Punitive taxes and gun control lit the fuse of the American Revolution. Thus, it was particularly appropriate that President Trump signed into law the One Big Beautiful Bill Act (OBBB) on Independence Day 2025. The OBBB was the centerpiece of the president’s second-term agenda, and among its provisions was a historic repeal of taxes enacted in 1934 that represented Congress’ first major crackdown on Second Amendment rights. While that alone is worth celebrating, it is merely the first step in removing that stain on U.S. history.
To understand how we got here requires us to revisit the days of bootleggers, revenue men, Al Capone and another failed experiment in overregulation.
The 18th Amendment was approved by Congress in 1917 and ratified by the states on Jan. 16, 1919. It prohibited the manufacture, sale, transportation or importation of intoxicating liquors within the U.S. Nine months later, Congress passed the National Prohibition Act, colloquially known as the Volstead Act. That law empowered the U.S. Treasury Dept.—later the first home of ATF—to enforce Prohibition.
With parallels to the modern gun-ban movement, Prohibition arose from a naïve, self-righteous and shortsighted moral fervor that propelled a parochial and impractical policy to the top of American politics. Long before Shannon Watts and Moms Demand Action began preaching that guns are an evil, corrupting influence on society, activists like Carrie Nation and the Temperance Union did the same thing with alcohol. But Americans are stubbornly resistant to shrill rhetoric, theatrics and government crackdowns.
Ironically, ATF’s website contains an agency timeline that aptly describes the unintended consequences of Prohibition and the problems it unleashed on America:
January 1919 … [O]ne thing’s clear, Prohibition is having little effect on America’s thirst. Underground distilleries and saloons supply bootlegged liquor to an abundant clientele, while organized criminals fight to control illegal alcohol markets. The mayhem prompts the U.S. Department of the Treasury to strengthen its law enforcement capabilities. …
Organized criminal gangs illegally supply America’s demand for liquor, making millions and influencing the country’s largest financial institutions. Vast criminal fortunes corrupt enforcement officers, prosecutors, judges, juries and politicians.
Gangsters like Chicago’s Al Capone flourished in this environment, and the media had a field day recounting their exploits and making them celebrities. Whether justified or not, firearms like the Thompson submachine gun were used to symbolize this new breed of lawlessness to the public and achieved their own brand of infamy.
Prohibition earned the dubious distinction of being the only constitutional amendment to be repealed by another (the 21st), ratified in December 1933. Meanwhile, Capone had begun wasting away in prison on tax-evasion charges.
Nevertheless, more intent on exploiting recent history than learning from it, President Franklin Delano Roosevelt embarked on yet another prohibitory crusade by signing the National Firearms Act (NFA) into law on June 26, 1934.
The NFA’s original targets were machine guns, firearm sound suppressors and “concealable” firearms. This latter category included handguns, shotguns and rifles with barrels or overall lengths below certain thresholds, and a class of guns called “any other weapons” that were disguised as other objects. All were portrayed as the choice of gangsters and of no use to honest citizens. Lobbying by the NRA eventually defeated the inclusion of handguns.
Yet Congress faced a major problem banning any class of firearms. First, it had no enumerated power to regulate guns. Second, it was specifically prohibited from infringing on the right to keep and bear arms by the Second Amendment.
The Roosevelt administration sought to evade these limitations by crafting the NFA as a taxing scheme. Businesses making or selling NFA items would be required to pay “a special occupational tax” for doing so. Meanwhile, every transfer of an NFA item would also be subject to an application process and federal taxation, and all such items would have to be registered with the U.S. government to ensure compliance with these requirements. The tax for machine guns, suppressors and “short-barreled” shoulder arms (“shorts”) was set at what was then a prohibitively expensive $200.
Legal challenges arose quickly, and by 1937, the U.S. Supreme Court had upheld the law in Sonzinsky v. United States. There, a defendant who was prosecuted for dealing in NFA firearms without paying the tax claimed it was a gun-control law masquerading as a revenue measure and therefore beyond the scope of congressional authority.
The Supreme Court denied the claim, stating: “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.” With respect to the registration provisions of the bill, the Court stated: “the … registration provisions … are obviously supportable as in aid of a revenue purpose.” Because it was written as a tax, moreover, the Court would decline to delve into the motivations behind it: “Inquiry into the hidden motives which may move Congress to exercise a power constitutionally conferred upon it is beyond the competency of courts.”
If the NFA owes its constitutional viability to the pretext that it’s a tax-collection scheme, what happens to the law when there is no tax to collect?
The law was also challenged under the Second Amendment, giving rise to the infamous ruling in United States. v. Miller (1939), a bizarrely one-sided case in which only the government participated in the proceedings before the high court. At issue was a prosecution under the NFA or failure to register or obtain a tax stamp for a short-barreled shotgun transported across state lines.
The Court construed the legal issue in the case to be whether a short-barreled shotgun is the sort of “arm” protected by the Second Amendment. The justices considered whether it had a “reasonable relationship” to the “preservation or efficiency of a well regulated militia,” whether it was “part of the ordinary military equipment” or whether “its use could contribute to the common defense.” The opinion also discussed the concept of the militia in 1792, noting it was composed of “all males physically capable of acting in concert for the common defense,” who, when mustered, “were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.”
The Court had received no evidence from the defense on any of these points, and it was unwilling to take “judicial notice” that a short-barreled shotgun would meet the criteria it had identified. It therefore declined to sustain the Second Amendment challenge. Gun-control advocates, however, misrepresented this holding as establishing that the Second Amendment protected only a collective right to bear arms in an organized militia. Under that false premise arose the modern era of gun control.
Fast forward to 2025, as the Republican Congress sought to pass the OBBB under a special procedure called budget reconciliation. Although reconciliation’s rules are complex and opaque, it is meant to limit the subjects of legislation passed through this route to spending, revenue and the debt limit; changes in substantive policy are not allowed. The advantage of using budget reconciliation is that it allows the bill to pass with a simple majority, thereby avoiding a Senate filibuster. The Senate parliamentarian—a supposedly neutral, nonpartisan, unelected bureaucrat—referees the process.
The NRA and other pro-gun advocates realized the NFA—which, after all, had been characterized and upheld by the U.S. Supreme Court as a taxation measure—could be amended through budget reconciliation. These groups coalesced around the strategy of using the OBBB to remove suppressors and shorts from the NFA. Fresh in everyone’s mind was how the Biden-Harris administration had sought to retroactively ban millions of lawfully obtained braced pistols as “short-barreled rifles” under the NFA. The OBBB offered a historic opportunity to curtail such abuses and end more than 90 years of government overreach. Removing these items from the NFA would not deregulate them, however, but simply ensure they were treated as ordinary firearms under the Gun Control Act of 1968.
Nevertheless, the NFA’s taxing scheme for firearms was hypocritically characterized as gun-control policy when it was evaluated by the Senate parliamentarian as a subject for budget reconciliation. The parliamentarian ruled the NFA provisions were “extraneous” to the OBBB’s budgeting purpose, which prompted the Senate to amend the bill’s language to keep suppressors and shorts in the NFA but to reduce the tax on them to zero. That provision passed the parliamentarian’s review and became law.
It was a bittersweet outcome for Second Amendment advocates. Although eliminating the tax will make these arms more attainable, the retention of the NFA’s application, registration and administrative requirements leaves their acquisition subject to intrusive red tape and delays.
Yet … if the NFA owes its constitutional viability to the pretext that it’s a tax-collection scheme, what happens to the law when there is no tax to collect?
That answer will be provided by a federal court. By the time you read this, the NRA and its pro-gun partners will have filed litigation challenging the constitutional basis of the NFA as it applies to the zero-tax items.
The legal argument is simple: The NFA was born as a tax. It should die as one, too.
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