The National Firearms Act of 1934 (“NFA”) has long been a cornerstone of federal firearms regulation. Enacted in response to Prohibition-era violence, it imposes tax and registration requirements on short-barreled shotguns (“SBSs”), short-barreled rifles (“SBRs”), machine guns, silencers, destructive devices, and certain concealable weapons, including certain types of handguns, defined as “any other weapons” (“AOWs”).
For decades, the government has defended the NFA against constitutional challenges principally as an exercise of Congress’s taxing power. But, last summer, Congress reduced the making and transfer taxes for most NFA items—notably, SBSs, SBRs, silencers, and AOWs—to $0, while leaving the statute’s registration requirements and criminal penalties in place.
This post explores whether the federal government can still enforce the NFA’s registration requirements for items Congress no longer taxes, or whether this exercise of power exceeds Congress’s tax authority or its power to regulate interstate commerce.
Background
The National Firearms Act
Per 26 U.S.C. § 5845, the NFA covers the following weapons, characterized as “firearms” for purposes of the Act:
- a shotgun having a barrel or barrels of less than 18 inches in length;
- a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length;
- a rifle having a barrel or barrels of less than 16 inches in length;
- a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length;
- any other weapon, as defined in subsection (e)
- a machinegun;
- any silencer (as defined in section 921 of title 18, United States Code);
- a destructive device.
To acquire or make an NFA-regulated firearm, an individual generally must submit an application to the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), along with fingerprints and a passport-style photo. Before the 2026 change, applicants also had to pay a $200 tax for most items and a $5 tax for AOWs. ATF then runs a background check on the applicant, and the approved application registers the item in the National Firearms Registration and Transfer Record.
In addition to the provisions discussed above, which apply to applicants seeking to acquire or make an NFA-regulated weapon, the NFA requires persons and entities engaged in the business of manufacturing, importing, or dealing in NFA weapons to register with the ATF and pay an annual Special Occupational Tax (“SOT”).
Noncompliance is a criminal offense: no one may possess an NFA-regulated firearm without first filing an application and receiving ATF approval. Violators face up to ten years in prison, a fine of up to $10,000, or both.
What Changed: P.L. 119-21
Effective January 1, 2026, § 70436 of P.L. 119-21 (the “One Big Beautiful Bill Act”) reduced the making and transfer taxes to $0 for NFA items other than machine guns and destructive devices. The registration, approval, and penalty provisions, however, remain in place.
The Legal Landscape
Recent litigation challenging the constitutionality of the NFA relies primarily on New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022), which declared that the Second Amendment presumptively protects an individual’s right to bear arms in self-defense absent a historical tradition of analogous firearms regulation. Challenges to the NFA under this posture have generally, though not always, struggled. For example, some courts treat suppressors as accessories rather than protected “arms,” and others have held that certain models of firearms, like SBSs, fall outside the category of weapons that law-abiding citizens typically possess for lawful purposes.
Challenges to the NFA following Congress’s enactment of P.L. 119-21, however, rely on a different theory. Rather than centering exclusively on the Second Amendment, these suits claim the NFA exceeds Congress’s Commerce Clause and taxing powers. For instance, in the most recent suit, Roberts v. Bureau of Alcohol, Tobacco, Firearms and Explosives, No. 2:26-cv-00091-SCM (E.D. Ky. Feb. 26, 2026), plaintiffs allege that the NFA’s remaining “registration and related requirements on untaxed firearms exceed Congress’s enumerated powers.”
The Taxing Challenge
The Supreme Court has historically upheld and characterized the NFA as a valid exercise of Congress’s taxing power. In Sonzinsky v. United States, 300 U.S. 506 (1937), a unanimous Court upheld the NFA’s dealer tax, explaining that because the statute is “[o]n its face . . . only a taxing measure,” the NFA’s registration provisions were “supportable as in aid of a revenue purpose.” Later, in Haynes v. United States, 390 U.S. 85 (1968), the Court similarly characterized the NFA as “an interrelated statutory system for the taxation of certain classes of firearms.” And in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), Chief Justice Roberts cited Sonzinsky for the proposition that the Court has “upheld such obviously regulatory measures as taxes on . . . sawed-off shotguns.”
This constitutional basis is harder to apply when the law imposes no tax. As explained in Sebelius, “the essential feature of any tax” is that it “produces at least some revenue for the Government.” Because the NFA’s registration requirements for SBSs, SBRs, AOWs, and suppressors now raise no revenue, those requirements look far more like freestanding regulatory commands, akin to run-of-the-mill Commerce Clause regulations.
California v. Texas, 593 U.S. 659 (2021) raises similar concerns. There, challengers argued that the Affordable Care Act’s (“ACA”) individual mandate, whose monetary penalty Congress had also zeroed out via reconciliation, exceeded Congress’s taxation authority. The Court dismissed the case on standing grounds. But Justice Alito’s dissent argued that “Congress cannot supplement its powers through the two-step process of passing a tax and then removing the tax but leaving in place a provision that is otherwise beyond its enumerated powers.” If courts accept that reasoning, the zero-tax NFA provisions would be difficult to sustain under the Taxing Clause alone.
In defense of the NFA, the government could invoke the Necessary and Proper Clause. Under McCulloch v. Maryland, 17 U.S. 316 (1819), Congress has broad latitude to select the means by which it implements an enumerated power, so long as the means are rationally related to a legitimate end. As the government argued in Roberts v. ATF (E.D. Ky.), the challenged NFA requirements continue to serve a revenue-raising function, even if they no longer generate revenue directly. So even though taxes are not collected for certain items, the registration and approval process associated with the purchase of those items still generates revenue and provides ATF with the information it needs to (1) identify entities who should hold a license and pay the annual SOT, and (2) ensure that it properly collects taxes on machine guns and destructive devices (the items that remain taxed when an individual seeks to acquire or make them).
This theory faces several obstacles. Courts would need to accept that the zeroed-out categories remain meaningfully connected to the surviving revenue provisions. Because zeroed-out items (six) now vastly outnumber taxed ones (two), it may be hard to characterize the NFA’s entire registration apparatus as “necessary” to administer a tax that applies to only a narrow subset. Furthermore, the SOT is an annual occupational tax imposed on those engaging in the sale of NFA-regulated weapons, yet the transfer and making taxes are discrete, item-level taxes triggered by particular transactions or acts of manufacture. So treating the SOT as achieving the same policy ends as the item-specific taxes may strain credibility with some courts. Adding to this difficulty is that the NFA’s criminal penalties—which can include up to ten years’ imprisonment—could seem attenuated from any revenue-generation rationale.
The Alternative: Commerce Clause Defense
The government’s stronger defense is the Commerce Clause. The argument would be that SBSs, SBRs, AOWs, and suppressors commonly travel through interstate channels of manufacture, import, sale, transfer, and distribution, and thus qualify as “activities that substantially affect interstate commerce” under United States v. Lopez, 514 U.S. 549 (1995).
For NFA-regulated weapons that move entirely through intrastate markets, Gonzales v. Raich, 545 U.S. 1 (2005) offers a potential roadmap. There, the Court held that Congress may regulate even intrastate activity—in Raich, purely local cultivation and possession of marijuana—if leaving that activity unregulated would undercut a broader federal scheme governing an interstate market. Applied here, the government could argue that Congress may regulate the purely intrastate making and transfer of covered firearms because those activities can feed, evade, or undermine the interstate market for the same weapons. Registration and preapproval requirements help distinguish lawful from unlawful channels of commerce, prevent unregistered items from moving across state lines, and preserve the enforceability of the broader federal regime governing manufacture, importation, and distribution.
This argument avoids some of the pitfalls that doomed regulations in some previous Commerce Clause cases. First, because the NFA does not require passive individuals to enter a market, the government has a cleaner route around Sebelius’s activity/inactivity distinction that sank the ACA’s Commerce Clause defense. And second, the Lopez Court struck down the Gun-Free School Zones Act precisely because Congress had attempted to regulate activity—possessing a firearm near a school—that bore too attenuated a connection to interstate commerce, emphasizing that upholding such a regulation would effectively erase any meaningful limit on federal power. Invoking Lopez, Justice Thomas’s concurrence in United States v. Hemani, 608 U.S. ____ (2026) raised similar concerns. Addressing 18 U.S.C. § 922(g)(3), he questioned whether Congress may regulate ordinary firearm possession merely because the firearm once traveled in interstate or foreign commerce. The NFA stands on firmer ground, because it directly regulates the making, transfer, importation, and dealing of firearms, rather than prohibiting possession in certain geographic areas or by certain classes of people.
Still, the government’s theory faces headwinds given that the NFA walks and talks like a taxing measure, but now sits toothless in that regard. For example, as plaintiffs in Roberts v. ATF (E.D. Ky.) highlight, (1) the NFA’s introductory preamble states that it is an act “to tax the sale or disposal of” “certain firearms and machineguns,” (2) the NFA’s firearm registration requirements structurally correspond with firearm making and transfer taxes, (3) the NFA’s legislative history shows that deliberations centered on its nature as a tax, and (4) in the many decades following the NFA, Congress enacted entirely separate laws that seek to regulate commerce in firearms, including the Federal Firearms Act of 1938 and, later, the Gun Control Act of 1968. Given these realities, and the Court’s strong preference for clear Congressional statements, courts may refrain from recharacterizing the NFA as an exercise of Congress’s Commerce Clause power—especially given Congress itself zeroed out the tax for most items.
