{"id":111307,"date":"2025-07-22T18:14:38","date_gmt":"2025-07-22T23:14:38","guid":{"rendered":"https:\/\/milesfortis.com\/?p=111307"},"modified":"2025-07-22T18:14:38","modified_gmt":"2025-07-22T23:14:38","slug":"111307","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=111307","title":{"rendered":""},"content":{"rendered":"

Special Taxes on Firearms are Unconstitutional. <\/span><\/a><\/p>\n

1. The Tax Law That Now Finds Itself Without a Tax<\/p>\n

In the recent discourse around the potential removal of suppressors and short barrel rifles from the provisions of the National Firearms Act (NFA) and its tax and registration requirements, a point made repeatedly was that if the tax was repealed but the registration stayed, the latter would be illegal as it was only ever justified by the former.<\/p>\n

This is indeed correct, as from its inception, the NFA was justified as a tax, with the registration being incidental to that tax and only existing ostensibly to ensure the tax was properly paid for each NFA item sold. Then-Attorney General Cummings was clear about this in his testimony to Congress during the debates over the bill in 1934:<\/p>\n

Courts have consistently upheld the NFA, and its registration provision, on the grounds that it was a tax. Some who tried to challenge the law even argued that the tax was a pretext, with the real aim being to unconstitutionally restrict the arms included in the NFA. The Supreme Court rejected this argument in 1937, just a few years after the NFA was first enacted in Sonzinsky v. United States, 300 U.S. 506, 512-514 (1937):<\/p>\n

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\u201cPetitioner. . .insists that the present levy is not a true tax, but a penalty imposed for the purpose of suppressing traffic in a certain noxious type of firearms, the local regulation of which is reserved to the states because not granted to the national government. . . But a tax is not any the less a tax because it has a regulatory effect. . . Here the annual tax of $200 is productive of some revenue. We are not free to speculate as to the motives which moved Congress to impose it, or as to the extent to which it may operate to restrict the activities taxed. As it is not attended by an offensive regulation, and since it operates as a tax, it is within the national taxing power.\u201d<\/div>\n<\/blockquote>\n
Ever since then, dozens of rulings have upheld the NFA on those same grounds. For example, in 2018 the Tenth Circuit Court of Appeals explained that \u201cthe NFA is a valid exercise of Congress’s taxing power, as well as its authority to enact any laws \u201cnecessary and proper\u201d to carry out that power.\u201d United States v. Cox, 906 F.3d 1170, 1179 (10th Cir. 2018).<\/div>\n
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Unfortunately, the Senate Parliamentarian either didn\u2019t grasp this or didn\u2019t care, and\u00a0struck \u00a0<\/a>the repeal of the registration requirement from the \u201cBig Beautiful Bill,\u201d deeming it unrelated to the budget and thus inappropriate for reconciliation. Thus, only the tax was repealed, and so a registration provision that has been justified for over 90 years as necessary only to ensure a tax was paid now finds itself seemingly vulnerable to legal challenge.<\/p>\n

The first lawsuit filed against the NFA\u2019s registration requirement unsurprisingly focused on this argument\u00a0\u00a0<\/a>\u201cThe One Big Beautiful Bill Act, which Congress and the President enacted on July 4, 2025, zeroes the manufacture and transfer tax on nearly all NFA-regulated firearms. That means the constitutional foundation on which the NFA rested has dissolved.\u201d<\/p>\n<\/div>\n<\/div>\n

The Plaintiffs in that lawsuit are right to try and exploit this open wound, given courts will no longer be able to lazily uphold the NFA\u2019s provisions on the ground that it is a tax (because there is no longer any tax, at least as to suppressors and short barrel rifles).<\/p>\n

But one thing has been strangely missing from this whole discourse: the NFA never had any constitutional foundation, even when it was a tax. Taxes on arms, besides universally applicable sales taxes, are unconstitutional. The NFA should never have been upheld on taxation grounds in the first place, and other taxes such as the 11% assessed under Pittman-Robertson, or California’s similar “sin tax” on guns and ammo, are also unconstitutional.<\/p>\n

In 2022, the Supreme Court unequivocally reaffirmed the original public meaning standard for analyzing Second Amendment challenges set forth in District of Columbia v. Heller, 554 U.S. 570 (2008). Applying that test, the Supreme Court found that the Second Amendment protects the right to armed self-defense in public. N.Y. State Rifle & Pistol Ass\u2019n v. Bruen, 597 U.S. 1, 19, 31-33 (2022). The Bruen Court reiterated that courts may not engage in any form of \u201cintermediate scrutiny\u201d or even \u201cstrict scrutiny\u201d in Second Amendment cases and unambiguously instructed how a proper Second Amendment analysis is to be conducted by a reviewing court:<\/p>\n

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\u201cWe reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment\u2019s plain text covers an individual\u2019s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation\u2019s historical tradition of firearm regulation. Only then may a court conclude that the individual\u2019s conduct falls outside the Second Amendment\u2019s \u201cunqualified command.\u201d<\/div>\n<\/blockquote>\n
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Moreover, the government cannot simply proffer just any historical law that references firearms. Rather, when challenged laws regulate conduct or circumstances that already existed at the time of the Founding, the absence of widespread historical laws restricting that same conduct or circumstances indicates that the Founders understood the Second Amendment to preclude such regulation. Id. at 27. In contrast, uniquely modern circumstances that did not exist at the time of the Founding call for an analogical analysis, based on the government\u2019s proffered historical record. Id. at 28-29. Outlier statutes do not satisfy the requirement. A law must be a \u201cwell-established and representative historical analogue.\u201d Id. at 30.<\/p>\n

Courts may not uphold a modern law just because a few similar laws may be found from the past. Id. Doing so \u201crisk[s] endorsing outliers that our ancestors would never have accepted.\u201d Id. (quoting Drummond v. Robinson Township, 9 F.4th 217, 226 (3d Cir. 2021)). In fact, in Bruen the Court acknowledged that two pre-1900 state laws were insufficient to uphold New York\u2019s carry restrictions, despite them being similar to the New York laws. See 597 U.S. at 65 (“the Texas statute, and the rationales set forth in English and Duke, are outliers. In fact, only one other State, West Virginia, adopted a similar public-carry statute before 1900.”).
\nFinally, as to Bruen\u2019s observation that \u201cunprecedented societal concerns or dramatic technological changes may require a more nuanced approach\u201d (597 U.S. at 27), this case is \u201cfairly straightforward\u201d because there is nothing new about arms, sales of arms, or taxation. In this sort of circumstance, the Supreme Court made clear that the \u201clack of a distinctly similar historical regulation addressing that problem is relevant evidence that the challenged regulation is inconsistent with the Second Amendment.\u201d Id. (emphasis added).Further support for this position can be found in the Second Amendment Foundation\u2019s recent victory in a challenge to a California law limiting gun purchases to one per month. There, California argued that the limits were about stopping \u201ctrafficking\u201d of arms, and one of the State\u2019s experts stated that during the nineteenth century, \u201cblack markets in stolen goods\u201d were a problem and so \u201cAmericans were concerned about firearms being sold into the wrong hands.\u201d The panel rejected this argument because \u201cthe modern problems that California identifies as justification for its one-gun-a-month law are perhaps different in degree from past problems, but they are not different in kind. Therefore, a nuanced approach is not warranted.\u201d Nguyen v. Bonta, No. 24-2036, 2025 U.S. App. LEXIS 15220, at *18 (9th Cir. June 20, 2025).<\/p>\n

The NFA was justified for similar reasons; slowing the trafficking of arms the government considered dangerous. And just like California\u2019s gun rationing law, its tax can only survive if there are \u201cdistinctly similar\u201d laws like it in the Founding Era. See also United States v. Rahimi, 602 U.S. 680, 737-38 (2024) (Barrett, J., concurring) (\u201cthe history that matters most is the history surrounding the ratification of the text; that backdrop illuminates the meaning of the enacted law. History (or tradition) that long postdates ratification does not serve that function.\u201d).<\/p>\n

3. The History of Taxing Arms pre-1900
\nNow that we know what we are looking for (laws that taxed firearms on a per-gun basis) we can look to see whether any distinctly similar historical laws before 1900 existed in sufficient numerosity to justify modern taxes on firearms, such as the NFA. If any are \u201cdistinctly similar\u201d to the modern NFA\u2019s taxation provision, then that provision can be upheld. If not, it is unconstitutional.<\/p>\n

The earliest examples were not taxes at all, but rather fines for various violations. For example, a\u00a01762 New York colonial law\u00a0<\/a> barred storing more than 28 pounds of gunpowder for those who lived in New York City, and if violated, a fine of Ten Pounds was assessed. To be sure, if someone chose to have more than 28 pounds of gunpowder, they had to store it at a designated \u201cPowder-House,\u201d which required a fee of three shillings per barrel of powder.<\/p>\n

But that was less of a \u201ctax\u201d and more of a fee for using the powder-house, and in any case, would only apply to those who wanted to have more than 28 pounds of gunpowder. Powder-storage laws in general were not motivated by a desire for taxation or even gun control, but rather fire-prevention; black powder was extremely combustible, and thus a giant safety hazard to the densely packed and mostly wooden cities of the time. See District of Columbia v. Heller, 554 U.S. 570, 632 (2008) (characterizing colonial powder storage laws as pertaining to fire-safety and not gun control).<\/p>\n

Other early examples demonstrate the limits of relying on colonial history. A\u00a01759 New Hampshire law\u00a0<\/a>required foreign ships coming into port to pay a tax of two shillings per pound of gun powder, in order to financially support \u201chis Majesty\u2019s fort and fortifications within this province.\u201d<\/p>\n

While superficially similar in that this was a tax on a necessary component to firearms \u2013 gunpowder \u2013 it is not the same as the NFA\u2019s far higher tax on each firearm or suppressor sold, and it only applied to foreign ships. Moreover, with similar laws being sparse or nonexistent, this seems to be an outlier, and \u201cin using pre-ratification history, courts must exercise care to rely only on the history that the Constitution actually incorporated and not on the history that the Constitution left behind.\u201d Rahimi, 602 U.S. at 723 (Kavanaugh, J., concurring).<\/p>\n<\/div>\n

In the Nineteenth Century, some laws started to appear that were slightly more similar to the NFA\u2019s taxes. For example,\u00a0an 1844 Mississippi law\u00a0<\/a> taxed Bowie knives at one dollar, and dueling or pocket pistols at two dollars. In modern dollars, that\u2019s about a $43 tax on Bowie knives, and about $86 on pocket or dueling pistols.<\/p>\n

But to understand the difference here, it is important to note what was not taxed: the prevailing combat weapons of the time. Bowie knives and pocket pistols were seen as a criminal threat when carried concealed in this era, when those who carried lawfully did so openly. See Nunn v. State, 1 Ga. 243, 251 (1846) (contrasting constitutionally-protected open carry from concealed carry). Some scholars even distinguished the \u201carms\u201d protected by the Second Amendment from \u201cweapons\u201d which had no such protection. \u201cArms. . .is used for whatever is intentionally made as an instrument of offence. . .[w]e say firearms, but not fire-weapons; and weapons offensive or defensive, but not arms offensive or defensive.\u201d Joseph Bartlett Burleigh, The American Manual: Containing a Brief Outline of the Origin and Progress of Political Power and the Laws of Nations 31 (1852).<\/p>\n

Other similar taxes existed around this late-antebellum time period, like an\u00a01838 law from territorial Florida\u00a0<\/a>which taxed dealers (but not buyers) of dirks, pocket pistols, and bowie knives $200 per year. That law also taxed those who publicly carried those specific weapons ten dollars per year. But again, these were not the \u201cweapons of war\u201d of their time, but rather concealable weapons that were used in petty crimes and personal disputes. Moreover, these taxes existed almost exclusively in Southern states and territories, and we have to be careful about relying too heavily on laws from the South given that Bruen looks for a national tradition.<\/p>\n

Still, even if these laws were representative of the nation as a whole, there remains the problem that the taxes they enacted did not apply to military arms. A\u00a0North Carolina law from 1856\u00a0<\/a> makes this especially clear, specifically exempting pistols used for mustering from a $1.25 tax that otherwise applied on all pistols and bowie knives (though the tax only applied if the weapons in question were carried publicly, mere possession was untaxed).<\/p>\n

Given these laws were careful not to tax guns like large revolvers, muskets, repeating rifles, and so forth that were used in warfare, how could they be \u201cdistinctly similar\u201d to the NFA, which now applies to many arms that are useful in combat roles? For example, the\u00a0M4 carbine\u00a0<\/a> is our military\u2019s most common service rifle, and it has a barrel length of 14.5 inches. In the civilian context (and ignoring that it is also non-transferrable due to being a machine gun) that makes the most common military rifle a short-barreled rifle (\u201cSBR\u201d) subject to the NFA\u2019s tax, which applies to rifles that have barrels under 16 inches in length. (Sig Sauer\u2019s\u00a0M7 rifle\u00a0<\/a> that is set to replace the M4 will be no different, as it has a 13-inch barrel.)<\/p>\n

Following the Civil War, many southern territories under reconstruction adopted \u201cBlack Codes,\u201d which aimed to keep newly freed former slaves repressed, often with the assistance of the Ku Klux Klan. Strategic disarmament of Black Americans was part of this nefarious project, as even President Grant complained to Congress. See H. Journal, 42nd Cong., 2d Sess. 716 (1872). It\u2019s no surprise that the Jim Crow era also saw a much more rapid adoption of taxes on certain weapons in the South.<\/p>\n<\/div>\n

Some of these were barely veiled at all. An 1867 Mississippi law assessed a tax of between five dollars and fifteen dollars on \u201cevery gun and pistol,\u201d and if the tax was not paid, the Sheriff was obligated to seize that gun. This seems to be a very close NFA analogue, given it applied to all guns, and the tax was considerable, ranging from $108 to $325 per gun in today\u2019s dollars. The trouble is,\u00a0the law\u00a0<\/a>only applied in Washington County, Mississippi, and not the whole state. According to\u00a0 the 1860 census\u00a0<\/a>, Washington County was made up of 92% enslaved people, and even to this day is still over 70% African American. So this law was not some general tax on guns, it was a racist effort to price freedmen out of firearms ownership.<\/p>\n

The last large category of taxes related to weapons and arms in the latter parts of the Nineteenth Century are occupational taxes on dealers. These were not assessed on a per-gun basis and are not similar to the NFA\u2019s scheme. For example,\u00a0an 1885 Kentucky law\u00a0<\/a> imposed a tax of fifty dollars on dealers of pistols and bowie knives.<\/p>\n

To be sure, some historical taxes existed which arguably may lend support to the practice of including firearms in universally applicable taxes.<\/p>\n

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An 1874 Virginias law\u00a0<\/a> included all firearms and other weapons in its listing of taxable personal property, but this was part of a broader tax that encompassed all sorts of personal property including horses, cattle, carriages, books, tools, watches, kitchen furniture, and much more. The tax was 50 cents per every hundred dollars in total value of all this personal property. This is somewhat similar to modern sales taxes, which apply to all goods sold and do not single out firearms for special taxation.<\/p>\n

4. Conclusion: Taxes on Common Firearms have no Historical Support and are thus Unconstitutional<\/p>\n

While the above was certainly not a comprehensive listing of every historical tax on weapons and arms, it did provide a representative sample of the sorts of pre-1900 laws that existed imposing such taxes. Given Rahimi asks us to look for the \u201cprinciples that underpin the Nation\u2019s regulatory tradition,\u201d 602 U.S. at 692, there is not much that can be concluded from these laws given the numerous deficiencies they suffer from<\/p>\n<\/div>\n

They are not a national tradition, but rather a regional one existing primarily in Southern states. They did not usually apply to the prevailing combat arms of the time, but rather to concealable weapons like bowie knives and pocket pistols. And most reprehensibly, they sometimes existed as part of Jim Crow efforts to suppress newly-free Black Americans.<\/p>\n

In sum then, while the NFA\u2019s registration provisions are illegal and unconstitutional, we should not ignore that it right. The same applies to modern-day federal and state excise taxes, which can likewise point to no distinctly similar historical laws to support their continued existence.<\/p>\n","protected":false},"excerpt":{"rendered":"

Special Taxes on Firearms are Unconstitutional. 1. The Tax Law That Now Finds Itself Without a Tax In the recent discourse around the potential removal of suppressors and short barrel rifles from the provisions of the National Firearms Act (NFA) and its tax and registration requirements, a point made repeatedly was that if the tax … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23,50,8],"tags":[],"class_list":["post-111307","post","type-post","status-publish","format-standard","hentry","category-courts","category-goobermint","category-rkba"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/111307","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=111307"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/111307\/revisions"}],"predecessor-version":[{"id":111308,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/111307\/revisions\/111308"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=111307"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=111307"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=111307"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}