I’m also thinking that 18 USC 922(o) the “Hughes Amendment” is very likely to get axed in the near future, but as to the NFA? Well, this year we’ve seen things happen no one had any idea would happen, so…………

Why I Do Not Expect the Court to Strike Down the National Firearms Act Soon

There are a lot of gun rights activists who seem to have high hopes that the Court will overturn the National Firearms Act because of the Bruen decision.

I think not and this is why. The Court has seldom engaged in overturn of an existing collection of ideas overly quickly. Brown v. Board of Education (1954) might have seemed sudden to segregationists but it was the last brick in a wall going back a couple decades.

There were decisions starting in the 1930s ruling against racial segregation of public law schools. Some of these laws were really amazingly tax-foolish. Texas built an entire law school for five black law students rather than put them in the same classrooms as white students. South Carolina, if my memory serves me correctly, hired tutors to teach two black law students instead of building a separate law school or integrating the existing one. What can I say: Democrats are always willing to waste money for racist reasons.

These previous decisions lead up to the not entirely shocking decision to prohibit de jure segregation K-12.

Going the other way, Roe v. Wade (1973) did not just spring out of the ground. Griswold v. Connecticut (1965) recognized a previously invisible right to privacy for married couples seeking contraception. Married couples had a plausible claim to some sort of privacy because English law had always considered a married couple to be one person (almost always to the detriment of the wife’s interests). Later decisions extended this privacy right to contraception to unmarried couples where no English legal tradition had ever existed.

The Court seldom jumps too far ahead of popular sentiment and when they do, the results often backfire. The recent overturn of Roe v. Wade and the Bruen decision both reflect a fairly pronounced change in public sentiment about abortion and guns. The Court’s GVR orders (Grant writ of certiorari, Vacate an appellate court decision, and Remand to the original trial court for rehearing consistent with the Bruen decision) clearly intend to strike down not only good cause concealed carry laws but also state assault weapon and magazine limits.

Americans are not prepared for ready access to automatic weapons. They may be ready for suppressors to be less restricted, especially because the Bruen decision’s gutting of the two step scrutiny process leaves the government in the difficult position of defending the public safety benefit of suppressor licensing. The original NFA hearings seem to have included suppressors with almost no explanation except related to unlawful hunting, which is hardly a public safety matter.

I do think the Hughes Amendment (1986) ban on new machine gun manufacturing for civilians is a first step that they might take, especially because U.S. v. Rock Island Armory did such an effective job of demonstrating that NFA regulation of machine guns was dependent on them being in commerce. They could be taxed only as a consequence of interstate commerce.