A coalition of Second Amendment groups, including Second Amendment Foundation, Minnesota Gun Owners Caucus, California Rifle & Pistol Association, and the Second Amendment Law Center, are urging the Supreme Court to take up the case of a man charged with possessing a short-barreled rifle in violation of the National Firearms Act. On Thursday, the groups filed an amicus brief in Rush v. United States, which seeks to address whether “the Second Amendment secures the right to possess unregistered short-barreled rifles that are in common use for lawful purposes.”
The National Rifle Association has already taken an interest in Jamond Rush’s case, with NRA-ILA Director of the Office of Litigation Counsel Joseph Greenlee co-authoring the cert petition filed with the Supreme Court in June. Though the DOJ waived its right to respond shortly thereafter, the Court requested a formal response from the Justice Deparment in late July. On Thursday, Solicitor General D. John Sauer asked the justices for an additional 30 days to file that response, which will most likely be granted.
In their amicus brief, SAF attorney Kostas Moros argues that the question before the Court isn’t a difficult one. “A short-barreled rifle is indisputably an “arm” under the plain text of the Second Amendment,” Moros maintains, “and so any restrictions on it must comport with history.”
That’s not how the Seventh Circuit saw it. The appellate court declared that the’“popularity” and “prolif[eration]” of SBRs has “little jurisprudential value,” concluding that Rush failed to prove that they are “commonly used” for lawful purposes. How Rush is supposed to do that if the number of lawfully owned SBRs isn’t considered evidence of “common use” is beyond me (and Rush’s attorneys), but that wasn’t the only flaw in the appellate court’s opinion.
The Seventh Circuit used the Miller case from the 1930s to assume that, since the Supreme Court declared 90 years ago that short-barreled shotguns can be regulated under the NFA because they’re not suitable for militia purposes, it must also be okay to treat short-barreled rifles as beyond the scope of the Second Amendment’s protections.
But as Moros points out, there is no historical tradition of limiting barrel lengths of rifles, and SBR’s are, in fact, suitable for militia purposes.
Today, SBSs remain far less common than SBRs, with just 165,000 registered SBSs compared to over five times as many registered SBRs. And while SBSs were added to the NFA intentionally, the inclusion of SBRs was a historical accident. The NFA was originally going to regulate handguns too, and so SBRs wer eincluded to prevent criminals from circumventing the restriction by using SBRs instead of handguns. But after handguns were removed from the final version of the NFA due to public backlash, SBRs remained.
In a footnote, Moros also argues that even if SBRs were once uncommonly owned outside of the military, “they are popular today is enough for them to be unquestionably protected arms.
If the DOJ decides to defend the statute in its reply brief, it’s likely to argue that even if the Supreme Court were to conclude that SBR’s are protected by the Second Amendment, the NFA’s taxation and registration scheme is constitutional because it only imposes a “modest” restriction on the right to keep and bear arms.
The amicus brief tries to head off that argument by asserting that there is no national tradition of imposing special taxes on protected arms.
In the Nineteenth Century, some laws started to appear that were slightly more similar to the NFA’s taxes. For example, an 1844 Mississippi law taxed Bowie knives at one dollar, and dueling or pocket pistols at two dollars. But to understand the critical distinction, it is important to note what was not taxed: the prevailing civilian-owned 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. That did not apply to other arms which were typically openly carried.
Other similar taxes existed around this late antebellum time period, like an 1838 law from territorial Florida 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 civilian-owned combat arms 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.
Moros is right. A regional tradition is not a national tradition, and the South’s ruling class took a very paternalistic view of its citizens, both before and after the Civil War. The fact that some members of the ruling class regularly flouted its own laws, including statutes dealing with firearms and Bowie knives, should also be taken into consideration.
Moreover, Moros argues that these taxes often specifically exempted those arms that were suitable for use in a militia.
A North Carolina law from 1856 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 applied only if the weapons in question were carried publicly, mere possession was untaxed).
More taxation schemes emerged in the South after the Civil War was over, but many of those were either facially based on race or were tacitly designed to prevent freedmen from accessing and exercising their Second Amendment rights.
An 1867 Mississippi law assessed a tax of between five dollars and fifteen dollars on “every gun and pistol,” 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’s dollars. The trouble is, the law only applied in Washington County, Mississippi, and not the whole state. According to the 1860 census, 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.
The Supreme Court has avoided any case dealing with the constitutionality of bans on commonly owned semi-automatic rifles, so I’m hesitant to believe that there are five justices ready and willing to void any portion of the NFA. Still, the plaintiffs and amici make compelling arguments about why Jamond Rush should not face prison time for possessing a rifle that is commonly owned for a variety of entirely lawful purposes.
Editor’s Note: Unelected federal judges are playing games with our Second Amendment rights and ignoring what SCOTUS has previously said.
Help us expose out-of-control judges dead set on restricting our right to keep and bear arms. Join Bearing Arms VIP and use promo code FIGHT to get 60% off your membership.
Read the full article here
