GOP Rep. Grandstands With ‘Repeal The NFA’ Bill

Much of the NFA should be repealed, but the bill won’t achieve that.

Rep. Eric Burlison (R-Mo.) has introduced H.R. 335, the Repeal The NFA Act, the NFA being the National Firearms Act of 1934. Because the bill proposes to eliminate a firearm restriction, it has zero chance of passing the Senate as a stand-alone bill, because Democrats would filibuster any pro-firearm bill. (Breaking a filibuster, invoking “cloture,” requires 60 votes, there are only 53 Republican senators, and not all of them are reliably pro-Second Amendment.)

Also, because of one category of weapons the NFA regulates, H.R. 335 has zero chance of passing the House of Representatives. One give-away that the bill is a non-starter, is that it has only six co-sponsors, the other 428 members of the House apparently not being on-board.

Another possible indicator that H.R. 335 is not a serious proposal is that it is not prefaced with congressional findings presenting the reasons why it should be passed. For example, it could say “Congress finds that . . .

The Second Amendment, like other provisions of the Bill of Rights, was adopted to prevent oppression by the federal government, and

When the Second Amendment was adopted, and throughout American history until the National Firearms Act, the entirely private, fundamental right that it protects was understood to include, but not be limited to, the keeping and bearing of small arms identical, of similar type, or superior to those issued to members of the military without special restriction, and

Rifles capable of semi-automatic and automatic fire, that use detachable ammunition magazines, such as those of the M16 and XM7 series, and comparable rifles capable of only semi-automatic fire, such as the AR-15 and MCX Spear, including, but not limited to, those with barrels shorter than 16 inches, and including those equipped with sound suppressors and other features that would enhance their use for Second Amendment purposes, are the modern analogues of long guns most commonly used by private individuals and soldiers in the founding era, and

In District of Columbia v. Heller (2008), the Supreme Court correctly ruled that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” and

In U.S. v. Miller (1939), the Supreme Court correctly indicated that the right to keep and bear arms includes arms that relate to “the preservation or efficiency of a well regulated militia,” such as those that are “ordinary military equipment” and others the use of which “could contribute to the common defense,” citing the Tennessee Supreme Court’s decision in Aymette v. The State (1840), that “the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority,” and

The Supreme Court erred in Heller, suggesting in dicta that M16s are not within the scope of the right to keep and bear arms, based upon a mischaracterization of U.S. v. Miller as holding that the right to keep and bear arms is limited to arms “in common use,” a proposition for which there is no basis from the founding era, and which failed to take into account that M16s are not in common use because of the NFA’s restrictions, 18 USC 922(o), and similar restrictions imposed in several States, and

When the National Firearms Act was imposed, banning the firearms the acquisition and possession of which it restricts was understood to violate the Second Amendment, therefore the $200 tax the Act imposes on every transfer of each “firearm” within several categories of arms—equivalent to approximately $4,600 today—was intended to be prohibitive, and a tax that achieves a de facto ban violates the Second Amendment for that reason, and

Registration of firearms has been used by oppressive governments to facilitate the disarmament of civilian populations, often followed by the murder of the regime’s opponents, and

Prohibitive taxes on firearm transfers and registration of firearms violate the Second Amendment because they are outliers in the history and tradition of firearm laws in America, and

Though the alleged public safety benefits of any gun law do not nullify the right of decent people to keep and bear arms, the registration of firearms serves little, if any, use in apprehending criminals who use firearms, because most such criminals obtain their firearms by theft, black market purchases, and straw purchases and do not normally leave their firearms at the scenes of their crimes, to be recovered by the police.

Background

In the 1800s, lots of states violated the Second Amendment and comparable provisions in state constitutions, by imposing restrictions on the carrying of concealed handguns and knives, and most state courts let them get away with it. (Thanks to the good work of the NRA, most of those restrictions as applied to handguns were repealed in favor of “shall issue” carry permit laws between the mid-1980s and early 2000s.)

However, the NFA was the first major federal gun law—FDR’s attempt to begin the gradual process of civilian disarmament, a process continued by LBJ with the Gun Control Act of 1968 and every Democrat president thereafter, with varying degrees of success.

The NFA was originally intended to ban various long guns, but it was scaled back because the Department of Justice said that a ban would violate the Second Amendment. It was also originally intended to include handguns at the urging of FDR’s Attorney General, Homer Cummings, a former head of the Democrat National Committee, but Congress was not inclined to go along with that either.

So, as enacted, the NFA didn’t ban anything, and it ignored almost all handguns, but it required registration and a prohibitive tax for most “firearms” it covers. Since FDR’s purpose was to prevent people from having the firearms the NFA covers, the tax on most NFA firearms was set at $200, or about $4,600 in today’s dollars.

Though this simplifies things a bit, for the most part the NFA covers:

All automatic firearms, which it collectively refers to with the term “machinegun;”

Any short-barreled rifle (barrel under 16 inches or overall length less than 26 inches);

Any short-barreled shotgun (barrel under 18 inches or overall length less than 26 inches);

Any suppressor, which it terms a “silencer;” and

Any “destructive device,” which includes:

Any firearm with a barrel bore exceeding one-half-inch diameter, which, absurdly, includes shotguns (other than .410s) unless the BATFE declares the shotgun “sporting,” and . . .

Bombs, grenades, incindieries, missiles, rockets, poison gases, and the like.

It is because of bombs et cetera that repealing the entire NFA is a non-starter.

Fixing Rep. Burlison’s bill

If Burlison were serious, instead of grandstanding for gun fudds who say things like “all gun laws are unconstitutional” and demand to know “what it is about ‘shall not be infringed’ that you do not understand,” he would propose amending the NFA to deregulate arms that can most easily be argued are within the scope of the right to keep and bear arms.

The relevant argument is that the Second Amendment was adopted to guarantee “the security of a free state” against tyranny; in the founding era, private individuals had the same (or better) weapons as were issued to soldiers; and the citizenry was thought to be able to defeat the Army by being equally armed and outnumbering it by a large margin, as explained by Alexander Hamilton in The Federalist, #29:

[I]f circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.

And by James Madison in The Federalist, #46:

Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger.

And as begrudgingly admitted by the Supreme Court in Heller:

Among the “many reasons why the militia was thought to be ‘necessary to the security of a free state’. . . . when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny” and “It was understood across the political spectrum that the right helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.”

For more than a century, soldiers have been issued selective-fire rifles. Since the 1960s, that has included, but not been limited to, those of the M16-series, a majority of which today are short-barreled. (Selective-fire rifles are those that can be fired automatically or semi-automatically at the user’s discretion, by adjusting the position of the rifle’s “selector,” a part that also serves as its mechanical safety device.)

The Army’s new rifle, the selective-fire XM7 (SIG MCX Spear in semi-automatic-only configuration) is “designed to be suppressed and comes with a quick detach suppressor optimized for the system to deliver reduction in both sound and visible flash signatures.” And there are quite a few shotguns, some of which are short-barreled, in military inventory as well.

Therefore, selective-fire and automatic rifles (but not necessarily crew-served machine guns), short-barreled rifles (at least as short as found in military service), suppressors, certainly shotguns that are not short-barreled, and maybe those that are (again, at least as short as found in military service) should be removed from the NFA’s purview. (And, to be clear, selective-fire or automatic rifles should also be removed from 18 USC 922(o), which prohibits the private possession of a “machinegun” manufactured after May 19, 1986.)

A background check to acquire a firearm is a modern outlier in the history and tradition of firearm laws in this country, and is therefore unconstitutional and should be recognized as such under the standard adopted by the Supreme Court in New York State Rifle & Pistol Association v. Bruen (2022).

Crew-served automatic weapons—real machine guns—are a tougher sell. Those that fire the same caliber ammunition as service rifles are commonly issued to infantrymen, so an argument could be made that they’re within the scope of the right to arms for the same reason as selective-fire and automatic rifles.

However, given that whereas M16s and the like are point-target weapons, and crew-served machine guns are to some extent area target weapons, an argument could be made that continuing the NFA’s and 18 USC 922(o)’s restrictions on the latter doesn’t violate the Second Amendment, so long as such weapons are commonly possessed by the National Guards of each state (the organized component of the militia), somewhat fulfilling Hamilton’s vision of an organized militia of armed citizens, loyal to their states and “little, if at all, inferior (to the Army) in the use of arms.”

However, counter to that, since the National Defense Act (the Dick Act) of 1916, the National Guard has been dual-hatted as a reserve component of the U.S. Army, subject to being drafted into federal service by the president, and in Perpich v. Department of Defense (1990), the Supreme Court ruled unanimously that the president can federalize the National Guard at will.

Also, members of the Guard are paid by the federal government and many of them are trying to make it to 20 years of service, so they can retire with a fat pension. In a conflict between the people of their states and a federal tyrant who controls their paychecks and retirement benefits, to whom would Guardsmen be loyal?

So, it’s a bit complicated. But, first things first. A serious member of Congress should introduce a carefully-crafted bill to remove unconstitutional restrictions on firearms most clearly within the scope of the right that the Second Amendment protects. Questions about other arms and the situation relative to the National Guard are topics for another day.

Copyright © Mark Overstreet 2025