Gram Gross has posted The National Firearms Act of 1934: A Constitutional Critique on SSRN. Here is the abstract:
This paper examines the National Firearms Act of 1934 (NFA) using doctrinal analysis under the Supreme Court’s decisions in District of Columbia v. Heller (2008), McDonald v. City of Chicago (2010), and New York State Rifle and Pistol Association v. Bruen (2022), supplemented by a normative natural-rights argument drawn from the philosophical tradition underlying the Second Amendment. The paper advances both facial and as-applied challenges, arguing that the NFA’s tax-and-registration scheme functionally prohibits arms protected by the Second Amendment and lacks any analog in the historical tradition of firearm regulation at the Founding, as Bruen requires. The paper further argues that the NFA’s $200 tax operated as a financial barrier to a constitutional right in a manner structurally analogous in relevant respects to the poll taxes addressed in Harper v. Virginia (1966), and that the NFA’s legislative history reflects a political context that, according to some scholars, was shaped in part by racial and nativist fears. Primary-source testimony from the 1934 congressional hearings, including Attorney General Homer S. Cummings’ direct acknowledgment that a prohibition would be unconstitutional and that the tax was chosen as an alternative mechanism, provides documentary evidence that the law was not a good-faith exercise of the taxing power. The paper addresses major defenses of the NFA, including Sonzinsky v. United States (1937), Heller‘s regulatory carve-outs, and the public safety justification, and concludes that none of those defenses satisfy the standard Bruen established. The paper recommends both judicial invalidation under Bruen and legislative repeal, with a brief discussion of standing and justiciability considerations.
Lawrence Solum