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B|K Wins Machine Gun Case in US Supreme Court

Mon 27th Apr 2020, Blog

After five years of contested litigation the Supreme Court granted our petition, vacated our client’s conviction, and remanded to the Ninth Circuit.

At issue was the constitutionality of the National Firearms Act (“NFA”), a 1934 law that strongly discouraged, but did not outright ban, machine guns and other particularly dangerous weapons.  At the time the law was passed Congress believed, based on the advice of the U.S. Attorney General, that the federal government had no power to regulate firearms.  That power (thought of as the “police power”) was reserved to the states.  So rather than banning machine guns Congress relied on its power to tax.  The 1934 tax due for possession of a machine gun was $200.  That’s nearly $4,000 in today’s dollars.

So much for that idea.  Congress has since relied on its Commerce Clause authority to regulate firearms, home-grown marijuana, and just about anything else.  In 1986 Congress banned the possession of all machine guns.  But Congress left the NFA’s prohibition on unregistered machine gun possession on the books.  Even though the United States Attorney’s Manual instructs prosecutors to charge machine gun possession under the new law, the government continued to charge some people (including our client) with possessing unregistered machine guns under the NFA.  

Here’s the problem.  Ever since 1986 the government refuses to register previously unregistered machine guns (or collect the tax, which is still only $200).  Because the government refuses to collect tax payments for those machine guns, the NFA no longer generates revenue by regulating them.  And a tax law loses its constitutional justification when it no longer raises revenue.   

If that argument sounds familiar it’s because it’s precisely the same one that a coalition of states is making in a challenge to the Affordable Care Act.  And the executive branch agrees with them. 

The government appears to agree with B|K too.  While this case was pending in the Supreme Court, the US Attorney’s office abruptly moved to dismiss it.  

Big win for B|K Partner John Littrell.  Not so much a gun nut, more of a constitution nut.