; Hampton & Co. v. United States, 276 U.S. 394, 411, 413, 48 S.Ct. 348, 352, 353, 72 L.Ed. 624."
That part has been interpreted further to mean that since it isn't an outright regulation, it is a tax, it is constitutional under Congress' power to tax.

So, since the tax has now been removed for suppressors, SBRs, SBSs, and AOWs, they no longer fall under the reasoning the court gave for inclusion in the NFA, i.e. taxation.

 

[fwafwow]

That part has been interpreted further to mean that since it isn't an outright regulation, it is a tax, it is constitutional under Congress' power to tax.

Thank you. But I don’t find the further interpretation to be persuasive. If a tax is ok under that case, it doesn’t necessarily mean that the absence of a tax is invalid. Rather than striking down the revised law as an impermissible exercise of the tax power (if a $0 tax is really unconstitutional, but $0.01 is constitutional), the SC could find it permissible under the commerce clause.

 

[gbflyer]

Kinda leaves guys wanting to add on the SOT in limbo. Me.

 

[HandgunHTR]

Thank you. But I don’t find the further interpretation to be persuasive. If a tax is ok under that case, it doesn’t necessarily mean that the absence of a tax is invalid. Rather than striking down the revised law as an impermissible exercise of the tax power (if a $0 tax is really unconstitutional, but $0.01 is constitutional), the SC could find it permissible under the commerce clause.

You have to think in terms of contracts/laws. Essentially what the court determined is that the NFA is allowed to regulate these items because it is a tax, not a restriction or registry. Now that the tax is removed, what is the purpose of having these items as part of the NFA? That is what will be argued in the lawsuit. Additionally, there is case law that prohibits the creation of a national firearms registry (https://www.congress.gov/crs-product/IF12057#:~:text=Four provisions of statutory law prohibit a,raised questions about ATF record retention practices.), so if there is no tax on these items, what is the purpose of the Form 4?
Finally, something else to remember in cases like these. Laws and contracts are only valid if the entire law/contract is valid. You can have a 100 page contract, but if one clause is not valid, it puts the whole contract in question. The same for laws. In this case, what the GOA and the ASA are going to argue is that if there is no tax on these items, why should they still be included in the NFA? The Court will have to find some Constitutional, or legal reason why they should be, or they will rule that they should not be and therefore require Congress to amend, rewrite, or create a new law that supercedes the NFA so that they are no longer included, or to reinstate the tax so that they can stay as part of the NFA.

Edit to add: I just read your comment again and have another thought. Again, the question isn't whether the tax or the NFA is Constitutional or not. That is "settled law". Sonzinsky v US settled that. The arguement now is that if there is no tax on them, should the items that are free from tax be subject to further restrictions on ownership above and beyond other firearms (remember as part of the NFA, these items in question are clearly defined as firearms)? That is what will be argued.

 

[fwafwow]

Thanks again for the back and forth. I hope I'm wrong about everything.

You have to think in terms of contracts/laws.

I'm not sure I understand this as a starting point. Congress can pass any law, unless it's unconstitutional. There is no contract analogy. I don't understand the reference to laws in that sentence. (After completing my reply, I think my lack of understanding this starting point is covered below.)

Essentially what the court determined is that the NFA is allowed to regulate these items because it is a tax, not a restriction or registry. Now that the tax is removed, what is the purpose of having these items as part of the NFA? That is what will be argued in the lawsuit.

I don't think that is correct. The Sonzinsky case (the decision starts on page 511) did deal with the NFA, but the only issue in the decision was whether the law was a valid exercise of the taxing power. (The petitioner argued it as an improper exercise of police powers - which are generally reserved to the states.) The Second Amendment is not mentioned in the decision. Finding that the NFA was permissible as a taxing power doesn't mean that was the only way the NFA (as modified by the BBB) can stand. Congress doesn't need to specify "we changed the NFA under this provision and we are hereby doing so pursuant to the Commerce Clause." Said another way, Congress can do whatever it wants, and it is presumed to have done so in a valid way, unless someone successfully argues it didn't. Sozinsky failed to make that argument.

Additionally, there is case law that prohibits the creation of a national firearms registry (https://www.congress.gov/crs-product/IF12057#:~:text=Four provisions of statutory law prohibit a,raised questions about ATF record retention practices.), so if there is no tax on these items, what is the purpose of the Form 4?

That link isn't to a case. The only restriction on gun registries (that I am aware of) is pursuant to the FOPA, and the restriction is only against the Federal executive branch creating a national registry. Firearms registries are otherwise not unconstitutional - DC, Hawaii and California have them. (Or said more accurately, there has not yet been a SC case saying they are unconstitutional.)

Finally, something else to remember in cases like these. Laws and contracts are only valid if the entire law/contract is valid. You can have a 100 page contract, but if one clause is not valid, it puts the whole contract in question. The same for laws.

This is not true for contracts or laws. "Blue penciling" is one example for contracts. Contracts also usually contain a severability clause. The Supreme Court also follows a "Severability Doctrine" to permit it to find one provision unconstitutional without needing to invalidate the rest.

In this case, what the GOA and the ASA are going to argue is that if there is no tax on these items, why should they still be included in the NFA? The Court will have to find some Constitutional, or legal reason why they should be, or they will rule that they should not be and therefore require Congress to amend, rewrite, or create a new law that supercedes the NFA so that they are no longer included, or to reinstate the tax so that they can stay as part of the NFA.

I don't think this is right. I believe that the burden will be on GOA to prove there is no constitutional basis for the BBB revision, not the other way around. My guess is that it would be pretty easy to conclude that the NFA is valid under the Commerce Clause. (Note - I personally believe that the scope of the Commerce Clause has been interpreted too broadly by the SC.)

Edit to add: I just read your comment again and have another thought. Again, the question isn't whether the tax or the NFA is Constitutional or not. That is "settled law". Sonzinsky v US settled that.

Sorry to quibble, but the SC didn't rule that it was constitutional. It ruled that an argument that the law was unconstitutional failed. It sounds like splitting hairs, but the difference means that if it was ruled constitutional, especially only because it was an exercise of a taxing power, then that would buttress an argument that the removal of the tax matters.

The arguement now is that if there is no tax on them, should the items that are free from tax be subject to further restrictions on ownership above and beyond other firearms (remember as part of the NFA, these items in question are clearly defined as firearms)? That is what will be argued.

It will be interesting to see what they argue, but the complaint was pretty thin on detail.

 

[Spoonbill]

It will be interesting to see what they argue, but the complaint was pretty thin on detail.

My assumption on the complaint being thin is the GOA did it so they could have a pretty broad argument as to why their argument is correct. It will be interesting to see how this proceeds.

 

[HandgunHTR]

Thanks again for the back and forth. I hope I'm wrong about everything.

I'm not sure I understand this as a starting point. Congress can pass any law, unless it's unconstitutional. There is no contract analogy. I don't understand the reference to laws in that sentence. (After completing my reply, I think my lack of understanding this starting point is covered below.)

I don't think that is correct. The Sonzinsky case (the decision starts on page 511) did deal with the NFA, but the only issue in the decision was whether the law was a valid exercise of the taxing power. (The petitioner argued it as an improper exercise of police powers - which are generally reserved to the states.) The Second Amendment is not mentioned in the decision. Finding that the NFA was permissible as a taxing power doesn't mean that was the only way the NFA (as modified by the BBB) can stand. Congress doesn't need to specify "we changed the NFA under this provision and we are hereby doing so pursuant to the Commerce Clause." Said another way, Congress can do whatever it wants, and it is presumed to have done so in a valid way, unless someone successfully argues it didn't. Sozinsky failed to make that argument.

That link isn't to a case. The only restriction on gun registries (that I am aware of) is pursuant to the FOPA, and the restriction is only against the Federal executive branch creating a national registry. Firearms registries are otherwise not unconstitutional - DC, Hawaii and California have them. (Or said more accurately, there has not yet been a SC case saying they are unconstitutional.)


This is not true for contracts or laws. "Blue penciling" is one example for contracts. Contracts also usually contain a severability clause. The Supreme Court also follows a "Severability Doctrine" to permit it to find one provision unconstitutional without needing to invalidate the rest.

I don't think this is right. I believe that the burden will be on GOA to prove there is no constitutional basis for the BBB revision, not the other way around. My guess is that it would be pretty easy to conclude that the NFA is valid under the Commerce Clause. (Note - I personally believe that the scope of the Commerce Clause has been interpreted too broadly by the SC.)

Sorry to quibble, but the SC didn't rule that it was constitutional. It ruled that an argument that the law was unconstitutional failed. It sounds like splitting hairs, but the difference means that if it was ruled constitutional, especially only because it was an exercise of a taxing power, then that would buttress an argument that the removal of the tax matters.

It will be interesting to see what they argue, but the complaint was pretty thin on detail.

I, too, appreciate the back and forth. I apologize for not being as clear and concise as I am trying to be. It is hard during an exchange like this. If we were face to face having this discussion, it would be much easier to clarify and change the wording to provide better meaning or understanding.

First, I will say that the use of "constitutional" in my responses isn't entirely accurate. Therefore, I will use the term "lawful" for better clarity as that is honestly what we are trying to figure out.

Second, I realize that I was being a bit too broad in some of my statements and that caused confusion. I will try to do better. I will also emphasize words that are key to the point.

So, with that I will clarify some things.

One of the points that Solzinsky argued was:
4. A tax may have regulatory effects and may burden, restrict or suppress the thing taxed, and still be within the taxing power. P. 513
The first full paragraph on page 513 of the document that you linked to starts the opinion of the court on that matter. Essentially what was said was that; yes, the imposition of the tax is regulatory by nature, but since the purpose of the NFA is to tax, it is lawful. The key wording, in my opinion is this:
On its face it is only a taxing measure, and we are asked to say that the tax, by virtue of its deterrent effect on the activities taxed, operates as a regulation which is beyond the congressional power.
Every tax is in some measure regulatory. To some extent it interposes an economic impediment to the activity taxed as compared with others not taxed. But a tax is not any the less a tax because it has a regulatory effect, (United States v. Doremus, supra, 93, 94; Nigro v. United States, 276 U. S. 332, 353, 354; License Tax Cases, supra;
see Child Labor Tax Case, supra, 38); and it has long been established that an Act of Congress which on its face purports to be an exercise of the taxing power is not any the less so because the tax is burdensome or tends to restrict or suppress the thing taxed. (emphasis mine)

So, if the Court concluded that the tax imposed by the NFA was not a regulatory measure because it was a tax, what happens when the tax is removed? That is the question that the Court will be asked to answer this time now that the tax itself has been removed.

In regards to my comment about contracts and laws, the point I was trying to make is that "blue penciling" and Severability Doctrine do exist but that they have to happen for a contract or law to be legal in their entirety when it is determined that a clause or portion of the contract/law is not legal. This is the crux of the argument that I believe the GOA and ASA will make in their respective cases. They are going to try to force the court to remove suppressors, SBRs, SBSs, and AOWs from the NFA because now that the tax is gone, the purpose of that portion of the NFA is purely to infringe on the rights of the citizen's ability to possess those firearms, which then calls into question its legality under the 2nd Amendment.

In regards to the registry, I used the words "case law" when I should have just said "law". The link I provided was to provide context to the fact that various laws have been enacted that prevent the Federal Government from creating and maintaining a Federal firearms registry. This is clearly stated in the Firearm Owners Protection Act.
"No such rule or regulation prescribed after the date of the enactment of the Firearms Owners' Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established." (emphasis mine)
Yes, various states have them and their legality has been challenged and upheld, but the Federal Government cannot do it. So, the purpose of the Form 1 or 4 in the past was a way to document that a tax had been paid. What is its purpose now? It will be argued that now the only purpose that it serves is as a registry, which the Federal Government cannot do.
Of course this will open the door for some states to want to create some sort of registry for these items, but that is a bridge we will cross when it happens.

 

[fwafwow]

I, too, appreciate the back and forth. I apologize for not being as clear and concise as I am trying to be. It is hard during an exchange like this. If we were face to face having this discussion, it would be much easier to clarify and change the wording to provide better meaning or understanding.

No need to apologize, and I fully agree (as with most forum discussions) in person would be better.

First, I will say that the use of "constitutional" in my responses isn't entirely accurate. Therefore, I will use the term "lawful" for better clarity as that is honestly what we are trying to figure out.

Second, I realize that I was being a bit too broad in some of my statements and that caused confusion. I will try to do better. I will also emphasize words that are key to the point.

So, with that I will clarify some things.

One of the points that Solzinsky argued was:
4. A tax may have regulatory effects and may burden, restrict or suppress the thing taxed, and still be within the taxing power. P. 513
The first full paragraph on page 513 of the document that you linked to starts the opinion of the court on that matter. Essentially what was said was that; yes, the imposition of the tax is regulatory by nature, but since the purpose of the NFA is to tax, it is lawful. The key wording, in my opinion is this:
On its face it is only a taxing measure, and we are asked to say that the tax, by virtue of its deterrent effect on the activities taxed, operates as a regulation which is beyond the congressional power.
Every tax is in some measure regulatory. To some extent it interposes an economic impediment to the activity taxed as compared with others not taxed. But a tax is not any the less a tax because it has a regulatory effect, (United States v. Doremus, supra, 93, 94; Nigro v. United States, 276 U. S. 332, 353, 354; License Tax Cases, supra;
see Child Labor Tax Case, supra, 38); and it has long been established that an Act of Congress which on its face purports to be an exercise of the taxing power is not any the less so because the tax is burdensome or tends to restrict or suppress the thing taxed. (emphasis mine)

All of the above is fine by me. I just think that one can not get a negative inference from Sozinsky. It said the government was using a permissible taxing power. That's it. It doesn't mean in absence of a tax (assuming for the sake of argument that $0 = no tax) means the law is not constitutional. And the fact that the BBB changes to the NFA were part of a much broader set of law enactments and changes, might support the position of the government that the change to the NFA was permissible/lawful/constitutional.

So, if the Court concluded that the tax imposed by the NFA was not a regulatory measure because it was a tax, what happens when the tax is removed? That is the question that the Court will be asked to answer this time now that the tax itself has been removed.

See above. My belief is the answer is "nothing" unless the law (or that portion thereof) is found to be unconstitutional.

In regards to my comment about contracts and laws, the point I was trying to make is that "blue penciling" and Severability Doctrine do exist but that they have to happen for a contract or law to be legal in their entirety when it is determined that a clause or portion of the contract/law is not legal.

I don't understand this ("have to happen"). The contract is valid, but a provision isn't - the rest of the contract is valid. Blue penciling is a very narrow example (and a judicial doctrine), which I probably should not have used. Liquid damages are often argued to be punitive and not permissible, but that doesn't mean the contract is invalid in toto. There is no affirmative act required to counter an argument that a clause is invalid. Similarly, the SC will take upon itself to rule one part of a law invalid - it doesn't need to affirm that the rest is valid.

This is the crux of the argument that I believe the GOA and ASA will make in their respective cases. They are going to try to force the court to remove suppressors, SBRs, SBSs, and AOWs from the NFA because now that the tax is gone, the purpose of that portion of the NFA is purely to infringe on the rights of the citizen's ability to possess those firearms, which then calls into question its legality under the 2nd Amendment.

I don't think this will happen, but I hope I'm wrong. This goes to my continued and repeated point. The NFA doesn't need to be valid as a tax in order to remain in place. The continued provision can be an exercise of the commerce power. If the SC has said handgun permits are OK (as long as they meet the Bruen requirements), they are unlikely IMHO to say that filing some forms - for free - is an impermissible infringement on the 2A - especially when suppressors have no historical precedent to point to under Bruen.

In regards to the registry, I used the words "case law" when I should have just said "law". The link I provided was to provide context to the fact that various laws have been enacted that prevent the Federal Government from creating and maintaining a Federal firearms registry. This is clearly stated in the Firearm Owners Protection Act.
"No such rule or regulation prescribed after the date of the enactment of the Firearms Owners' Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established." (emphasis mine)
Yes, various states have them and their legality has been challenged and upheld, but the Federal Government cannot do it.

This isn't exactly accurate. First, I am unaware of more than one law (so not various). And the one law is limited in scope. The Federal government can certainly create a national registry - if Congress enacts that law. (Whether that registry would be constitutional would depend on whether the SC would hear a case alleging otherwise.) There is no case or other law that I am aware of that says otherwise.

The above language you quoted is solely related to the executive branch (hence the reference to "such rule or regulation"). If the BBB amendment creates a registry, I don't think it would be seen as violating the FOPA provision. Also, the law was passed after the FOPA, so if there is any conflict, I think the latter law "wins".

So, the purpose of the Form 1 or 4 in the past was a way to document that a tax had been paid. What is its purpose now? It will be argued that now the only purpose that it serves is as a registry, which the Federal Government cannot do.

As above, I disagree.

Of course this will open the door for some states to want to create some sort of registry for these items, but that is a bridge we will cross when it happens.

I think any state could create a registry now - the law above doesn't restrict state laws. Since some states have firearm registries, and some states outlaw suppressors and SBRs, I don't think a state registry would be any worse. (And by "worse" I mean from a constitutional perspective - they would clearly be worse for citizens.)

 

[joshs]

All of the above is fine by me. I just think that one can not get a negative inference from Sozinsky. It said the government was using a permissible taxing power. That's it. It doesn't mean in absence of a tax (assuming for the sake of argument that $0 = no tax) means the law is not constitutional. And the fact that the BBB changes to the NFA were part of a much broader set of law enactments and changes, might support the position of the government that the change to the NFA was permissible/lawful/constitutional.

Yes, one of the ways to attack the argument being made that Congress lacks the power to create a tax that doesn't generate revenue is just to justify the NFA requirements under the Commerce Clause. That wasn't done at the time of Sonzinsky becasue it predated the biggest modern Commerce Clause case by a few years (Wickard v. Filburn).

So, one could argue that the NFA is otherwise justified under the modern Commerce Clause precedents, but there is a major problem with that argument. The Court has generally required a "jurisdictional hook" for Congress to use its commerce power. This is why almost all federal gun statutes that rely on the commerce power apply only to firearms that have been "shipped or transported in interstate or foreign commerce." When a federal gun law lacked this hook, the Court struck it down: https://www.oyez.org/cases/1994/93-1260

The NFA lacks a jurisdictional hook becasue Congress relied on the tax power to enact it.