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)

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.

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.

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.

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.

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.

Alright, I think I'm the last one getting to it as I was driving when this released, but time for a thread on the en banc Duncan ruling.

For those not as informed, this loss was 100% expected. it's the same panel as the 2020 en banc, and the same exact result, 7-4. For the judges in the majority, Bruen clearly changed nothing because they decided this result before even thinking about the relevant law. We all know it, and it's important we be open about that, as dissenting judges have been in the past.

But in an important way, this is actually a win on timing. They could have held onto this for way more time. Instead, CRPA can seek cert, and maybe even be considered alongside Snope.

This thread is also a historic one because I have to figure out how to cover the first-ever video dissent! Bruen was clear that judges are not supposed to engage in interest balancing, and yet every hostile ruling on magazines or "Assault weapons" begins by heartstring-tugging about mass shootings.

Besides being wrong on the law, it's also wrong on policy. California's laws have not stopped it from having a disproportionate share of mass shootings.

En banc denied in May v. Bonta, Carralero v. Bonta, and Wolford v. Lopez, our case and two others concerning overexpansive sensitive places laws in California and Hawaii. Not really surprising. Now we will either seek SCOTUS cert review, or, go back down to get a final judgment.

There were 8 dissenting judges from the denial of en banc review. A thread on the dissenting opinions. Ok?

Not sure why they didn't just join the VanDyke dissent....maybe he said mean things about their colleagues lol

The Snope reply brief is in. This concludes the briefing for the cert petition (aside from any amicus briefs coming in support of the state).

Let's take a look at what they argued in response to Maryland's opposition. A strong opening here, basically telling the Court that if they don't put a stop to this, it will have only itself to blame when the abuse continues. I would only add that the reason the lower courts have all gone the same way is because the more pro-gun circuits never see such cases, being generally made up of more pro-gun states.

Let's take a look at Maryland's opposition brief to the cert petition in Snope v. Brown, the case we are all hoping the Supreme Court decides to take so it can settle the "assault weapon" issue (and hopefully some other issues).

Props to the Maryland attorneys for getting this done despite having to type through the tears of Kamala's loss. They always focus on this language from Heller, but ignore four things:

1. It was dicta inserted mainly to keep Justice Kennedy on board.

2. It was clearly referring to machine guns, not semiautomatic rifles.

3. Heller's author and Bruen's author dissented in Friedman from the denial of cert, and were very clear that semiautomatic rifles like the AR-15 may not be banned.

4. SCOTUS GVR'd this very case after Bruen. If they thought this was a settled question, no reason to do that (and it's why I'll be very mad if they deny cert now!)

A thread on our final judgment from Judge McGlynn in our case of FFL-IL v. Pritzker. We represented Federal Firearms Licensees of Illinois, Guns Save Life, Gun Owners of America, Gun Owners Foundation, Piasa Armory, and individual plaintiffs in this challenge to the euphemistically named "Protect Illinois Communities Act" (an "assault weapon" and magazine ban). The "Rorschach test of America's gun debate." I like that.

Note that California law classifies ALL Glocks as "unsafe handguns" because they do not have a compliant chamber load indicator, lack a magazine disconnect mechanism, and until our lawsuit caused California to repeal the requirement, of course lacked microstamping.

The only reason we can still buy Gen 3s is because they are grandfathered in, but they are still "unsafe handguns". We can't buy more modern Glocks new in gun stores (just secondhand from exempt cops, or from those who moved here with them from other states).

She supported the Unsafe Handgun Act and expanded it such that microstamping began to be enforced in 2013. So why does she own an "unsafe handgun"? If a Glock is "safe" enough for Kamala Harris, she should call for the repeal of the handgun roster so Californians can buy more modern Glocks.

The lives of millions of regular people aren't worth less than hers.

This 1890 congressional debate on a bill banning the carrying of weapons in Washington DC is interesting in how much it repeats so many things we are still arguing about to this day.

First, the text of the bill: Congressman Blount knew how this could be abused, even with the apparent allowance for open carry.

No, it absolutely isn't "just wrong". Let's just give one simple example: the fact that the Second Amendment covers an individual right.

The big names denied or obfuscated this for decades. Given that, even as an obviously biased lawyer, I expected that when I dug into 18th and 19th century commentary on the Second Amendment I'd find lots to support their view.

I found almost nothing of the sort. My thread on Second Amendment commentary pre-1900 is now over 60 entries long, each supporting the individual right to varying degrees, and each linked to the full source in Google Books for anyone who wants to confirm the context. I would only find out after I did this research that @davekopel did this same project several decades ago, and had already cited many of the sources I found again. I'm not sure why the debate didn't end then.

@2aHistory continued this work after I moved on from it, and he has found dozens more. We decided to find that many in order to preemptively rebut the claim that we were "cherry picking". We sure found a lot of "cherries"!

The mainstream historians, by contrast, had generally gone along with the lie that the individual right is something gun rights activists made up in the 1970s. Not one of them seriously deals with the overwhelming pre-1900 commentary confirming the individual right, which includes everyone from delegates of the constitutional convention, other contemporaries of the founders, Senators, Congressmen, abolitionists, early civil rights activists, famous legal scholars, and even President Grant.

Modern academics simply do not have a better understanding of the Second Amendment's scope and purpose than, well, everyone of any note who commented on the matter pre-1900. Period. If they suggest otherwise, they are engaging in activism, not history.

To be sure, there can be plenty of historical debate on the degree of gun control allowed. That is where the pre-1900 commentary is a bit more split and thus debatable. While everyone generally agreed there was an individual right to own and carry arms, and common rifles and handguns were included in that, that is where the agreement generally ends and the evidence gets more murky.

But the major historians never gave any apology for how wrong they were on the individual right. When they do engage with the pre-1900 commentary, it is to cite just a couple examples, claim they are "outliers", and move on. More often, they don't even seem to know it exists. None of them that I've seen honestly acknowledge the sheer weight of authority on this point. They continue to accuse the Supreme Court of "law office history" claiming they are taking history "out of context", but they never seriously explain why.

For example, when President Grant complained to Congress that the KKK was trying to deny newly freed former slaves their right to bear arms, what context support anything other than an individual right? Was President Grant concerned that black men would not be able to fight for the state militia of Alabama, Mississippi, or other former confederate states? Of course not. The only way the statement makes any sense is if their is an individual right whose existence was so obvious it wasn't even worth commenting on, except insofar as it was being denied to freedmen.

These prominent academics are also nauseatingly elitist. They all praise and cite each other, even when they are plainly wrong. @serow_man already pointed out how at least one of them (and probably more) praised Michael Bellesiles, who was proven to be a fraud. (And they continue to disparage Clayton Cramer in their expert reports, who was the one who proved their buddy Bellesiles was a fraud).

Their efforts to mislead continue to this day. They tell judges with a straight face that historical bowie knife carry restrictions are like modern bans on common rifles, knowing full well that the actually analogous weapons of the era (winchester rifles, colt revolvers) were never meaningfully regulated, and certainly not banned. They pretend concealed carry restrictions were the same as full carry bans, and we have to spend hours of work calling them out on it. On and on it goes.

The mainstream prominent historians have been getting their clocks cleaned because they are either engaging in groupthink at best, or outright lying at worst. They don't deserve to be taken seriously until they stop carrying water for the gun control movement. They are using credentialism to hide gun control activism. There is nothing wrong with activism, I'm an activist. But I don't hide it. They shouldn't either.

https://x.com/MorosKostas/status/1827873669164769460

Congrats to @2AFDN, @gunpolicy, and all other plaintiffs in Nguyen v. Bonta.

The panel has REVERSED the stay.

Fox News Poll* finds that Americans prefer Trump over Kamala on gun policy by three points, 50-47.

Suggests the overton window has indeed continued to shift in our favor, and squares with the Marquette Poll showing 69% approval for Bruen.

*which is actually a very highly rated pollster, despite its affiliation to the partisan news channel. static.foxnews.com/foxnews.com/co…

The 4th Circuit en banc reached its expected ruling in Bianchi, upholding Maryland's ban on common rifles.

What was unexpected was the speed of the ruling. I, and most others, thought they'd stall as long as possible so SCOTUS could not hear the case this term. And by then, who knows who is on SCOTUS, and Kamala could be picking replacements. Such hackery was even more expected after they took the crazy step of taking this case away from the three judge panel and going directly to en banc review.

So while I'm about to be very critical of what I expect will be a trash opinion, I will say something nice first: thank you 4th Circuit for not taking the hack approach and withholding a ruling to stall for time. And taking it away from the panel, in hindsight, moved this along faster than waiting for a ruling THEN doing an en banc anyway.

Now the pressure is on for SCOTUS. This case was previously GVR'd, and is a final judgment. No excuses for not granting cert. And no, waiting for a circuit split isn't a real answer, because the pro-gun circuits never hear AWB cases.

Anyway, let's take a look at the ruling. It's long, so this will be more of a skim than normal. This canard of "military small arms are not protected!" is completely ahistorical, and it is not true that the Second Amendment is solely about personal self-defense.

That said, AR15s and similar rifles are clearly also owned for self-defense, as even a WaPo survey confirmed.

Alright, let's take a quick look at some highlights from our amicus brief in US v. Allam before I call it a night.

The case is a rare opportunity for a friendly circuit to hear a "sensitive places" case, which is what caught our interest. At issue is the federal gun free school zones act, which blocks carry within a thousand feet of a school, subject to some exceptions. The case is not about carry on school campuses themselves, just the zones around them. The petitioner is not particularly sympathetic. But he is mounting a facial challenge, and so we approached this argument from the perspective of regular citizens.

My Rahimi live thread here. The basic holding is, as Chuck notes, "When an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment."

8-1 case.

ROBERTS, C. J., delivered the opinion for the Court, in which ALITO, SOTOMAYOR, KAGAN, GORSUCH, KAVANAUGH, BARRETT, and JACKSON, JJ., joined. SOTOMAYOR, J., filed a concurring opinion, in which KAGAN, J., joined. GORSUCH, J., KAVANAUGH, J., BARRETT, J., and JACKSON, J., filed concurring opinions. THOMAS, J., filed a dissenting opinion.

Getting my toddler breakfast, then we begin 🤣 First bit of good news comes at the start of the analysis. This language would seem to call into question laws that disarm AFTER a restraining order has ended. California bans people who had a restraining order from carrying for five years.

A thread on Garland v. Cargill. I am not a technical expert on firearms nor experienced in these sorts of agency rule challenges. But I'll do my best.

Notably, this case is not at all about Chevron deference - ATF disclaimed that and just argued their bump stock ban was faithful to the law, no deference required. This is the whole fight in this case. What does "single function of the trigger" mean?

I think it is pretty clear that bump stocks do not make it so that semiautomatic firearms can fire automatically with a single function of the trigger. They just essentially make the user pull that trigger faster.

It's kinda interesting how the Sears catalog often advertised guns for pocket carry. This one is from 1901.

"Expert" historians for the state like to claim that carry was uncommon in the 19th century. The large amount of ads boasting a handgun could be carried concealed seem to go against those claims.

Also amusing: Colts were by far the most expensive, and apparently did Apple-style price protection. In its Colt section, Sears complains Colt won't let them list the pistols any lower.

The old Sears catalogs are a ton of fun to look through, and not just for guns.

archive.org/details/catalo…