Random thought of the day

Repeal of NFA ‘34 in its entirety isn’t viable in the near future. Not via courts and not via legislation.


But many parts of NFA ‘34 probably are vulnerable. Short barreled rifles and shotguns would seem to be at the top of the list with suppressors not too far behind.


In the next legislative session we should attempt to repeal some of these nonsensical restrictions. It may not be as cool as getting access to new full autos but it is probably a weak spot in the anti-gun defenses. And anytime you can cause the opposition to spend resources defending a losing battle you should give serious consideration to engaging them on that front. It also somewhat reduces the power of the ATF.


Even if it costs us twice as much (in dollars and political capital) as it does them they have far less than one half as much to spend. Every backward step they are forced to make brings them one step closer to the cliff of oblivion.

26 thoughts on “Random thought of the day

  1. Suppressors may actually be easier than short barreled rifles. There’s an obvious health issue plus they are routinely available in some of those European countries the elites try so hard to emulate.

    Given the noise complaints from range neighbors, I’m surprised suppressors aren’t required.

  2. More important than the money is the fact that once again the opposition will predict blood in the streets and be shown to be dead wrong just like they were on the “assault weapon” ban and concealed carry. I think that this additional demonstration of their loose grasp the opposition has with reality and/or the truth will snowball and make each additional step a little easier.

  3. Alan,

    You may be right. But my thought is that the phrase “tool of assassins” may be too difficult for us to overcome. Short barreled rifles and shotguns don’t suffer as much from such baggage.

  4. I’m with you. Ending the machine gun registry is a lost cause right now, and might just give the Bradies and MAIG the traction they need.

    But SBRs and SBSes? That’s another matter. Yeah, it gives the opposition a headline—“NRA wants to legalize SAWED OFF SHOTGUNS!!”–but it also lets us argue from a position of strength. The SBX rules are so arcane and incomprehensible they make the “assault weapons” ban look coherent. It’s always good to go into a debate that implicitly demonstrates the stupidity of current gun laws and forced the opposition to defend them.

    It may not be as cool as getting access to new full autos…

    I’m not so sure about the Hughes amendment. It might be vulnerable to a judicial attack. The NFA was originally ruled Constitutional because the Court refused to analyze Congress’s motivations in assessing the “tax”. As long as revenue _could_ be raised, the Court said, it was prepared to accept that the NFA was a legitimate revenue-generating mechanism. As the Hughes Amendment precludes machinegun-tax income, the antis in Congress may be forced to choose between NFA and Hughes.

    Not that the Court is guaranteed to rule on the same grounds again (they’ve shown a wildly expanded willingness to accept unconstitutional federal regulation since the 1930s), but having the rationale explicitly connected to revenue by precedent can only help us.

  5. …the phrase “tool of assassins” may be too difficult for us to overcome.

    Maybe not. A well-composed video that composited Hollywood images of silencers (“thwip!”) with real-life suppressor reports could easily go viral on the geekweb, and broadly change a lot of people’s opinions about gun rights and the motives (or familiarity with reality) of gun controllers.

  6. I have to agree with Elmo, the Hughes amendment and the 10th circus have already said the 34ths NFA act has issue because they, read the ATF/Feds refuse to allow people to pay the tax on post 86 fire arms. Thats invalidated it as a tax raising bill. I want the pro-2nd A groups to fight for all of our rights, we do loose all of the fights we dont show up to.

  7. I want the pro-2nd A groups to fight for all of our rights, we do loose all of the fights we dont show up to.

    But Joe is right about choosing our battles. All the rights are important, but it’s very, very important we fight for them in the right order. Go off demanding unregistered machine guns by mail order and we could reverse all of our recent public image gains and handing the Bradies a hell of a lot of support.

  8. dagamore,

    I understand the entire justification for NFA ’34 has been invalidated by the Hughes Amendment. But we have many, many examples of the court not requiring the use of logic or consistency in their decisions. It is as much or more about public opinion than it is about constitutionality. Otherwise how did we lose four votes in Heller and McDonald? Just read the dissenting opinions! They totally ignore facts and misrepresent the others to arrive at a conclusion which matches their beliefs.

    If the courts are forced to make a decision on machine guns we need to have public opinion on our side first. I think that is possible but only if we build the proper foundation. Part of that foundation is removing other pointless laws from the books.

  9. On the issue of full-auto guns, I would at LEAST like to see some modifications to the rules on dealer/manufacturer purchases. As things stand, a dealer must have a “law enforcement request” to purchase post-86 full-auto guns which means that for ANY new weapon we have to have police interest PRIOR to purchasing a weapon to use as a demo. It would be nice if we were simply able to purchase limited numbers of a firearm to establish interest. It is VERY difficult to generate interest with most of the small departments around here without being able to demo first and most are hesitant to approve letters (and the process HAS been abused) and it has limited our ability to demo new weapons to develop our business.

  10. “But my thought is that the phrase “tool of assassins” may be too difficult for us to overcome.”

    No more difficult than overcoming the “Assault Weapons are Machine Guns” myth. That was actually pretty darn easy.

    I mean first up “Assassins” are a pretty rare creature. More common are gang-land “hits” and they use knives, guns, clubs, bare hands, ect. They tend to not use suppressors because they’re not readily available, make their guns less concealable, and frankly don’t quiet the gun enough for them to avoid detection.

    Not to mention when shots ring out in the inner city, who comes running?

    “tools of assassins” is right up there with “AWB Machine Gun” “Readily convertable to full auto” “Spray fire from the hip” “Can shoot down a jumbo jet” “Gunfights over parking spots” ect ect ect.

    If we fight it they will lose!

  11. I think the antis imagine if we can easily own a silencer, then gun owners will begin wearing black dinner jackets, adopt a sophisticated manner of speaking, and wait in dark rooms to dispatch our enemies. After which, we’ll find a hidden drawer with a computer disk.

    I’ve gotta go practice hitting someone in the center forehead while shooting from the hip…

    More seriously, how many of us keep electronic hearing protection next to our HD weapon. I don’t. If I ever need to use my weapon, I’ll probably lose a lot of hearing – not that they care.

  12. I say whatever restrictions we can loosen, the better off and more free (but I repeat myself) we all are. Also, they don’t fight fair, so why should we think twice about attacking them where they are weakest? I agree, choosing our battles carefully is important or it may take a hundred years for us just to get back to where we are in terms of regulation. It took a long time to get ourselves into this mess.

    JeremyS,

    You’ll probably be fine unless you have to discharge a *lot* of rounds. When I was a kid (about 14) I found my dad’s pistol & (having no training & being curious and about 14) started playing with it, taking it apart, trying to figure out how to get it to work. It was a WWI bringback that had been in the family & the manual was in German, which didn’t really help, but I had mostly figured most out the mechanism when it went off (I was in a small room in the house). I managed to shoot myself through the finger (almost lost it entirely, slight nerve damage to the finger but no hearing loss.

    That was pretty much the only gun safety lesson I ever needed. Dad sold the gun, and it was over 10 years before I got up the nerve to touch another one (this time a rifle, and–having learned my lesson, some classes in how to use it).

  13. JeremyC,

    You mean you don’t walk around with a suppressed .32 acp shoved into your armpit at all times!?

    They told me that it was the law at my CCW class!

  14. I say we go for it! We’ve got all sorts of things going on at the State level, but we’ve done very little in regards to Federal law. We have plenty of stuff to challenge… the NFA, ‘Sporting Use’ clause, Hughes Amendment, import ban, etc… And none of it is ever going to go away if we don’t actually do something!

    Precedent is starting to look up for legal challenges to certain things, Congress is looking like it’s going to be moving in a more ‘gun friendly’ direction over the next couple years. We all know the anti’s are going to be pushing their usual bills… so why not give them some competition for once… we need to start pushing some major pro-gun bills.

    We’ve been taking the fight to them in the courts… Time to do it in Congress.

    Just my $0.02. 🙂

  15. Joe, I think overturning NFA ’34 is the longest of the longshots. However, I think going after the Hughes Amendment in FOPA ’86 would and should be on the short list Alan Gura et. al. go after. Would it be ‘popular’? Probably not, considering the number of folks who have significant portions of their wealth invested in these weapons. Would it be popular with us ‘peons’ who see advertisements for Title 2 firearms in Shotgun News and other periodicals and think ‘lottery guns’? Absolutely.

    Heres why. Stick with me here, I’m new to NFA stuff and tend to get confused quite a bit by it. If I remember my US v Miller correctly, they ruled a SBS was not covered under NFA ’34 because it was a weapon not in common use by the military at the time and thus subject to the $200 tax.

    GCA ’68 further curtailed this by stating that what was there in ’68 was it, and allowed an amnesty period which never materialized.

    (I get a little confused on this next part, as since there was not supposed to be anything registered after the ’68 amnesty, there were still MGs being manufactured/converted right up until May ’86 when the Hughes Amendment went into effect.)

    Then come FOPA ’86 and the Hughes Amendment. Leaving aside the obvious taxation on the exericse of an individual right (which galls me to no end), wouldn’t this be right up there with the Heller and McDonald decisions? It bans an arbitrary class of weaponry and creates a caste system of ownership in that unless you have the disposable income to procur even a ‘cheap’ MAC 10 at $3500+ or are part of the ‘elite’ law enforcement community, you aren’t getting in on the action.

    Sure, I can build and procur all the SBRs, SBSs, AOWs, and suppressors I can afford to build/buy, but by banning one class of weapons explicitly covered under NFA ’34 (and in common use around the world, let alone the country) wouldn’t that qualify under all the penumbras and plethoras the USSC placed in those two decisions?

    Just asking…

  16. @hazmat – I think you’re a little confused regarding the effects of the ’68 GCA. What happened with that was that it placed a ‘sporting purposes’ test on imported firearms. This effectively banned the importation of machine guns, nothing more. Domestic manufacture was still permitted for civilian use until ’86.

  17. hazmat,

    Your logic may be perfect but the courts don’t adhere to logic if public (or the judge’s) opinion is strongly opposed to the conclusion.

    The sporting purpose test may be innocuous enough that the logic may punch through.

  18. I imagine the whole “short barreled” anything would be easy to get rid of.

    If my understanding is correct, when NFA ’34 became law, the initial reasoning for including anything <26" was to prevent anyone from easily concealing a firearm. At the time, concealing firearms were considered to be something only criminals did. Public opinion was that an honest person carried openly if they carried. There may have been more behind the law in preventing minorities from concealing arms, I don't know.
    However, now that concealed carry has caught on to the extent that it has, there is really no reason for restrictions on any firearm that can be easily concealed or hidden.
    There has only been one or two crimes committed with an NFA registered machinegun, but I would imagine that the number of crimes committed with an NFA shorty or suppressor are even lower.

    Europe requires suppressors. Canada doesn't have our barrel length requirements, if I recall. Those are two firearm regulations I can understand and get used to.

  19. I would say that the absolute best way to start would be to challenge the CLEO signoff. It is 100% discretionary and clearly a violation of Equal Protection.

  20. A lot of good points have been made by other commenters, but I’ll put in my two cents anyway…

    I think the best approach may not be the courts, but the legislature. Think about the racial civil rights issue of the 1950s and 1960s…first they won in the public’s mind, then they won in the courts, and finally got legislation passed. We’re in the position that Martin Luther King was in around 1956-58. What’s needed now is a Firearm Owners Rights Act.

    I also think that an attack on NFA-34 needs to be approached as three separate battles.

    First, go after suppressors. Given the noise pollution issues, we can make a good case for removing suppressors from NFA purview entirely. Maybe treat them as ordinary firearms requiring a NICS check, but nothing further.

    Second, go after the Hughes Amendment. I think this might just be attackable in court…but we were close to getting an amnesty declared when Obama got into office. Elect a pro-gun President, and it’s likely to happen. Then push the idea that allowing the sale of full-auto firearms to ordinary citizens (maybe with a hefty manufacturing tax if politically necessary) will support the development process for military designs. Draw a parallel with suppressors – the small but healthy civil market allows the military to buy first-class designs with a lot of competition.

    Third, go after the administrative burdens. Faster Form 4 turnarounds. Electronic Form 4s – take advantage of the fact that many NFA owners already own one item, it should not be too much of a problem to speed the process for a second. Ditch the CLEO sign-off.

  21. I think Mike M. has a viable idea there. I would include barrel and overall length restrictions, the entire AOW definition, and the bore size restrictions on destructive devices. These could all go in an extra step or two if necessary, but I feel they are all arbitrary enough that they could be vulnerable.

  22. I think one aspect of the Hughes Amendment is attackable — by presenting it as a case whereby either the Hughes Amendment is 100% unconstitutional, the Hughes Amendment makes the NFA 100% unconstitutaional in regards to machineguns, or both the NFA and Hughes Amendment can be left undecided, yet new machineguns for individuals may be legally registered, just by just interpeting Hughes literally.

    Hughes has an exemption for guns made with the Government’s OK.

    What’s a Form 1? Government approval to make and register a “firearm” (NFA definition, for those of you not familiar with the NFA — it DOES NOT mean you have to do a Form 1 to make an AR15, unless you are making an SBR AR15 or other gun that requires NFA registration).

    Hughes could be interpreted as prohibiting the registration of transferrable guns made after May 1986 BY AN FFL/SOT. But a Form 1 could be ruled as not prohibited by Hughes, without invalidating a single word in the law! (The difference is that a Form 1 gun is INDIVIDUALLY approved by the Government prior to construction, while an FFL/SOT manufacturer has paid for a legal status that gives him blanket authority to manufacture any guns – not counting Destructive Devices, which require an additional SOT – he wishes, only informing the government within 24 hours afterwards when he faxes the registration forms in.)

    If interpreted as not applying to an unlicensed citizen who is making one for “personal use”, then Hughes does not inhibit revenue gathering. Nor are citizens prohibited from acquiring NFA firearms if they can Form 1 one, thus sidestepping any 2nd Amendment challenge on the grounds that Hughes is a blanket prohibition of a whole class of “arms”. (Whether or not a $200 “making and registering” tax is deemed an “infringement” is an issue best left OUT of the first case. . . argue that later, after Hughes is gutted in regards to Form 1. If you want to win, you fight your battles IN ORDER, not “go ugly early”, no matter HOW idealogically stimulating it feels. Machineguns make people nervous — get the camel’s nose under the tent so you can point out WITH FACTS how the nonissue that removing some NFA restrictions turns out to be before coming back and challenging the REST of the NFA.)

  23. I’ve often thought that one way to get the Hughes Amendment nullified, is to reattack the transfer/making tax. Again, that whole taxation of an individual right aside.

    Simply raise the tax. Say, $1000 to make and register a F/A, $500 for a SBR/SBS, $200 for the suppressor, and $100 for an AOW. Although this would be extremely subject to abuse by those writing the legislation.

    Now the Blood In The Streets crew would scream absolute bloody murder (no pun intended) and it would take a lot of ad and public awareness campaigns, as well as a real, no kidding grass roots battle to do so, but that may be one way to get around the last 42 yrs and get back to the original intent of NFA 34.

    Then we could go after the taxation of a specifically enumerated individual right just like poll taxes and literacy tests to vote and own land. Jews in the attic test? Or maybe an Underground Railroad/Reconstruction Test. I’m sure cases could be made, just like the others made by guys like Joe, Alan Gottlieb, Clayton Cramer, and David Hardy. Point out the reasons behind GCA 68, the Chicago Democratic Convention and other racial unrest of the era.

    I’d bet there would be plenty of support, considering the popularity of events like Knob Creek, the Buffalo Chip MG Shoot, or the many other shoots around the country. It would basically come down to having our pro-gun legislators having the cajones to put it up and keep putting it up despite the politically leanings of Congress.

    Of course, if Wunderkind Alan Gura were to work his magic again…I’m sure there wouldn’t be a shortage of folks who would be willing to file a Form 1 to get standing to start the whole thing off.

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