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11 Aug 2025, 2:42 am
[The $0 tax on firearms undercuts the constitutional basis of the National Firearms Act.] The National Firearms Act, chapter 53 of the Internal Revenue Code, finds its basis in U.S. Const. Art. I, § 8, under which "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises…." It imposes special occupational taxes for businesses and making and transfer taxes on individual firearm transactions. It is unlawful for a person "to receive or… [read post]
12 Jun 2025, 6:51 pm
[The NFA is a revenue measure and deleting silencers would not violate the Byrd Rule.] As passed by the House, the FY25 reconciliation bill, H.R. 1, § 112029, would amend the National Firearms Act (NFA), by striking "any silencer" from the definition of "firearm." It also provides that "there shall be levied, collected, and paid on firearms" transferred or made a tax of certain amounts on various firearms, including "$0 for each firearm … in the case of… [read post]
31 Mar 2025, 8:01 pm
[Narrow decision leaves ATF regulation in limbo.] On March 26, the Supreme Court decided Bondi v. VanDerStok, holding that ATF's 2022 regulatory expansion of the definitions of "firearm" and "frame or receiver" is not facially void. The Court read the proceeding as a facial challenge only and offered no opinion on whether the regulation would be valid as applied to specific items. As long as the definitions may be validly applied to at least something, Justice… [read post]
1 Nov 2023, 3:07 pm
[Bruen directs the proper approach to historical analogue laws in Rahimi.] In a previous post, I wrote about the attempt by Merrick Garland's Justice Department in United States v. Rahimi, set to be argued before the Supreme Court on November 7, to sidestep the controlling "text and history" interpretative methodology described in District of Columbia v. Heller and in New York State Rifle & Pistol Ass'n v. Bruen. Rahimi is the case challenging the facial constitutionality of… [read post]
3 Apr 2024, 7:01 pm
[“Large-capacity” magazines and semiautomatic rifles are “bearable arms” in common use, no different from the handguns in Heller, but will two en banc courts agree?] Once it decided N.Y. State Rifle & Pistol Ass'n v. Bruen (2022), the Supreme Court acted on several Second Amendment cases it had been holding, granting petitions for writs of certiorari, vacating the judgments, and remanding the cases for reconsideration in light of Bruen. One was a challenge to… [read post]
1 May 2023, 8:55 pm
On April 28, Judge Stephen P. McGlynn of the Southern District of Illinois, in Barnett v. [read post]
25 Jan 2026, 7:17 pm
[Comments by Akhil and Vikram Amar in Scotusblog.com are off base.] In a recent article in Scotusblog.com, Akhil and Vikram Amar attempt to answer four concerns raised in the Justices' questioning in oral argument in Wolford v. Lopez. However, at each turn in their defense of the Hawaii law, their answers fall flat. First, the Amars address the concern that Hawaii treats the Second Amendment as a second-class right. The Justices probed Neal Katyal's position, questioning whether the… [read post]
16 Oct 2024, 9:51 am
Stephen P. Halbrook, Yang Liu, Matthew Larosiere, and Charles K. Eldred. [read post]
15 Dec 2022, 5:01 am
[Courts, not “experts,” should say what the law is.] Imagine a world in which judges appoint the nation's most prestigious historians as experts to advise the court on matters of constitutional history. How about appointing the author of a book that the Journal of American History endorsed as "meticulous and thorough," that Garry Wills enthusiastically reviewed for the New York Times, and that received the prestigious Bancroft Prize? Turns out that Michael A. Bellesiles,… [read post]
9 Jan 2025, 5:10 pm
Four Second Amendment petitions were distributed for the Court's conference on Friday January 10. I just posted on the merits of these cases. A dramatic development has just occurred showing the dire need for the Court to clarify its jurisprudence in this area. The best case to do so is Snope v. Brown, which concerns whether Maryland may ban semiautomatic rifles that are in common use for lawful purposes. Here's the urgency. Yet another state, Colorado, is about to… [read post]
3 Oct 2024, 6:58 pm
The Supreme Court will hear oral arguments next week, on October 8, in Garland v. VanDerStok, the challenge to the radical expansion of the regulatory definition of "firearm" in the Gun Control Act (GCA). Neither Congress nor the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) ever touched that statutory definition passed by Congress in 1968. And both left the non-controversial regulatory definition of "firearm frame or receiver" undisturbed since 1968. But… [read post]
27 Nov 2023, 6:00 pm
[Misdemeanants don’t fall within the “not law-abiding” category.] In the November 7 oral argument in U.S. v. Rahimi, the government conceded the fundamental difference between felonies and misdemeanors, which criminal defense and pro-gun attorneys will find useful. Also, direct references were made by some Justices to the issue of non-violent felons who are not dangerous. And on the separate state-law issue of whether administrative officials may have discretion to… [read post]
14 Jan 2026, 6:16 pm
[Time period to assess Second Amendment rights may arise in Wolford argument.] As the Supreme Court prepares for oral argument on Tuesday next week in Wolford v. Lopez, it should consider resolving the relevant time period for interpreting the scope of the Second Amendment. The issue arises in contexts as diverse as the federal prohibitions on certain classes of people (see post here) and whether adults aged 18 to 20 have Second Amendment rights (see post here). It is pertinent to the… [read post]
29 Apr 2025, 6:49 pm
[Wyoming Law Review publishes special issue on the NFA.] The Wyoming Law Review's Special Edition on the National Firearms Act is now available. Last fall, the Firearms Research Center at the University of Wyoming College of Law hosted a symposium on historical, statutory, and constitutional issues involving the NFA. The papers stemmed from that conference. Here's the abstract from my contribution, The Power to Tax, The Second Amendment, and the Search for Which "Gangster… [read post]
24 Mar 2025, 7:21 pm
[ATF is prohibited by appropriations riders from considering petitions.] The Gun Control Act (GCA) prohibits persons with certain legal disabilities from possession of firearms. It also provides a procedure to petition to remove those disabilities on a finding that the person will not be likely to act in a manner dangerous to public safety. Since 1992, appropriations riders have been enacted to prohibit the Bureau of Alcohol, Tobacco, Firearms and Explosives from considering such… [read post]
15 Jan 2025, 6:29 pm
The Supreme Court has relisted two Second Amendment cases for its conference on Friday January 17. They include Snope v. Brown, which concerns whether Maryland may ban semiautomatic rifles that are in common use for lawful purposes, and Ocean State Tactical v. Rhode Island, which asks whether a confiscatory ban on the possession of magazines that are in common use violates the Second Amendment. Last Friday, when it relisted these cases, the Court denied certiorari in two other Second… [read post]
18 Nov 2024, 6:29 pm
The Seventh Circuit heard oral argument on November 12 in Viramontes v. County of Cook, Illinois, a challenge to Cook County's ban on semiautomatic rifles like the AR-15, inaccurately labeled as assault weapons. These bans are flatly unconstitutional under Heller, which establishes that the law-abiding citizens of this Nation have a right to possess firearms that are in common use. Semiautomatic rifles undoubtedly are in common use – indeed, the AR-15 has been the best-selling rifle in… [read post]
9 Oct 2023, 6:55 pm
[A strong case is made against the ban on gun possession by persons subject to a DVRO.] A fusillade of amicus briefs has now been filed in support of affirmance of the Fifth Circuit's decision invalidating the federal ban on possession of a firearm while under a domestic violence restraining order (DVRO). While no one countenances the alleged behavior of respondent Zackey Rahimi, the various amici persuasively argue that the federal law – 18 U.S.C. § 922(g)(8) – facially… [read post]
21 Nov 2025, 7:04 pm
[Improper analogue to support ban on arms on private property open to the public.] I have filed an amicus curiae brief in Wolford v. Lopez, which is pending in the Supreme Court, on behalf of the National African American Gun Association. As explained in my previous post, the issue is whether the Ninth Circuit erred in holding that Hawaii may prohibit the carrying of handguns by permit holders on private property open to the public unless the property owner affirmatively gives express… [read post]
29 May 2023, 6:20 pm
[The Administration is hoping that bad facts will make bad law.] Federal law prohibits nine categories of persons from receipt and possession of a firearm. As the Supreme Court continues to develop its Second Amendment jurisprudence, which ones of those types are most significant in regard to representativeness and numerosity? Felons in possession of firearms have been the leading type of prosecution under the federal Gun Control Act since its enactment in 1968. There were 7,454 such… [read post]
