“Congress *does* have such a power,”

No, it does not. Congress has the powers it is given by the Constitution, nothing more, and Congress is given no power to disarm the militia. Alito of all people should know that.

Simmer down. He’s got a historical point, albeit as I said before one the Courts dispensed with years ago.

Original version of the 1934 Act called for an outright ban on civilian possession of MG’s, suppressors, SBR’s, SBS’s, and handguns. DoJ opined that such a bill would likely be struck down as violating the 2A, and there was some pushback from some of FDR’s allies against a handgun ban. As a result, they retooled it by dropping handguns and making it a tax (albeit $200 / item in 1934 was near-confiscatory). But nevertheless, the thrust and legislative history of the ’34 Act was that as long as you registered the NFA items with the government and paid the tax, you could have all the goodies you want.

That’s changed over the years, as ATF started putting all sorts of extras on it, and the popular view (even among some judges) is that federal law had “prohibited” possession of NFA items or required a special license to possess them. And of course the Hughes Amendment dispensed with any pretext that the NFA was a tax statute by effectively outlawing civilian possession of MG’s (except for those already on the registry, which of course have now become so expensive as to make them effectively unavailable).

And don’t forget, a decade after the NFA we got Wickard v. Filburn, under which any limitations on what Congress could do under the Commerce Clause were washed away.

So while his argument has more than a little historical validity, there is too much intervening law to overcome . . . to say nothing of the fact that the Beltway mindset cannot process the possibility of civilians owning actual “weapons of war,” despite the fact that historically American can and did do so.

“… and it makes me queasy about the AWB challenges (although Benitez’s opinion is going to be VERY difficult to reverse procedurally)”

Semi-auto, magazine fed firearms are LITERALLY the most common type sold (and owned), and fits Heller’s “in common use” criteria, does it not?

{Alito}

“…or he’s smoking some kind of crack and think Congress has such a power.”

Congress *does* have such a power, in concert with the Senate and White House.

That’s *exactly* how the 1934 National Firearms Act and 2012’s ‘Obama Care’ got rammed down our collective throats, dude.

Whatever you’re smoking can I have a hit?

“A majority agreed that §5845(b) is ambiguous.”

A majority of the Fifth Circuit. Thomas did not find it ambiguous at all.

“In ATF’s view, Congress “restricted machineguns . . . .”

Again, Thomas is referencing the ATF’s views, not necessarily the Court’s. However, I concur that the overall opinion treats the ’34 NFA as a regulatory rather than a tax statute, but unfortunately that ship sailed long, long ago.

WRT Alito’s concurrence, as noted in my companion post this morning, Alito’s concurrence is probably curtains for any Bruen challenge to the NFA or Hughes Amendment, and it makes me queasy about the AWB challenges (although Benitez’s opinion is going to be VERY difficult to reverse procedurally). Alito’s throwaway concurrence is intellectually lazy because Cargill has never been a 2A challenge, and Alito needlessly popped off on this without even attempting any Bruen analysis. My suspicion is that this was some virtue signaling to the Beltway class that “I am not a gun nut” — as the example of Warren Burger (and to a lesser extent Justice Scalia) proves in spades, even “conservative” SCOTUS justices can suffer from Beltwayitis. (The only one who seems immune to this malady is Justice Thomas.)

In other accurate historical facts – SUPREME COURT STRIKES DOWN FEDERAL BUMP STOCK BAN.

“A majority agreed that §5845(b) is ambiguous”
So if it’s ambiguous. Why not strike the whole thing down under Chicago v. Morales (etc.)?

“In ATF’s view, Congress “restricted machineguns because they eliminate the manual movements that a shooter would otherwise need to make in order to fire continuously” at a high rate of fire”
Which is an interesting argument because the Congressional Record for the NFA actually says otherwise. The record explicitly admits congress can not restrict machineguns and congress is therefore only taxing things (the NFA’s passage predates Grosjean v. American Press Co, which explicitly slaps that idea down)

Alito’s concurance is even worse.
“Now that the situation is clear, Congress can act.”
He’s either knowingly encouraging Congress to violate human rights, or he’s smoking some kind of crack and think Congress has such a power.

“But if it looks like a dude, swims like a dude, and quacks like a dude then I call that a dude………oh wait she said duck…….”

A ban could still be coming, don’t get too comfortable. That will require both houses of Congress and the President to agree, so it might be awhile. But it very much COULD happen in the future.

As far as I’m concerned, if they want to add them to the NFA, then re-open the select-fire registry…

“So who does Slidefire contact about restoring their lost revenue?”

Likely nothing, sad to say.

I asked LKB yesterday about the upcoming ‘Loper-Bright’ SCotUS ruling, where a small fishing business was required by the Obama administration to pay $1,000 *PER WEEK* so a fisheries worker could inspect them while they worked at sea to see if any Dept. Natural Resources laws were being broken, if they could sue to get past payments back from the government, and he said no.

There really needs to be a law to correct that…

Good point Dave!