INTRODUCTION I. HISTORY OF THE NATIONAL FIREARMS ACT OF 1934 II. CONSTITUTIONAL CHALLENGES TO THE NFA A. The First Prong of the Ninth Circuit's Second Amendment Scrutiny Test B. Second Prong of the Test for Second Amendment Scrutiny 1. Intermediate Scrutiny 2. Strict Scrutiny III. INFIRMITIES IN THE NFA REGULATORY REGIME A. Auer Deference and the ATF's Regulation of Vertical Fore-Grips B. Chevron Deference and the ATF's Regulation of Vertical Fore-Grips C. Further Complications from the ATF's Fore-Grip Regulation Regime D. The Sig Sauer Brace Controversy IV. CONCLUSION INTRODUCTION
John Doe is a responsible citizen who desires to purchase his first firearm. After entering a federally-licensed gun store, an AR15 catches John's eye. (1) This popular firearm, a semiautomatic version of the rifle utilized by the United States Armed Forces, has become the quintessential tactical arm. (2) Due to size and weight considerations, John opts to purchase an AR-15 pistol, which has a barrel shorter than sixteen inches and lacks a buttstock. After clearing his background check and paying, John walks out the door and heads home with his pistol locked securely in his trunk. Once home, he begins to browse the Internet for attachments that can be added to the gun. He settles on a forward grip, which will increase stability, accuracy, comfort, and functionality. While an obvious buy, John's decision is fraught with peril. If he adds a vertical forward grip, he may be fined up to $10,000, be forced to forfeit the firearm, and face up to ten years in prison for violating the National Firearms Act of 1934 ("NFA"). (3) However, if John adds an angled grip, which is simply a vertical grip fashioned at roughly a 45-degree angle, he has not violated the law. (4)
This quagmire is the result of regulations and interpretations promulgated by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (the "ATF" or the "Bureau") over the past decade. The Bureau's efforts to implement the NFA have created a legal minefield requiring firearm owners to be well-versed in the law and agency regulation to avoid crushing fines and imprisonment. Some have unfortunately fallen prey to this regulatory scheme, such as the defendants in United States v. Davis, (5) United States v. Fix, (6) and United States v. Black. (7) For John, if he really wanted a firearm with a vertical fore-grip, the law requires him to either purchase another AR-15 in a rifle configuration or register his pistol as a short-barrel rifle.
These legal consequences stem from the federal government's first attempt to regulate firearms, an area traditionally regulated by the states. (8) The NFA, signed into law on June 26,1934, by President Franklin Roosevelt, enacted new regulations for manufacturers, transferors, and owners of (1) machine guns; (2) short-barrel rifles; (3) short-barrel shotguns; (4) "any other weapon[s];" (5) antique firearms; and (6) silencers. (9) The law originally required individuals desiring to own one of these restricted firearms to be at least twenty-one years old, pass a background check, submit two copies of their fingerprints and two copies of a recent passport-sized picture to the ATF, seek approval by a Chief Law Enforcement Officer in the individual's jurisdiction, pay a $200 tax stamp that must be kept with the firearm at all times, and register it with the ATF. (10)
Congress envisioned these restrictions and taxes as a means to deter the population at-large from seeking to own these firearms, while also ensuring that the government could track them. While some of these NFA-regulated firearms have discernable and legitimate operational differences from firearms not regulated by the NFA, short-barrel rifles, short-barrel shotguns, and "any other weapon[s]" have fallen prey to an arbitrary set of regulations rooted in fear, not fact.
This Note presents two arguments. First, short-barrel firearms regulated by the NFA have no discernable operational differences from firearms excluded from the Act, and thus the NFA's registration, taxation, and notification requirements for short-barrel firearms are unconstitutional. Second, the ATF has added insult to injury by using administrative action to expand these regulations far beyond the scope Congress provided. By allowing these practices to continue, law-abiding citizens risk imprisonment for attempting to increase the stability and safety of their firearm.
This Note proceeds in three parts. It will begin by discussing the history of the NFA, including its subsequent amendments, related statutes, and judicial decisions. Next, the analysis will demonstrate that the NFA unconstitutionally restricts short-barrel firearms that are in "common use." (11) Finally, this Note will argue that the ATF's interpretations of the NFA and associated regulations with respect to firearms attachments have no persuasive logical basis. Such interpretations should not receive judicial deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, (12) Skidmore v. Swift & Co., (13) or Auer v. Robbins (14) and regulations based upon them plainly exceed the authority granted to the Bureau by Congress.
HISTORY OF THE NATIONAL FIREARMS ACT OF 1934
The National Firearms Act of 1934 was enacted as part of President Roosevelt's effort to combat Prohibition-era violence. (15) During the hearings of the Act before the House Committee on Ways and Means, Attorney General Cummings testified before Congress to highlight the need of the NFA to combat criminals who crossed state lines. (16) Attorney General Cummings also postulated which machine guns or other arms were particularly suited for criminal use. (17) Citing Article I's interstate commerce and taxing powers, the NFA required manufacturers of short-barreled rifles, short-barreled shotguns, machine guns, silencers, and "any other weapon" (collectively, "NFA items" or "NFA-regulated firearms") to register restricted firearms with the Department of Treasury. (18) These registrations then had to be transferred to the individual purchasing the NFA item prior to his taking possession of the firearm. In so doing, Congress sought to restrict the free access to firearms preferred by criminals. The Act also required anyone owning these restricted firearms to register them with the Treasury Department prior to transferring it to anyone else, again in an effort to keep them from criminals. (19) Finally, and as another deterrent for those seeking to own a restricted firearm, the Act directed the Secretary of the Treasury to levy a $200 tax on the manufacture and transfer of most NFA items. When adjusted for inflation, this tax would be equivalent to $3,582.19 in 2016. (20)
The category of firearms considered NFA items is ambiguously and arbitrarily defined. The NFA originally defined short-barrel rifles and short-barrel shotguns as firearms "having a barrel or barrels of less than 18-inches in length [or] a weapon made from a [firearm] 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." (21) Congress settled on these length requirements based on the ability to conceal a firearm. (22) Still, that logic does not hold true in all cases. For instance, a shotgun with a 17.5 inch barrel is just as concealable (which is not very concealable) as a shotgun with an 18 inch barrel. Additionally, a rifle with an overall length of twenty-five inches and a 16 inch barrel is not practically more concealable than a rifle with a 26 inch overall length and an 18 inch barrel, even though the latter is not subject to the NFA.
Further arbitrary regulation arises with firearms that do not neatly conform to categories of firearms in the NFA. There are numerous firearms that do not fall in the NFA's definitions for short-barrel rifles, short-barrel shotguns, and non-regulated firearms, (23) and Congress believed the "space" between these statutory definitions could establish a safe harbor for dangerous weapons. As a result, the NFA creates another all-encompassing category of firearms labeled "any other weapon." The statute defines "any other weapons" as:
[A]ny weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell, weapons with a combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading, and shall include any such weapon which may be readily restored to fire. Such term shall not include a pistol or a revolver having a rifled bore, or rifled bores, or weapons designed, made, or intended to be fired from the shoulder and not capable of firing fixed ammunition. (24) As written, this category aims to restrict concealable firearms that do not qualify as another category of arms and are not a pistol or revolver with a rifled bore or bores. Congress still feared these firearms, but they were hard to label in a consistent manner and were mainly sought after by collectors, not criminals. (25) Unfortunately, "any other weapon" has grown into a behemoth, manipulated by the ATF to include a wider array of firearms which are not neatly classified as rifles, pistols, or shotguns than Congress intended.
The tax and regulatory scheme for firearms qualifying as "any other weapon" demonstrates that Congress tentatively accepted that a legitimate use existed for some of these firearms. (26) Unlike the $200 tax levied on other NFA-regulated firearms, "any other weapon[s]" are taxed at $5 per gun (27) In these and other regulatory provisions, Congress exerted a potentially deadly force upon this ambiguous class of firearms. By taxing manufacturers and transferors and imposing harsh registration requirements, Congress likely believed it...