Transcription
In light of the fantastic news that the House of Representatives passed the Big Beautiful bill removing suppressors from the National Firearms Act, and the Senate Finance Committee just issued a new proposed bill—the Big Beautiful bill—that removes not only suppressors, but also short barrel rifles and short barrel shotguns from the National Firearms Act, there's been a lot of questions, some of which are kind of geeky. So, I need to step into the breach and answer these because I think that's my little contribution to this effort here to save America and our Second Amendment. So, let's break it down when we come right back.
Hey folks, I'm Mark Smith, host of the Four Boxes of Diner, proud American gun owner, constitutional attorney, member of the United States Supreme Court Bar, and I'm proud to say the top voice of the Second Amendment in America. Thank you. 2025 Gundy's Awards. All right, folks. So, you know the big news. You've been tracking it on this channel and mostly on a lot of other channels who've done a lot more work in this area dealing with the uh reconciliation bill known as Donald Trump's big beautiful bill.
As you're well aware, under the reconciliation rules, we managed to get around the filibuster, provided that the bill only deals with taxation and spending items. They can't make substantive legal changes to federal statutory law unless those laws are directly impacted by, or impact, the amount of money that's taken in through taxes or the amount that is spent in mandatory spending by the federal government.
So, with that said, you know what's been going on, which is the original bill, the big beautiful bill, was passed through the United States House of Representatives. In that big beautiful bill, suppressors were pulled out of the National Firearms Act. And of course, suppressors are in the NFA, which is a taxation statute because it costs $200 to get a suppressor. That's the fee you have to pay to the federal government to get a tax stamp to go along with the suppressor, in addition to what you pay to get the suppressor. Plus, of course, you have to register the suppressor, and you have to send in fingerprints and and the like. That's what the House did. They pulled suppressors out of the National Firearms Act under their big beautiful bill. And then they sent that bill to the United States Senate. The US Senate referred the bill to its various committees, including most importantly to the United States Finance Committee, or I should say to the US Senate Finance Committee, which is the committee that oversees all the money stuff. Makes sense.
Well, it turns out that the US uh the US Senate's finance committee issued a revised version of the big beautiful bill, and in it they went even further than the House of Representatives did when it comes to modifying the National Firearms Act. Specifically, the Senate Finance Committee not only removed the suppressors from the NFA; it also removed short barrel shotguns and short barrel rifles, meaning they put the Short Act into that bill. That's what the Senate Finance Committee did. This is fantastic news because it means, fingers crossed, candles lit, there's an excellent chance that the National Firearms Act will be dramatically shrunk for the first time since literally the 1930s, before World War II, during the era of that terrible American president, Franklin Delano Roosevelt. But I digress.
But in light of what's been going on here, a series of questions has been popping up in the comments to my videos, which, by the way, I generally read all the comments to my videos. I can't respond to all of them, but I do try to read all of them, and I do allow that in many instances to influence what I uh say and what I address in my videos. So, just be aware of that. So, in light of my review of the comments on my videos about these revisions to the National Firearms Act, there was a series of questions that have kind of popped up. And there's also questions that have popped up on my X account—X account at fourboxes Diner—in. If you're not, if you're on X, you need to be following me on four boxes Diner because I can get even more Second Amendment and political related news out the door on X than I can here on YouTube or on Rumble.
So, what are some of the big questions that I have been seeing and what are the answers to them? Well, the first question is, of course, uh will these changes to the National Firearms Act survive challenges by the Democrats in the bird bath process? The bird and bird, by the way, here in this context is spelled B Y R D—the bird law, the bird amendment, the bird rules, whatever you want to call these. Remember how I mentioned earlier in this video that the reconciliation budget process is a very special kind of process in Congress that allows a bill to be passed by the House with a simple majority and also by the US Senate by a simple majority. And there is no ability of the minority party—in this instance today, the Democratic party—to filibuster a reconciliation bill. But there is a substantive legal restriction on a reconciliation bill, which is what the big beautiful bill is, a reconciliation bill. And that restriction is that the only subject matter that a big beautiful bill or reconciliation bill can deal with is the spending of money, mandatory spending specifically by the federal government. Things like Social Security, Medicare, Medicaid, for example, mandatory spending by the federal government and taxation policy.
Now, the reason why the National Firearms Act can be modified consistent with the bird rule is that the National Firearms Act is undeniably a taxation statute. The National Firearms Act, for example, is governed by Title 26 of the US Code. It involves the IRS, and the penalties or the statute of limitations for penalties of violating the National Firearms Act fall under Title 26 of the US Code, such as the statute of limitations, because it's a taxing policy. And we know also for a fact that in 1937, the US Supreme Court said unequivocally in a case called Sonzinski that the National Firearms Act is a taxation act that was allowed to be enacted constitutionally because Article I of the US Constitution gives Congress the power to enact tax taxes—taxing policy. And the Supreme Court in 1937, addressing specifically whether or not the National Firearms Act was a constitutional tax or was it constitutional at all, said that it was indeed constitutional; it was indeed a tax.
Now you might say to me, Mark, the year of our Lord 1937 is a long time ago. So is this even binding real precedent today in the year of our Lord 2025? And the answer is undeniably yes, it is. Because in 2012, the US Supreme Court reaffirmed the conclusion of that 1937 Supreme Court precedent of Sonzinski when the US Supreme Court decided National Federation of Independent Businesses versus Sebelius, also known as the Obamacare case. And in that case specifically, the US Supreme Court said that the National Firearms Act is indeed a tax policy. It's a tax law. It's a revenue-generating law. So, even though the taxation may influence behavior, may function to some degree as a regulation, because you know, as John Marshall said early in our American country, early in the United States, the power to tax is the power to destroy. And that's true. And as I've said before, and other people have said, if you want more of something, you subsidize it; if you want less of something, you tax it. But the Supreme Court has said repeatedly, just because taxation policy causes something to become more desirable or less desirable, like smoking, taxes on smoking, that doesn't alter the fact that it's essential characteristic is a tax.
Now, the reason why I'm belaboring the point that the National Firearms Act in all of its glory, if you will, is a tax is because, as I explained to you, under the bird rule, the only thing that the reconciliation rules can do, the only thing a reconciliation budget can cover is things that involve taxation policy, revenue generation, or spending of the federal government. And because the National Firearms Act is a tax law, it falls square within the rules associated with a reconciliation bill. Which means when the Democrats bring a bird bath challenge, a bird challenge, arguing that it should be that the suppressor and the National Firearms Act changes involving short barrel rifles and the like should be taken out of this big beautiful bill because uh the Byrd amendment stops it from being in there because it's a substantive law, it's unlikely to prevail because there's clear precedent that these laws, the National Firearms Act specifically, are indeed tax laws and therefore they are subject to be unchanged through the reconciliation process. And again, the reason why this is so good for the Republican party today and thus by extension the Second Amendment movement today is because the Democrats in the Senate cannot filibuster this. Because if we had to pass if we had to get 60 senators to sign off on anything to reduce the amount of gun laws in the United States, we would never get 60 senators. So the reconciliation process is a way around that, and I think it will succeed.
But beyond that, there's some other questions about this big beautiful bill and its alteration of the uh National Firearms Act, and what does it mean? So, one of the big questions I'm getting is what happens if the Democrats get in power? You have a Democratic House, Senate, and White House. And can they just put this law back into place? Well, the answer there's really two levels of the answer: there's the statutory answer, and then there's the constitutional answer. Statutorily, I suppose conceptually, that's correct. If you got an entire Democratic government back in place, I suppose you could, as a matter of statutory law, put these items back into the National Firearms Act and tax them just the same. I suppose you could do something like that. However, and this is the big however, and this is why you tune tune in to the Four Boxes Diner to get the sophisticated, elevated answer to this stuff. Let's think for a moment what's going to occur assuming this law goes into effect the next couple months. What's going to happen between now and the date on which you have a unified Democrat government? Assuming that occurs, let's assume it even occurs in 2028 for the sake of argument. Well, I can assure you that between 2025 and 2028, millions and millions of short barrel shotguns and millions of short barrel rifles and millions and millions of suppressors are going to be acquired. And at the same time, the United States Department of Justice is making it crystal clear, as well they should because it's the correct answer, that all firearms as well as all suppressors are arms under the text of the Second Amendment: "The right of the people to keep and bear arms shall not be infringed." And as you know, and as we've covered on this channel several times, if the Democrats wanted to go out there to try to ban suppressors, to try to ban short barrel rifles, to try to ban short barrel shotguns, let's say, they're going to run smack dab into the Heller precedent that says that once you're dealing with an arm ban, which these would be arm bans, the burden shifts to the government to show that the arms they're banning are dangerous and unusual. And by extension, the government bears the burden to show that these arms, in this case, short barrel rifles, short barrel shotguns and suppressors, that these arms are not in common use. And that will simply be impossible to show because there's already millions of these things out there. And by the time you get to the year of our Lord 2028 or beyond, they're going to be even more in common use than ever before. So, it will be very difficult for the Democrats to prevail on an argument that they can constitutionally ban these weapons, these arms.
But let's go beyond that. Let's assume they just put them back into the National Firearms Act and they have a targeted tax, which is what these would be, right? The same idea goes. The US Department of Justice has already taken the position that all these items are arms under the text of the Second Amendment. See what the Department of Justice under Donald Trump said in the US versus Peterson case just recently down there in the US Court of Appeals for the Fifth Circuit involving Texas and Louisiana. They're already saying that these items are arms. It is my prediction that over the next couple years, the Department of Justice is going to argue these are arms and that you're going to see a whole slew of courts and likely, between now and the end of the Trump term, the US Supreme Court is going to say these items are arms as well. The reason why that's important is once they are arms, they're going to fall under the text of the Second Amendment: "The right of the people to keep and bear arms shall not be infringed." Which means if you have a targeted tax on these arms, which you will undeniably see if they put the Democrats put these items back into the National Firearms Act, you're going to have a targeted tax on a constitutionally protected item. And as you know, under several Supreme Court precedents, including the 1980s precedent of Minneapolis Star dealing with the taxation of ink and the Harper versus Board of Elections decision in the 1960s dealing with a $150 poll tax, a targeted tax on constitutionally protected activity is verboten. It's a no-go. And again, there's going to be no debate these things are in common use to the extent that's ever an issue because they're going to be robustly in common use. If you pull these out of the National Firearms Act and anyone can buy them with just a 4473 without going through the headache of registering and doing all that other nonsense with the ATF.
So again, I think the Democrats could try to bring this stuff back, but I don't know if they're going to be able to succeed constitutionally even if they could get it done statutorily. And there's a lot of assumptions that the Democrats could somehow win the House, the Senate, and the White House again and have that trifecta. It's certainly doable, but I don't know how likely that is. We're going to see that scenario in the next several years. Anything's possible, of course. And likewise, there's a lot of questions about what's going to happen with, for example, these laws at the states where various state laws say different things like um, you know, you cannot have a short barrel rifle or short barrel shotgun or suppressor unless they're registered with the NFA under the NFA. Again, once these items are viewed as arms under the text of the Second Amendment: "The right of the people to keep and bear arms shall not be infringed." Once they are arms and they are then banned, well, guess what? I've already done the analysis. These items are going to be in common use by Americans for lawful purposes if they're not already. And that number is going to continue is going to skyrocket. And because the standard for what is in common use is not based on locality—I mean it doesn't matter if a gun is in common use in New York City—the question is, is the arm or is the gun or is the suppressor is the SB in common use by Americans for lawful purposes in America? Which means that even if a certain a couple states have banned these items unless they're registered with the NFA, assuming that you can't fix this uh with the federal statute, that's a whole separate issue. But assuming you can't do that, I think you still have a strong constitutional argument that they cannot be banned because again they cannot, you know, the government cannot satisfy its burden under the in-common-use test, which is the only way you can constitutionally ban an item is if an item is dangerous and unusual. And if these items are basically ubiquitous in the United States, they're not going to be unusual. And if they're not unusual, because they're common, then they cannot be dangerous and unusual; the government cannot sustain its burden uh that it needs to sustain in order to ban an arm under the Second Amendment.
All right, folks. So, those are some of the big questions I've been getting. Hopefully, this helped you uh uh think through some of these analytics. If there's more questions, feel free to send them on my way and I'll try to address them in a future video. In the meantime, thanks again for tuning in. Make sure you follow me on X—@fourboxesdiner. Don't forget to subscribe to both YouTube and Rumble, and I look forward to talking to all of you real real soon here at the Four Boxes Diner. Orders up. Table 2A. [Music]