The Path To Repeal The National Firearms Act AKA The NFA

When the NYSRPA vs Bruen case, usually just referred to as Bruen, was resolved in the favor of the New York State Rifle And Pistol Association by the Supreme Court of the United States, it was cause for celebration in the community of Second Amendment Radicals and armed citizens. Finally, after over a decade since the Heller decision, which affirmed the Second Amendment as an individual right, there was federal-level movement on 2A in a positive way. In a nutshell, Bruen determined that governments could no longer impose arbitrary and vague conditions on the right to carry a firearm in public. The days of may-issue firearm carry permits were at a close. Permits could no longer be denied just because the issuing authority was having a bad day, hated the race of the person requesting one, or hated guns in general. Permits had to be issued within a clear and simple framework, not connected to finance, the person’s situation, i.e. “good reason”, and so forth. On the books, every state in the Union is now at least shall-issue, with the majority of states being some form of permitless carry as of August 2024.

More importantly, Bruen also established a new metric for firearms laws in the US. Any law on the books, or proposed law, must meet a requirement of historical tradition in order to be consistent with the Second Amendment. For example, laws that prohibit adults between the ages of 18 and 21 from purchasing or carrying a pistol are no longer considered valid post-Bruen, with several state laws restricting the carry of a pistol to those over 21 having fallen in recent months. When the nation was founded, there was no codified age requirement for someone to carry a pistol, thus laws restricting that are now commonly considered repugnant to the Second Amendment…

With the Bruen test in place, an obvious target of course would be the National Firearms Act, aka the NFA. The infamous law heavily restricts and taxes all the fun stuff. Machine guns, short-barreled rifles & shotguns, silencers, and things that really go boom. As there were no restrictions on action, accessories, and barrel lengths of firearms during the time of the founding, the NFA should be invalid under Bruen, and thus subject to repeal, right?

Yes, but the devil is in the details…

Of course, the Bruen decision did give the firearms community a lot of hope, with a healthy dose of skepticism mixed in. The Supreme Court rarely touches the Second Amendment, but when it does, it’s often earth-shattering. In an ideal world, all the laws that fail the Bruen test would have automatically been stricken from the record. Magazine capacity restrictions, carry permits, taxes on weapons based on action (i.e. machine guns), registration requirements, and the like would have all fallen immediately after the decision.

However, the Court really doesn’t work that way. The decisions of the Court set precedent, and the only laws repealed as the result of a decision are laws functionally similar to the specific law being called into question at the Court. Often, these similar laws will be pending review and cert at the Court, and the Court will kick those related cases back to the district judges, with explicit instructions on what to do now that there’s been a decision on a related law. For example, other may-issue challenges pending cert were kicked back post-Bruen, with the lower courts being told to review the laws while applying the Bruen test. Which basically meant each and every state that had a may-issue scheme for carry permits had to revise their procedures to a shall-issue system at the minimum, otherwise legal action would follow.

Since the NFA wasn’t even remotely being called into question during the Bruen proceedings, the crown jewel of federal gun control has remained untouched for now, save for remotely-related things like Garland v Cargill, which really wasn’t about bump stocks, but was about federal overreach.

Anyways, the Bruen test is in place, and the National Firearms Act of 1934 is repugnant to the Second Amendment, especially when the text, history, and tradition test of Bruen is applied. So, how do we get this onerous piece of legislation stricken from the record, permanently?

There’s two major routes, the slow and easy route, and the slow and hard route. We’ll fisk those routes in rambling detail now.

The Slow And Easy-Ish Route - The Courts

Courts that rule on laws such as district courts, state Supreme Courts, and the federal Supreme Court usually don’t go looking for laws to analyze and rule on the constitutionality of. If they did, they’d be working 24/7/365 forever. The current procedure for lawmaking is “pass a law and hope no one notices how horrible and repugnant to the Constitution it is”, thus our legal code is simply chock-full of abhorrent policy.

So, what happens is that people have to bring cases to the Court, usually by the appeals process. For example, NYSRPA vs Bruen was the end result of years of legal battles where NYSRPA members Robert Nash and Brandon Koch sued various New York State officials involved in issuing firearms carry permits, after being denied repeatedly for not meeting the vague “good cause” requirements of the 1911 Sullivan Act. The Supreme Court didn’t go looking for laws like the Sullivan Act, someone had to challenge the law in lower courts, and fight their way up the byzantine ladder to SCOTUS. For reference, Bruen, in it’s entirety, took around six years to resolve favorably.

Anyways, a challenge to the National Firearms Act via the courts would have to follow a similar path.

Firstly, a little sidebar on this process. As lawyers like to say “bad cases make bad law”. We saw this a few months ago with the Rahimi case. The crux of the Rahimi case was whether someone could be temporarily disarmed if a court, and only a court, determined that they were a threat to someone else. Note, this has nothing to do with red flag laws.

Anyway, Zackey Rahimi himself is a complete scumbag. Rahimi was assaulting his then-girlfriend in a parking lot in December 2019, and shot his gun at a witness. He was arrested, subject to a restraining order which prohibited him from possessing firearms, and subsequently violated that order, flagrantly and repeatedly. Rahimi wasn’t just some random with bad luck, he actually was violent towards others, before and after the restraining order was issued. How he managed to not get shot in response to his actions is rather puzzling. Anyways, his attorney argued that since he was not convicted of anything, his Second Amendment rights were intact. Eventually this case ended up in front of the Court, which in an 8-1 decision argued that there was enough history and tradition in our nation’s firearms laws and procedures to rule that Rahimi being disarmed under the color of law was constitutional.

Justice Clarence Thomas dissented, arguing that his colleagues on the Court failed to cite any relevant regulations present at the time of our nation’s founding, but instead pointed to more vague historical statutes concerning the misuse of firearms, as there were no laws at the time concerning domestic abusers possessing weapons. Thomas was correct, even if his dissent was wildly unpopular in the media.

Rahimi did reveal that in many ways, the Court is a political and cultural animal. Rahimi was a bad case. He wasn’t some down-on-his-luck guy dealing with a vindictive girlfriend that used the law to her advantage. He was a documented threat to others, who for various reasons hadn’t actually been convicted of his crimes. The Court agreeing with a known violent person just wouldn’t have played well in the press. If one reads between the lines even in the majority opinions, the door is still open for a “better case” to be heard by the Court in this regard.

And, that’s where any action on the National Firearms Act that is to be presented to the court needs to start. The case needs to be “better” in that the petitioner should be of good moral character, at the very least. Essentially, what we’re looking for here is a veritable saint, who has been railroaded under the NFA by the government.

For example, a person with an otherwise clean record and of good morals happens to possess a AR-pattern rifle with a barrel length of say, 14.5 inches. Under the NFA, this AR would need to be registered as an SBR, and the $200 tax paid and the proper Forms filed with the ATF. How he came to build or possess the weapon without hearing of the NFA isn’t really relevant in our hypothetical. He built it, he inherited it, whatever. He has it, and didn’t tell the Feds. He’s a good person, and the rifle is literally sitting in his safe unless he takes it out to the range. Which one day he does.

A lot of gun ranges ask that if you are to bring NFA items along, you bring a copy of your ATF Form along so they can verify all is on the up-and-up. Since our guy doesn’t have the Form because he never registered the gun, the range asks, and they stop him from entering because he doesn’t have the paperwork to make the weapon “legal”. The range doesn’t have arrest powers, but the ATF is there that day for an audit, and the industry inspector notices the commotion, and makes a note of it. A few days later, an armed ATF agent (inspectors aren’t armed, agents are…) comes in with a warrant to pull video from the range’s surveillance system. Since the range has to comply, or lose their FFL, they dump the video for the ATF to review. The system tags the license plate of our hapless victim, and the ATF swoops in for the kill, maybe literally.

Our guy gets run up, his SBR seized, and it’s off to federal court. Our pals at the Firearms Policy Coalition get wind of the “angel defendant” and get to work. After many years, appeals, and back-and-forth, the Supreme Court hears the case, determines that at least the SBR/SBS clause of the NFA (sometimes SCOTUS decisions are microscopically narrow) violates the text, history and tradition test of Bruen, and the SBR clause is stricken. There’s simply no historical precedent to tax and restrict a weapon based on mere barrel length. Done and done.

OK, now rinse and repeat for machine guns, silencers, and destructive devices. Weapons resembling machine guns in concept were around in the early years of our nation, unrestricted. Restricting an accessory would have been a foreign concept to George Washington. And private citizens owned fully-armed sailing warships, the battleships of their day, without government approval or consent. Easy in concept, slow in execution. Each case knocking at the NFA would require a similar “saint” of a defendant.

Time to repeal: 20 years, if you start tomorrow and if you’re lucky and have lots of money and/or rich benefactors. Lawyers cost money. Also factor in changes in the Courts, and so on.

The Slow And Harder Route - Congress And The White House

By nature, the Court process requires victims. In a very real sense, there could be a body count to get the NFA repealed via Court decisions. A plaintiff could be the estate of a moral person killed during an NFA enforcement action. A defendant could die in prison while a case proceeds, that sort of thing. Grim, but it’s a sad means to an end.

However, passing a law to repeal a law could be done rather bloodlessly. Of course, a motivation could be government using the NFA as a spurious tool to abuse ideological opponents, but the actual legislative procedure itself is rather non-violent in a practical sense.

Now, a sweeping repeal of the NFA all in one swoop isn’t to be recommended. No currently-serving legislator wants to be the guy or girl who voted to lift the restrictions on machine guns, for example. So, much like gun control supporters, we’ll start small and work our way up the latter. Vagaries of course include partisanship and Presidential winners. Congress with a Democratic majority won’t even hear an incremental NFA repeal bill, much less put one to a vote. Even a GOP majority would have a tough time due to lukewarm legislators like Cornyn, etc. Anyways…

The First Part To Go - The NFA Tax.

On it’s website, the ATF plainly admits the NFA tax was designed to dissuade people from buying firearms. In 1934, $200 was a princely sum, equivalent to just over $4700 as of July 2024. The tax itself in the grand scheme of things was insane, especially considering the NFA was originally supposed to cover almost every firearm in the United States at that point. Considering a rifle cost maybe $15.00, and even the Thompson submachine gun cost $200. So, at the low end, the NFA tax was a 100% tax on a weapon, and in theory at the high end, the tax was 1000% or more.

Notably, the tax was partially motivated by corporations fearful of armed worker uprisings. While a Thompson did in fact cost $200, this amount was no big deal to a large corporation of the day. They could purchase Thompsons, arm their security departments, and pay the tax without a sweat. Since the tax was to apply to all guns, the hope was that individual citizens would merely cease to use their firearms, turn them in, or not acquire them to begin with. Of course, the amended NFA ended up leaving the bulk of citizen-owned guns alone, but the tax did stay.

Repealing the tax should ironically be easy, and has been proposed as a first step towards reforming and repealing the NFA, most recently by Senator Tom Cotton. Now, of course the government is loath to walk away from a tax, but the simple reality is that the NFA tax collected yearly is a drop in the bucket compared to the federal budget as a whole. Estimates per year range to around $68 million. The ATF doesn’t see a dime of this, by the way - ironically they aren’t too concerned with it. What happens is the tax is collected by the IRS, which is the only agency authorized to collect taxes at the federal level in the US. You’d see evidence of this when you paid your NFA fee using a check or money order back in the day. You’d gather all your paperwork, fill out the Forms, cut a check or money order, and send it to a mailstop run by the IRS, usually in Atlanta or Portland. They’d cash it, and send the Forms themselves to the ATF for approval. Nowadays, you pay via credit card but the processor is still run by the IRS.

Anyways, the IRS could surely figure out a way to squeeze $68 million out of some other aspect of life, so the NFA tax should be an easy first step to repeal. $200 on a $1000 suppressor isn’t anything to sneeze at, but if you’re ready to drop that sort of money on a fancy muffler, the tax itself isn’t a huge life. Even more so for a transferable NFA machine gun - $200 on a $40,000 firearm is nothing. So the “deterrence” factor of the tax is moot. No one looking to do the NFA dance is dissuaded by the tax on a practical level.

The Second Part To Go - SBRs and SBSs

The received wisdom is that the SBR & SBS classifications within the NFA are to discourage people from making and acquiring short-barreled rifles and shotguns, which could supposedly be easily concealed during the commission of a crime. However, the truth of the classification is a little more complex than that.

Remember that the original draft of the National Firearms Act was to tax and register nearly every firearm present in the United States at the time. Pistols, machine guns, and most other guns were to be covered by the Act. The only exemptions were certain types of rifles and shotguns. Legislators, seeking to prohibit people from converting these rifles into makeshift “pistols” (but still legally being those exempt rifles), placed barrel length restrictions into the NFA. Now, the amended NFA dropped pistols from the bill, but the SBR/SBS classification remained, it’s original purpose deleted from the bill. However, it was felt that keeping it as a general deterrence to purchase was acceptable, so therein it remained. The government literally couldn’t be bothered to fabricate a “public safety” lie to justify the SBR/SBS provisions of the NFA.

Now, an explicitly recognized tenet of the Second Amendment is that it protects firearms in common use, regardless of the user. One of the most common weapons in common use in the United States is the M4A1 rifle in use by the US Army. Produced by the millions by FN and Colt, the M4A1 is definitely “common”. It’s a select-fire AR-pattern rifle with a 14.5-inch barrel. The select-fire bit we’ll get to later, but the important part here is that an effective defensive weapon sports a 14.5-inch barrel, which falls under the 16-inch limit imposed on rifles by the National Firearms Act.

Some may argue that criminals will cut down or equip their rifles with shorter barrels if this provision of the NFA goes away. I’d hate to tell you all, but a criminal isn’t going to cut down the barrel of an AR-15. It’s too much work for them, and even in their limited brains, they realize they could induce a malfunction by taking a hacksaw to a gun barrel. Now, if they plan on cutting it down anyways, they aren’t bothered by the NFA - they’re already planning on assault and property damage, an NFA charge that would most likely be dropped isn’t going to bother them.

Thusly, the “public safety” argument falls apart. Compact rifles make great defensive weapons, and are entirely consistent with the recognized parameters of the Second Amendment. Also, the SBR/SBS classification fails the Bruen test immensely - there were no special taxes for short-barreled weapons literally until the NFA came along.

With a 2A-friendly GOP majority in Congress and a President that would be willing to play along, this one is a slam dunk with careful planning and execution.

The Third Part To Go - Silencers

Theoretically, silencers should have been the easiest to drop from the National Firearms Act. They’re literally accessories, despite the fact that legally they are considered firearms. Hiram Percy Maxim invented silencers for firearms and silencers (mufflers) for automobiles. Ironically, you could receive a $200+ ticket for not having a silencer on your car, but you could receive a $250,000 “ticket” and a trip to Club Fed for a decade if you put a silencer on your gun and don’t ask the Feds for permission first.

Note: the general industry parlance is in fact to call them “suppressors”, but in the body of law, they are called “silencers”, despite not truly silencing a gunshot. Just putting that out there.

Anyway, silencers kind of have a cultural stigma. Long thought of as the tool of sneaky assassins as a result of wild propaganda and Hollywood, the general public thinks all you have to do is put a funny tube on the front of a .50 BMG rifle, and the concussive boom becomes mouse-fart quiet. It’s hardly the truth, but most people outside of the firearms scene don’t bother to research things, so we’re stuck with the stigma, in a way.

Thankfully, the industry is responding with organizations like the American Suppressor Association, aka the ASA, hosting range days, PR events, and the like to show how silencers really work. They muffle the muzzle blast down to a less hellish level, but they don’t completely silence it. Furthermore, the bullet will still most likely break the sound barrier, causing a sonic “crack” downrange that is unmistakably a gunshot sound.

Anyway, cultural barriers aside, getting silencers off the NFA should not be a huge lift for a 2A-friendly Congress and executive branch. In various forms, bills have already been proposed, with the 2017 Hearing Protection Act nearly making it to the floor for a real vote, until the tragic Las Vegas shooting incident in October of that year prompted Congress to sideline all pro-2A bills for the session. Some argue that the Vegas attack was quite convenient, but we’ll leave the speculation for another blog, ha ha.

That being said, in this case it’s also possible to gin up support from the progressive side of the fence since even in strict gun control regimes, silencers are often only as regulated as the guns they are attached to, and in the case of nations like New Zealand, silencers can literally be purchased with no more effort than it takes to purchase a rifle sling. Though to be honest the current crop of Democrats in Congress will vote as a bloc against anything gun-friendly so we can probably forget about anyone jumping the fence.

Nonetheless, as an accessory, silencers have no place being treated as a firearm, much less being on the NFA.

The Massive Lift - Machine Guns

The true text, history, and tradition of firearms laws in our nation have never addressed operating mechanisms and actions until recently. Machine guns were severely restricted by the National Firearms Act, and a slow-burn outright ban on civilian ownership was enabled by the 1986 Hughes Amendment, which banned the sale of new machine guns to individual purchasers after May 19th 1986. Hughes was snuck into the otherwise gun-friendly Firearms Owners Protection Act (FOPA). The idea of Hughes was to be a ‘poison pill’ to FOPA and get it destroyed, since the Democrats figured the GOP wouldn’t push a 2A-friendly bill with an anti-2A component built into it.

However, the GOP claimed they would merely have the courts strike down Hughes, since it was a slow-burn ban on civilian machine gun ownership. Guns are durable items, but eventually they break down and require repair or replacement. And since Hughes banned the ownership of newer machine guns for civilians, it basically meant that the pool of around 190,000 NFA-transferable machine guns would eventually dwindle to zero through attrition, damage, and loss. But, here we are nearly 40 years later, and exactly zero court action has been taken on Hughes. The GOP didn’t move an inch, the NRA didn’t say much beyond acknowledging the issue, and Reagan proved to be a turncoat on 2A in the long run.

However, if suitably motivated lawmakers were able to strike down the other major provisions of the National Firearms Act, it can be argued that striking the machine gun provision shouldn’t be a massive task after all. Much like silencers though, machine guns are really misunderstood.

In the purest sense, the Second Amendment should protect and guarantee the right to keep and bear machine guns without government meddling. The 2A is supposed to protect our ability to have firepower equality with regards to the government. The government routinely equips it’s armed employees with machine guns, therefore we really have an explicit use case to argue with. They have them, thus we should have them.

Sound legal theory to be sure, but it’s going to be hard to convince a credulous public, drunk on a diet of action films, that machine guns are really not that unusual and more lethal than semi-automatic weapons.

But, since the devil is in the details, let’s take a machine gun in common use - the M4A1. Developed as a variant of the M16, which is the original AR-pattern .223/5.56mm automatic rifle, the M4A1 usually ships with a 14.5-inch barrel in addition to the select-fire (safe-semi-auto or burst) functionality. Since no M4A1 was made before May 19th, 1986, these rifles simply cannot be possessed by individuals in the United States. Now, you could take the lower from a pre-86 M16, and fit M4A1-spec upper and lower components to it and basically have an M4A1, but it wouldn’t be the M4A1 that the military gets by the millions for about $900 a pop.

Anyway, an M4A1 is in a broad sense a mid-priced AR-15 by FN with select-fire capability. It’s actually no more “dangerous” or unusual than a “military collectors edition” semi-auto M4A1 that rolls off the assembly lines at FN America. The only practical difference is that you can flip the fun switch, press and hold the trigger down until your magazine runs dry.

Now, your average non-gun “normie” thinks that you can spray a room with 30 rounds of 5.56 in full auto and neutralize 30 people in less than 10 seconds. Not quite. While a somewhat-skilled user can mag dump fairly accurately, there’s simply no real way that each round would find an individual mark in that fashion. In a mag-dump situation, you’ll run dry amazingly fast.

The user would maybe be able to decisively neutralize 3 or 4 people or injure a few more before his mag ran dry in less than 10 seconds. In standard military practice, full-auto is actually taught to be used as a suppressive-fire function, i.e. “burst that way and pin the guy down, and let someone else take him using aimed fire” or as an emergency response function. Full-auto isn’t taught as a “kill ‘em all” tactic.

Ironically the M4A1’s predecessor, the M4, actually had a three-round burst mode as opposed to full-auto. Instructors in the citizen world teach that you should put multiple rounds into a threat to neutralize him and stop the fight. A three-round burst function on a self-defense rifle would be an excellent feature for this (bang-bang-bang), but even this qualifies a rifle as a “machine gun” legally, so it’s no go.

That could actually be an interim step in terms of striking down the machine gun restriction on the NFA - burst function rifles become non-NFA, and full-auto remains NFA, for a little bit.

Anyway, just by the virtue of machine guns eating up ammo, they really are no more lethal than a similar firearm that is restricted to semi-auto only.

Also, as we’ve noted, a machine gun would be absolutely consistent with the original intent of the Second Amendment. The Second Amendment ensures our right to keep and bear arms against all enemies, foreign and domestic. At the time of the founding, we had no standing military, as forces would be assembled from local militias and volunteers, who would bring their own weapons for the most part. These weapons were expected to be in a well-regulated condition (working order!) and equal or greater in function than any potential threats. Now, if the threat has a machine gun, you should be able to easily access one as well.

An Even More Massive Lift - Destructive Devices

As we’ve stated, the Second Amendment basically guarantees parity of force with all enemies, foreign and domestic. By the letter, it means we have every right to machine guns, armed capital warships, armed fighter jets, and yes, nuclear weapons. Ironically the latter don’t exactly have background checks - seems if you know how to build them and can acquire the raw materials, you can have them, and there’s not much anyone can do about it. The only check on recreational nukes is cost, time, and deterrence - the existing nuclear powers tend to get weird if a new guy figures out the magic. But the new guy gets weird right back and no one nukes anyone else.

Anyways, destructive devices are guns over .50 caliber save for shotguns and some big-bore hunting rifles, bombs, rockets, grenades, missiles, grenades, and the like. It’s an expensive sector to play in, to be fair. For example, you can actually lawfully possess a hand grenade, but you have to register the grenade on a Form 1 (if you make it) or a Form 4 (if you buy it) and pay the NFA tax on top of the grenade cost. Lawful grenade ownership by individuals is literally a flex. You aren’t going to use it, since you just coughed up quite a bit to legally get it.

In the end though, the lift here is to convince lawmakers and the people who voted them in that rolling back the destructive device category of the NFA is consistent with the Second Amendment.

A Incremental Step For All NFA Items Worth Mentioning

The government likes to maintain the fiction that the NFA and all gun control is about “public safety”, despite the fact that the government doesn’t have a real motivation to ensure public safety beyond keeping enough tax cattle around. So, let’s humor them a little. With all the NFA items listed above, de-listing them from the NFA would incrementally pass them into the realm of “normal” firearms for a bit. Instead of the grueling NFA process, the NFA items in question would just be only transferred upon the completion of a successful NICS inquiry. Here’s the dirty secret - that’s actually what happens with an NFA item anyway. The tax is paid, the paperwork is examined, and a NICS inquiry is performed along the way. There’s other steps in there, but for the sake of brevity, that’s literally what happens. The delay is deliberate to discourage purchase. Legislators looking to push for a repeal would be well-advised to amplify the “integrity” of the public safety aspect when calling for the rollback. Call it “efficiency” or whatever.

Of course, down the line, NICS would and should be dismantled, but that’s for another long-form piece.

General Barriers And Timelines To A Legislative Repeal Of the NFA

The biggest barrier to NFA repeal, of course, is the government. Even if a legislator believes in the repeal, he or she will not want to be the one to risk their career over the more heavier lifts in the process, especially machine guns and destructive devices. Even after the incremental repeal of restrictions on mundane items like silencers and SBRs, there will still be forces arrayed against rolling back on the true crown jewels of the NFA. Legislators treat being elected as a grand job opportunity for the most part, and if not startling the normies means they get another term in office, they’ll slow their roll somewhat.

Another barrier is we the people. Well, not me, and maybe not you since you’re reading this blog, but people in general. People in general think silencers are assassins’ tools and that an M4A1 can enable someone to slaughter an entire building full of people in one go. The media promotes these lines of thought, and has zero impetus to correct these misconceptions. Fighting back on the cultural front will be difficult.

Timeline for all this? I dare say many decades, maybe even a century. Ironically technology could be on our side, since homemade weapons of unimaginable power will be a reality, perhaps rendering the entire idea of weapons control pointless.

Dismantling The NFA Is Essential To Retain The Right To Keep And Bear Arms

To be fair, all this would require a sea change in attitudes towards personal armaments and self-reliance, a change which will take a lot of time. While the battle is fought in the courts or in the halls of power, or both, it’s up to us Second Amendment Radicals to promote the culture as a positive thing.

Good luck!

Support This Site

Operating Regular Guy Guns and bringing you quality content costs money, money that I am more than happy to spend, even after all these years! I get the occasional sponsor, but bills still have to be paid, ha ha.

FYI: I’m considering reviving the podcast. I may have a method to speed up production somewhat.

You’ll see the articles peppered with affiliate links. I get a few pennies when you make your purchases via my links.