Attorney General Pam Bondi has a big problem. On November 20, the Department of Justice filed a cross-motion for summary judgment in the U.S. District Court for the Northern District of Texas on Novermber 20. The case is Silencer Shop Foundation v. ATF. It challenges the continuance of registration requirements for short-barreled rifles, short-barreled shotguns, suppressors, and AOWs now they are no longer subject to National Firearms Act making and transfer taxes.
The problem is the DOJ’s 46-page motion defends the continuance of registration requirements, saying they are supported by other federal legislative powers.
This set off a firestorm in the pro-2A community. The credibility of the self-styled most pro-2A DOJ in history took another major hit and criticism of Bondi ramped up to new heights. It didn’t help when Everytown, Giffords, and Brady filed briefs supporting the DOJ.
On December 18, U.S. Representative Andrew Clyde (R-GA-9) sent a letter to AG Bondi. It was co-signed by 35 other members of the House and six Senators (including Texas’ John Cornyn).
Apparently, Bondi had failed to respond to an earlier letter, so Clyde’s most recent missive was a bit more forceful. Clyde asked Bondi if she and the DOJ actually intended to ignore Congress’ intent when it zeroed out the making and transfer taxes on SBRs, etc.
As the Attorney General, Pam Bondi’s first and foremost responsibility is enforcing and defending federal statutes. This includes laws with which she might not agree. In addition, the realities of litigation often restrict what can be said.
However, completely stonewalling her own party in Congress is a really bad idea. If the House wanted to play serious hardball, it could issue a subpoena and compel Bondi to respond to the questions she has been dodging. The politics involved make this a very remote possibility, but it does exist.
I’m neither in the Pam Bondi fan club nor the mob calling for her head. But, at the moment, the most important player is Donald Trump. The President has the authority to demand a full briefing and to make the final decision. As of the day I’m writing this, I am not aware of any recent come-to-Jesus meetings in the Oval Office, so I have to assume Bondi still has the President’s backing.
Stripped to its basics, the DOJ’s defense is based on three of Congress’ Enumerated Powers. Article 1, Section 8 of the U.S. Constitution defines those powers in 18 Clauses. Three are being challenged: Clause 1 covers Congress’ taxing powers; Clause 3 is the Commerce Clause; and Clause 18 is the Necessary and Proper Clause, which authorizes Congress to enact any laws needed for carrying out the Enumerated Powers.
No one is challenging Congress’ taxing powers. But the DOJ is arguing requiring registration of short-barreled rifles, short-barreled shotguns, suppressors, and AOWs is still legal because the NFA still produces some revenue from other taxes including the Special Occupation Tax (SOT). However, those taxes have nothing to do with the making and transfer taxes zeroed out in the One Big Beautiful Bill. Since this specific tax no longer produces revenue, there can be no justification for continuing to require special registration of short-barreled rifles, short-barreled shotguns, suppresors, or AOWs.
Make no mistake: The National Firearms Act is a revenue measure. Since Sonzinsky v. United States, 88 years ago, the NFA has never been judicially affirmed as anything other than a tax.
Here’s what the Supreme Court said back in March 1937:
“The case is not one where the statute contains regulatory provisions related to a purported tax in such a way as has enabled this Court to say in other cases that the latter is a penalty resorted to as a means of enforcing the regulations. Nor is the subject of the tax described or treated as criminal by the taxing statute. Here, § 2 contains no regulation other than the mere registration provisions, which are obviously supportable as in aid of a revenue purpose. On its face, it is only a taxing measure, and we are asked to say that the tax, by virtue of its deterrent effect on the activities taxed, operates as a regulation which is beyond the congressional power.
“Every tax is in some measure regulatory. To some extent, it interposes an economic impediment to the activity taxed, as compared with others not taxed. But a tax is not any the less a tax because it has a regulatory effect, and it has long been established that an Act of Congress which, on its face, purports to be an exercise of the taxing power is not any the less so because the tax is burdensome or tends to restrict or suppress the thing taxed.”
Next, Bondi & Co. appeal to Congress’ broad powers under the Commerce Clause.
Since the Supreme Court’s ruling in Wickard v. Filburn, Congress’ Commerce Clause powers have virtually exploded. Nearly anything is covered, including not only firearms that are moving in interstate commerce, but those that have moved in interstate commerce, which is virtually all of them..
Congress established itself as the sole authority to regulate interstate commerce in firearms with the Federal Firearms Act of 1938. The DOJ contends this covers the registration requirements. Once again, Bondi’s Brigade missed the point. With the removal of the tax, short-barreled rifles, short-barreled shotguns, suppressors, and AOWs are now considered to be the same as any other ccommon firearm and can be sold by any licensed retailer. No SOT required.
As Rep. Clyde pointed out in his letter, this tactic has one huge drawback: It’s illegal.
Without the tax-compliance justification, the National Firearms Registration and Transfer Record becomes just a federal gun registry. Creation of any federal registry of guns or gun owners has been prohibited by law since 1986.
Dismissing the Necessary and Proper Clause is easy: It doesn’t come into play.
This is a gross oversimplification of a rather lengthy document, but it does address the most fundamental issues — except for one: Is this really the hill Pam Bondi wants to die on?
About Bill Cawthon
Bill Cawthon first became a gun owner 55 years ago. He has been an active advocate for Americans’ civil liberties for more than a decade. He is the information director for the Second Amendment Society of Texas.
Let’s define what we are working with.
The baffoonery started way back around 1774, and there’s no predictive end to it.
The morons in govt made a rats nest of Bill of Rights, so it continues the tradition.
The only fix is when American Patriots stand up to defend what’s obvious. Until then the baffoonery will live on.
Bill, to be clear, the creation of any new registry whether federal or state or any subdivision thereof is illegal. FOPA did nothing to inhibit existing registries like the National Firearms Registration and Transfer Record (NFRTR). Now if we can win this case, the other dominoes are lined up. Next might be to get taxes on the remaining NFA items ruled unconstitutional since precedent like MINNEAPOLIS STAR AND TRIBUNE COMPANY, Appellant v. MINNESOTA COMMISSIONER OF REVENUE rules against taxing a constitutional right. It follows that those remaining items must also be struck from the NFA. So with no registration, the… Read more »
As a former Florida resident and strongly pro 2-A conservative, I saw Pam do some good work and some not so good when I lived in the state. I had real hopes for her under DJT. To say I am disappointed would be a serious understatement.
Red Flag Barbie is not going to let anything pro 2A happen. She proved that when she was in Florida.
im with gunny we need to kick there ass.
Bill, you need a proofreader.
Nearly anything is covered, including not only firearms that are moving in interstate commerce, but those that have moved in interstate commerce, which is virtually all of them.. Shouldn’t one be intrastate?
and AOWs are now considered to be the same as any other ccommon firearm.
But I know you’re right, I just hope Bondi realizes it, SOON!
Hey, Blondie….BREAKING NEWS…. look around you. Whoever is sitting on your bench should give you a hint which team you’re dressing out with.
Always such fancy judicial footwork. “Every tax is is some way regulatory.” So, there was never any attempt to notice that, although taxes have regulatory effects, that is an incidental consequence. That is very different from legally justifying taxes that have an obvious and direct purpose of interfering with a Constitutional right. But that’s what a few people in black robes get to do to our freedoms.
I disagree that it is DoJ’s place to defend laws. It is Congress’ role to pass laws, and DoJ’s place to enforce those laws. Neither should have a dog in the hunt beyond that.
Maybe he needed a 12 gage shotgun with a 10 shot extension loaded with #4 buckshot. Just spray them all. Take out their legs and any that keep shooting, aim for their heads.