How Repealing a Gun Tax Could Upend a 90‑Year‑Old Law: Brown v. ATF and the Limits of Federal Power

Why one congressional repeal has sparked a constitutional fight

When Congress repealed federal taxes last July on sound suppressors and short‑barreled rifles and shotguns, it removed the revenue justification that long underpinned parts of the National Firearms Act (NFA). That change has prompted Brown v. ATF, a lawsuit arguing that the NFA's registration requirements for those items lack any remaining constitutional foundation.

Historical background: taxation as a constitutional hook

In 1934, Attorney General Homer S. Cummings acknowledged a simple constitutional reality: the federal government lacks an inherent police power to address local crime. Instead, Washington could act only where the Constitution provided a basis — "under the interstate commerce provision, or under the use of the mails, or by the power of taxation." Cummings explained that Congress often relied on the taxing power to achieve what an outright ban might not withstand in court: levy a tax and criminalize possession without a paid license.

That approach echoed earlier federal efforts. The Supreme Court repeatedly accepted taxation as a valid constitutional foundation for regulating substances and weapons. In Nigro v. United States (1928), the Court sustained the Harrison Narcotics Tax Act as a revenue measure even though its effect was to discourage nonmedical drug use. In Sonzinsky v. United States (1937), the Court upheld the NFA itself as a valid exercise of the tax power, finding registration and tax provisions supportable as an interrelated revenue scheme. Later, in Haynes v. United States, the Court again characterized the NFA as an "interrelated statutory system for the taxation of certain classes of firearms."

The modern dispute: Brown v. ATF

Brown v. ATF was filed after the tax repeal by two private gun owners, a gun dealer, the National Rifle Association, and several gun‑rights organizations. Their central claim: because the specific taxes on suppressors and short‑barreled rifles/shotguns were repealed, the registration requirements that existed to facilitate tax collection no longer have a valid basis under Congress's taxing power.

"Without a tax as a foundation," the plaintiffs argue, "the NFA's registration provisions as applied to non‑taxed NFA firearms are neither a tax themselves nor necessary and proper to levying a tax and are, therefore, unjustifiable as an exercise of Congress's taxing power."

The plaintiffs also resist a judicial effort to salvage the NFA under the Commerce Clause, noting that Congress originally rejected the Commerce Clause as the basis for the NFA. They argue the NFA neither regulates channels or instrumentalities of interstate commerce nor regulates intrastate activity with a substantial effect on interstate commerce. Finally, they invoke the Supreme Court's 2022 Bruen test to say suppressors and short‑barreled firearms are in "common use" for lawful purposes and thus protected by the Second Amendment.

Why this matters beyond silencers and short barrels

At stake is more than a dispute over a narrow class of firearms: the case raises fundamental questions about how Congress justifies federal regulation in areas traditionally treated as state responsibilities. For decades, courts moved from accepting taxation as the principal justification to a broader, more permissive Commerce Clause framework — a shift that enabled later federal gun and drug laws such as the Federal Firearms Act of 1938, the Gun Control Act of 1968, and the Controlled Substances Act of 1970.

The tug‑of‑war over constitutional authority has surfaced before. In United States v. Lopez (1995), the Supreme Court struck down the Gun‑Free School Zones Act because it did not sufficiently tie to interstate commerce; Congress later amended the law to reference commerce, and lower courts accepted that change. Brown v. ATF now tests whether the older, revenue‑based justification remains essential to the NFA's registration scheme, or whether courts should permit alternate constitutional rationales.

Possible outcomes and implications

A successful challenge could invalidate registration requirements only as applied to the formerly taxed items, potentially narrowing federal authority over those categories. Alternatively, courts could readopt Commerce Clause or other rationales to preserve the NFA's regulatory framework. Either outcome would shape the boundaries between federal power and state police authority, and could reverberate through other regulatory statutes that long rested on revenue or commerce justifications.

Brown v. ATF therefore sits at the intersection of statutory history, constitutional doctrine, and contemporary debates about federalism and gun rights — a seemingly technical question with potentially wide implications.

Further reading

For context, see the original Supreme Court decisions mentioned above: Nigro, Sonzinsky, Haynes, Lopez, and Bruen. Follow coverage of Brown v. ATF for updates as motions and rulings develop in the Eastern District of Missouri.