Some Florida lawyers are now trying to get the NFA thrown out as unconstitutional:
To summarize: any law, regulation, or government policy affecting the “right of the people to keep and bear arms,” U.S. CONST., Amend. II, can only be constitutional if the Government demonstrates analogous restrictions deeply rooted in American history evinced by historical materials contemporaneous with the adoption of the Bill of Rights in 1791. Bruen, 597 U.S. at *29.
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Defendant is charged under 18 U.S.C. 5861 and 5871, as well as conspiracy to commit those offenses. The charged statutes deal with the taxation and transfer of machineguns, and other weapons. The Government alleges the tchotchkes at issue—the “auto key cards”—to be machineguns. What’s more, actions subsequent to the passage of the charged firearm statutes render it impossible to comply with the taxing provisions, thus leaving the statutes a bizarre, vestigial area of law passed pursuant to the taxing power which—in dubious constitutionality—is used by the Government as an independent effective prohibition on the sale, transfer, or possession of any controlled devices not registered by 1986.
The Government may attempt to argue that machineguns are beyond the scope of the Second Amendment by attempting to characterize them as “dangerous and unusual,” as it has in other cases, but this is not the test. The court’s invocation of “dangerous and unusual” weapons in Heller and subsequently Bruen was for the purpose of discussion of what might be a constitutionally acceptable law, rather than the endorsement of any particular extant policy. Bruen, 597 U.S. at *12 (Clarifying that the Court was not undertaking “an exhaustive historical analysis…of the full scope of the Second Amendment”) (quoting Heller, 554 U.S. at 627). Rather, the only way a court may conclude Defendant’s conduct falls outside the scope of the Second Amendment’s unqualified command remains clear: the Government must prove the particular regime in question is consistent with the history and tradition of the United States. Id at *15. Furthermore, the question of whether a weapon is “in common use at the time,” necessarily pins the analysis to the time before the prohibition. To consider otherwise would incentivize the Government to legislate wantonly and aggressively, seizing arms, then later evade constitutional scrutiny by suggesting that the arms cannot be in common use, because the Government prohibited them. Such circular logic would be inconsistent with any fundamental rights jurisprudence. Thus, the Government has the burden to prove that the regime in question is consistent Case 3:21-cr-00022-MMH-MCR Document 101 Filed 07/01/22 Page 4 of 9 PageID 581 5 with the history and tradition of firearms regulation in this country around the founding era.
