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Kostas Moros

@MorosKostas

Jun 24

At this point everyone following the NFA debate is well aware of then-Attorney General Cummings’ famous testimony in which he justified the NFA as a tax measure. When asked how the NFA “escaped” the Second Amendment, Cummings replied:

“Oh, we do not attempt to escape it. We are dealing with another power, namely, the power of taxation, and of regulation under the interstate commerce clause. You see, if we made a statute absolutely forbidding any human being to have a machine gun, you might say there is some constitutional question involved. But, when you say, “We will tax the machine gun” and when you say that “the absence of a license showing payment of the tax has been made indicates that a crime has been perpetrated,” you are easily within the law.”

In anticipation of the Parliamentarian’s imminent ruling on whether the HPA and SHORT Act provisions merged into the reconciliation bill survive the Byrd rule, below are a bunch of cases over the years from the Supreme Court and federal circuit courts also saying clearly that the NFA is a TAX. They prove that the government has long defended the NFA in court as a tax. Several plaintiffs and petitioners challenging the NFA over the years including in some of the cases listed below, even argued the NFA is not really a tax but rather a regulation, so it should be struck down. Courts rejected that argument.

The NFA can’t now conveniently be characterized as something other than a tax because it suits the powers that be of Gun Control Inc. If the Parliamentarian rules against our side on this, she should be ignored. It would be an utterly partisan ruling. Taxes can be eliminated via reconciliation, as taxes are inherently budgetary measures.

If the NFA was allowed to live for so long because it was a tax, it can be killed in reconciliation because it is a tax. No eleventh hour convenient recharacterizations should be tolerated.

“Petitioner does not deny that Congress may tax his business as a dealer in firearms. He insists that the present levy is not a true tax, but a penalty imposed for the purpose of suppressing traffic in a certain noxious type of firearms, the local regulation of which is reserved to the states because not granted to the national government. . . But a tax is not any the less a tax because it has a regulatory effect. . . Here the annual tax of $200 is productive of some revenue. 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.”

Sonzinsky v. United States, 300 U.S. 506, 512-514 (1937).

“Section 5851 forms part of the National Firearms Act, an interrelated statutory system for the taxation of certain classes of firearms. . . We do not doubt, as we have repeatedly indicated, that this Court must give deference to Congress' taxing powers, and to measures reasonably incidental to their exercise. . ..”

Haynes v. United States, 390 U.S. 85, 87, 98 (1968).

“As we stated above, the NFA is part of a comprehensive scheme to levy and collect taxes upon the making and transfer of certain firearms. The NFA's regulatory provisions need only bear a “reasonable relation” to the statute's taxing purpose.”

United States v. Aiken, 974 F.2d 446, 448 (4th Cir. 1992)

“To the contrary, it is well-settled that § 5861(d) is constitutional because it is ‘part of the web of regulation aiding enforcement of the transfer tax provision in § 5811. Having required payment of a transfer tax and registration as an aid in collection of that tax, Congress under the taxing power may reasonably impose a penalty on possession of unregistered weapons.’"

United States v. Gresham, 118 F.3d 258, 262 (5th Cir. 1997) (citing United States v. Ross, 458 F.2d 1144, 1145 (5th Cir.1972)).

“Grier raises, lastly, the issue of whether the NFA remains on sound constitutional basis given the FOPA's enactment. When the constitutionality of the NFA was originally challenged in the Supreme Court, the Court interpreted the NFA as a revenue raising measure passed under Congress' taxing authority. In Sonzinsky v. United States, 300 U.S. 506, 57 S.Ct. 554, 81 L.Ed. 772 (1937), the Court stated that the NFA “[o]n its face [was] only a taxing measure” and that any indirect regulatory effects of the taxes did not undermine Congressional authority to pass the law under its taxing power. Id. at 513, 57 S.Ct. 554. Grier argues that with the enactment of § 922(o ) the NFA's function as a revenue generating scheme was eliminated and, in the process, the constitutional legitimacy of the NFA was destroyed.

The six circuits that have rejected Dalton' s view on the FOPA's implicit repeal of the NFA have also rejected Dalton' s position that the NFA lacks a constitutional basis after the enactment of § 922(o ). The Court of Appeals for the Fifth Circuit, for example, reasoned that though the ATF “chooses not to allow tax payments or registration [of machine guns], it still has the authority to do so. Thus, the basis for ATF's authority to regulate-the taxing power-still exists; it is merely not exercised.” Ardoin, 19 F.3d at 180. More importantly, the Supreme Court has stated that “[a] statute does not cease to be a valid tax measure ... because the revenue obtained is negligible, or because the activity is otherwise illegal.” Minor v. United States, 396 U.S. 87, 98 n. 13, 90 S.Ct. 284, 24 L.Ed.2d 283 (1969). The Court's position is particularly applicable to the NFA which, despite § 922(o ), still retains some revenue generating capacity. As the Government notes, “to the extent that it remains lawful under § 922(o ) to transfer machineguns manufactured before May 1986, those transfers require the payment of tax.”

United States v. Grier, 354 F.3d 210, 215 (3d Cir. 2003)

“The registration provision works hand-in-glove with taxes that the statute imposes on the transfer and manufacture of firearms covered by the Act.”

United States v. Thompson, 361 F.3d 918, 920 (6th Cir. 2004)

“The National Firearms Act is facially constitutional. The Act, 26 U.S.C. §§ 5801 et seq. , regulates firearms, including “destructive device [s],” id. § 5845(a)(8), and requires the taxation and registration of firearms by manufacturers, possessors, transferors, dealers, importers, and sellers. See United States v. Aiken, 974 F.2d 446, 447 (4th Cir.1992). The Supreme Court has upheld the Act based on the taxation power of Congress, Sonzinsky v. United States, 300 U.S. 506, 514, 57 S.Ct. 554, 556, 81 L.Ed. 772 (1937), and we have upheld the Act in a decision involving a “destructive device.” United States v. Ross, 458 F.2d 1144, 1145 (5th Cir.1972). “Congress under the taxing power may reasonably impose a penalty on possession of unregistered weapons.” Id.; see also United States v. Gresham, 118 F.3d 258, 262 (5th Cir.1997) (“[I]t is well-settled that [the Firearms Act] is constitutional because it is ‘part of the web of regulation aiding enforcement of the transfer tax provision in [the Act].’ ” (quoting Ross, 458 F.2d at 1145)).

Spoerke's argument that the Act is unconstitutional as applied to him because pipe bombs are unlawful and cannot be taxed fails. “[T]he unlawfulness of an activity does not prevent its taxation.” Dep't of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 778, 114 S.Ct. 1937, 1945, 128 L.Ed.2d 767 (1994). “A statute does not cease to be a valid tax measure because it deters the activity taxed, because the revenue obtained is negligible, or because the activity is otherwise illegal.” Minor v. United States, 396 U.S. 87, 98 n. 13, 90 S.Ct. 284, 289 n. 13, 24 L.Ed.2d 283 (1969). The constitutionality of the Act as applied to Spoerke does not depend on whether he is legally permitted to possess the pipe bombs. Gresham, 118 F.3d at 263.”

United States v. Spoerke, 568 F.3d 1236, 1245–46 (11th Cir. 2009)

“Cox and Kettler argue that the NFA exceeds Congress's power. We agree with the government, though: the NFA is a valid exercise of Congress's taxing power, as well as its authority to enact any laws “necessary and proper” to carry out that power.”

United States v. Cox, 906 F.3d 1170, 1179 (10th Cir. 2018)

“And, § 5861 is merely a taxing statute, so just as the “why” regulates firearms with characteristics uniquely suitable for criminal purposes, the “how” of the regulation has little impact on lawful possession for armed self-defense. Section 5861 does nothing to offend the Constitution that has stood as a bulwark between the people and governmental overreach for centuries. It simply makes those who desire a weapon likely to breach the peace register that weapon and pay a tax.”

United States v. Rush, 130 F.4th 633, 643–44 (7th Cir. 2025)

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Kostas Moros

@MorosKostas

Jun 14

Being in a depo all day with a brain a bit fried afterwards, I didn't get a chance to read the amicus brief filed by the United States in the four consolidated cases challenging the Illinois AWB and magazine ban, one of which I have worked on.

It's a very big deal for the Trump Administration to be backing us in this way, and not even waiting for it to get to the Supreme Court to do so. We are very grateful. Let's take a look at the brief!

The federal govt explains it is filing the brief pursuant to Trump's Second Amendment executive order, and so "lawabiding Americans in this Circuit are not deprived of the full opportunity to enjoy the exercise of their Second Amendment rights."

That's a big one. Right now, there are two Second Amendments in this country; the full version intended by the Founders, and the hollowed-out version the antigun states have implemented. That must not continue.

The federal govt openly embraces the common use test of protected arms.

Read 15 tweets

Kostas Moros

@MorosKostas

Jun 5

A quick thread on the ruling. Mexico's basic argument (well, really it is the argument of the American gun grabbers who aligned themselves with Mexico) was that S&W is liable for crimes in Mexico because their conduct falls within the "predicate exception" of the PLCAA. "That exception applies to lawsuits in which the defendant manufacturer or seller “knowingly violated a State or Federal statute applicable to the sale or marketing” of firearms, and the “violation was a proximate cause of the harm for which relief is sought.”"

Specifically, Mexico alleged "that the manufacturers were “willful accessories” in unlawful gun sales by retail gun dealers, which in turn enabled Mexican criminals to acquire guns. And it sets out three kinds of allegations relating to how the manufacturers aided and abetted retailers’ unlawful sales: The manufacturers allegedly (1) supply firearms to retail dealers whom they know illegally sell to Mexican gun traffickers; (2) have failed to impose the kind of controls on their distribution networks that would prevent illegal sales to Mexican traffickers; and (3) make “design and marketing decisions” intended to stimulate cartel members’ demand for their products. The District Court dismissed the complaint, but the First Circuit reversed, finding Mexico had plausibly alleged that defendants aided and abetted illegal firearms sales."

The Court held, 9-0:

Note that Mexico has a constitutional right to arms in its constitution just like we do.

This is our ghost of Christmas future. Words on a page don't mean anything if we allow our rights to be eroded. And Mexico didn't even buy themselves any safety with all their gun control.

Sure, they blame American guns, but their homicide rate is 6x our own, so that doesn't hold water.

This is a bullshit statistic. If I recall correctly, it's 90% of guns they ask the ATF to trace. But the majority of crime guns they make no such request for, because they know the guns aren't from the US.

Read 17 tweets

Kostas Moros

@MorosKostas

Jun 2

https://twitter.com/MorosKostas/status/1929531775791108196

May as well do a proper thread on this. Read for my analysis/cope.

https://twitter.com/MorosKostas/status/1929531775791108196

First up is Kavanaugh, in a statement respecting the denial of cert. (Basically a concurrence in denying it)

Not that it will matter until SCOTUS actually polices the antigun circuits, but Kavanaugh confirms we are right that:

a. there is a "common use" test. Antigun states have denied this, arguing there is no such test, or if there is, it's only "commonly used for self-defense."

b. it is historically-based (i.e., not part of the phony "plain text" analysis). Antigun states have argued it's at the plain text step.

Not strong enough to get granted cert now though, I guess?

Read 17 tweets

Kostas Moros

@MorosKostas

May 10

I've generally stopped doing threads on hardware rulings, because they are basically the same trash bad-faith analysis over and over again:

1. Declare that the guns or magazines at issue are not "arms."

2. Even if they are arms, banning them is analogous to pre-1900 restrictions on the concealed carry of certain weapons like bowie knives.

But since it's been a while since I've done such a thread, and the Washington v. Gator's Custom Guns ruling is short, I'll do a thread on it to shake off the rust.

This is a Washington State Supreme Court case about the state's magazine capacity law banning magazines of over ten rounds. It is not a federal case. However, the analytical flaws are the same.

Right from the start, they are unjustifiably limiting the scope of the right. The Second Amendment is NOT just about personal self-defense, and the language from the Supreme Court is that arms commonly used for lawful purposes are protected.

While magazines over ten rounds are commonly used for self-defense as millions of people carry such magazines daily, they are also used for target shooting, competitions, and in an extreme scenario, they would be used to resist foreign invaders or tyrant's armies.

Another tactic: get antigun academics to lend their credentials to utter bullshit, which antigun judges eat right up because a "Professor" said it.

In this case, Baron is smart enough to know that cartridge boxes are not the historical analog to magazines. Cartridge boxes still exist today. The analog to magazines today is....fixed magazines and cylinders in repeating rifles and revolvers. The fact that they are removable today does not make them not an "arm," nor does it make them just a mere cartridge box.

They are arms because they are undoubtedly part of the “weapon of offence” that a person “takes into his
hands, or useth in wrath to cast at or strike another.” District of Columbia v. Heller, 554 U.S. 570, 581 (2008) (citing founding-era dictionaries).

Read 12 tweets

Kostas Moros

@MorosKostas

May 1

Time for a thread on the amicus brief submitted by the United States (!!!) in Wolford v. Lopez.

To my knowledge, it is the first-ever Supreme Court brief filed by the United States in full support of petitioners challenging a gun law as unconstitutional under the Second Amendment, but someone correct me if I am wrong on that assertion. The amicus brief in Heller that the Bush administration did was more wishy-washy (i.e., yes 2A is an individual right but please remand because the analysis was wrong).

Great introduction that goes into the ramifications of the vampire rule. And as our amicus brief will cover, this was intentional. The vampire rule was created by antigun academics who openly stated the aim was to discourage carry.

This is why we insist on calling it the "Vampire Rule" in our briefing, a term invented by @2Aupdates.

It is NOT actually a "default" rule, because it is not default for anyone but those carrying with a CCW permit. A whole bunch of other categories of people carrying are exempt. The sudden concern with "private property rights," from people who have never met regulations affecting private property they didn't love, is totally phony.

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