New Hampshire attorney E.F. Nappen writes that the Firearms Freedom Acts being introduced and enacted in various states are subject to ” The Achilles Heels of the Firearms Freedom Act.”

He argues that the inclusion of NFA (National Firearms Act) items (e.g., suppressors or short-barreled rifles) in the asserted exemption from federal authority will cause the Acts to fail in court because the NFA regulates under federal tax power, not federal commerce clause power.

Of course Nappen is correct to assert that getting the permission of federal judges in approval of the Acts will be a difficult exercise. The federal government (including its judicial branch) doesn’t surrender power readily.

As the author of the original Montana Firearms Freedom Act (MFFA) that is being cloned around the Nation, I’ve long known that litigating the MFFA would be a chancy proposition. But, I believe, there is more to hope for than Nappen credits.

Addressing Nappen’s concern about NFA items, it is true that the NFA purports to be founded in the power given to Congress in the Constitution to tax. However, there are two sorts of taxes: 1) Those enacted and implemented primarily to raise revenue, and 2) those enacted and implemented to affect commerce.

The federal excise tax on firearms and ammunition is clearly the former sort, since it raises millions of dollars the feds dole out to the states for wildlife management. The various firearms freedoms acts do not challenge or affect this genuine revenue raising. It is expected that if litigation under the MFFA is successful, it will still leave the excise tax on state-made and state-retained firearms and ammunition in place, and makers will likely remain liable for this tax.

The taxes levied under the NFA, however, are of the second sort, intended primarily to affect (restrict) commerce in these items. The NFA probably brings in less revenue than the cost of enforcement, so it’s probably a net loss to the federal government.

Therefore, although it may claim to be done under Congress’s tax power, that claim will fail and the fall-back position of the federal government will be Congress’s authority to regulate commerce “among the states.”

Thus, NFA-asserted tax power would actually fall exactly under the commerce clause power challenge that is the core of the MFFA and its clones around the U.S.

Also, it’s helpful to keep in mind that the MFFA and its clones are really a states’ rights exercise, a challenge to federal commerce clause power on Tenth Amendment and other grounds. It is more about federal power than firearms. States’ rights are the subject; firearms are the object.

The Montana Shooting Sports Association has filed its promised legal challenge over the MFFA in federal court. The most powerful card we have to play is “emerging consensus,” judicial jargon for “There are mobs of peasants at the palace gates bearing pitchforks and torches and we’d better pay attention to what they want.”

That two states have enacted Firearms Freedom Acts, eight states have introduced them, and 20 other states are poised to introduce their own is an “emerging consensus” that the federal judiciary probably won’t actively acknowledge, but that those in the black robes will be aware of and pay attention to.

Does this mean that litigating the MFFA will be a slam-dunk? Absolutely not! Nappen is correct that the barriers are high and well-established. Still, it’s high time for this challenge to be mounted. Nappen would serve us all better by charging his legal musket than by being so ready to concede the field to the other side.

From Nappen’s Website: “Aggressive fighting for the right is the noblest sport the world affords.”
–Theodore Roosevelt

Gary Marbut [send him email] is President of the Montana Shooting Sports Association and author of the Montana Firearms Freedom Act, which became state law on October 1, 2009

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