In a country that respected its highest laws, this would be the shortest article in the world:

“…the right to keep and bear arms shall not be infringed.”

“The National Firearms Act is an infringement.”


No, to be more accurate, in a country that respected its highest laws, I wouldn’t be writing this article at all. There would be no NFA. No Brady Law, either. No governmental restrictions on the right of peaceable citizens to own firearms—period.

But alas, Second Amendment infringements have clogged our law codes over the last 80 years like scum accumulating on a once-clear pond. There’s no shortage of abuses to write about. And the saddest part is that we’ve come to accept them as normal.

As I write this, I’m thinking of two news stories that hit last fall. One was trumpeted around the world. The other went mostly unnoticed outside the gun-owning community—but the two are linked.

First, as you can’t possibly have missed, the Democrats swept last November’s congressional elections. By the time you read this, they will have “owned” Congress for a few months.

Second, the day following the elections, ATF agents stormed into the life of one Hollis Wayne Fincher, a portly 60-year-old Arkansas gun owner. Agents descended on Fincher’s residence, frightened his wife, conducted a search that left their possessions in chaos, and treated an American citizen’s home as a trash dump for fast-food leftovers. Then they hauled Fincher himself away. To add injury to injury, Fincher was held for a time without even being allowed bail.

No, I’m not blaming the Democrats for that. On the contrary, Fincher was busted as part of Project Safe Neighborhoods, a Bush administration initiative, supported enthusiastically by the National Rifle Association. Project Safe Neighborhoods, they tell us, is designed to get “violent gun criminals” off the streets.

So whom did that “violent gun criminal” Hollis Wayne Fincher kill? Whom did he threaten? Whom did he conspire to attack? Whom did he wing, wound, perforate, puncture or graze? Not a soul. Fincher was charged in federal court with crimes against the National Firearms Act: owning an unregistered machine gun and a sawed-off shotgun.*

In fact, what Fincher and his colleagues in Arkansas’ Washington County Militia did that brought them to the attention of the ATF was create and publish a lengthy document arguing that the National Firearms Act (the act requiring a government permission slip and a hefty tax for owning such things as suppressors, short-barreled shotguns, and full-auto firearms) is unconstitutional. Furthermore, document argues that the NFA violates natural law and historic common law, and is dangerous to liberty.

To make matters even more provocative, Fincher and friends took their unregistered “NFA weapons” and made a very public declaration that they owned them. They were even photographed for a local newspaper, holding the firearms they had a natural right to possess, firearms they believed to be protected by the Second Amendment.

At this point, I’ve probably lost two groups of readers. One group says, “Well, they broke the law. So screw ’em.” Another says, “Well, okay, maybe they’re right about the Second Amendment. But only a moron would wave unregistered NFA weapons around in the media. So screw ’em.”

But. One of this country’s earliest and most important Supreme Court decisions, Marbury v Madison, says (in the words of Chief Justice John Marshall): “… an act of the legislature, repugnant to the Constitution, is void.”

In other words, any law that violates any part of the Constitution (including the Second Amendment) is dead on arrival. No one should have to obey it. No one should be prosecuted for disregarding it. To repeal it is merely an act of cleaning up useless old trash. It was null the day it was passed.

Lawyers and judges may haggle over the meaning of the Second Amendment and the legality of the NFA. But to anyone who can read plain English and knows the slightest bit of history, the reality is clear: the Second Amendment really does protect the right of peaceable individuals to own military-style weapons without infringement—and the NFA must go.

And even if we personally think Hollis Wayne Fincher was a little crazy to do what he did, we owe him a favor for trying to bring the NFA’s blatant unconstitutionality to light.

But what about those Democrats now romping triumphantly through the halls of Congress? What do they have to do with the Fincher case, the National Firearms Act or the future of our gun rights?

A lot of gun owners naturally fear that the Dems will rush in and pass a slew of new anti-gun (and anti-Second Amendment) laws. They may; I’m not saying they won’t. Especially if they get a president of their own party in 2008, their lust for power may know no bounds and their hatred for private ownership of firearms may be fully unleashed. But the point is, they don’t have to pass new anti-gun laws. They can harm and harass us mercilessly with the laws they already have. Furthermore, it’s in their political interest to do so.

The Dems know that gun owners were the most potent force in their 1994 political destruction. And what roused us against them? Their new anti-gun laws: The Brady law and the so-called “assault weapons” ban. We rose up and slaughtered the Democrats for passing highly visible new laws against our rights. Do you think they don’t remember?

Their current line is that the crop of newly elected Dems—the fiscally conservative and allegedly pro-gun “Blue Dog Democrats”—will balance out the Kennedys, Schumers, Feinsteins, and Pelosis. So the Democrat Congress will be “gun friendly.”

Riiight. And if you believe that, I’ve got a New York bridge to sell you.

Politically, the smartest thing the Dems could do is keep that gun-friendly facade while simply stepping up enforcement of existing anti-gun laws. (Which is, by the way, precisely what Bush II has done. Despite his vicious enforcement of Democrat-era laws and his wish to renew the “assault weapons” ban, he has still managed to persuade most gun owners that he’s on our side.)

Why risk voter wrath by passing new anti-gun laws when you’ve already got perfectly good tools for destroying gun owners?

Remember what that master of legal manipulation Lyndon Baines Johnson said: “You do not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harms it would cause if improperly administered.”

The simple fact is that hundreds, perhaps thousands, of perfectly harmless Americans have already been arrested, imprisoned, and financially ruined for technical violations of the National Firearms Act and other laws against gun ownership—under both political parties. All the Democrats have to do is step that up. Give more funding and authority to the ATF. Increase the size of Project Safe Neighborhoods. Do it “for the children.”

Consider the NFA and its enforcers. For decades under both parties, ATF agents have lied, framed people, and confiscated property without ever proving any crime. Members of their Technical Branch (tasked with determining which firearms are actually “NFA weapons”) make their pseudo-science up as they go along and change their minds about what constitutes an “illegal machine gun” faster than Paris Hilton changes her mind in a shoe store.

Recently, the ATF issued a particularly ominous ruling that, if “improperly administered” (as Johnson said) could overnight turn thousands of perfectly legal semi-automatic rifles into “illegal machine guns” and put their owners in prison based solely on irrelevant “features and characteristics.”

No new law needed—just twist the regulations, step up the enforcement and voila!—you can pretend to be gun friendly while depriving Americans of their liberties.

Ask yourself some questions:

What purpose is served by putting a peaceable man in a cage because a piece of steel is a little bit shorter than some long-dead politician decided it should be?

Why should any government want to deprive peaceable citizens of any small arms? (Remember that the farmers and merchants who fired “the shot heard round the world” to start the American Revolution had better small arms than the British government and were fighting against the British attempt to confiscate those arms.)

Whose interests are served by the NFA? The interests of gun owners? Hardly!

Who benefits from the decades-long rampage of the ATF? Not you and me. Yet even the most “gun friendly” politicians continue to use the ATF against us.

Finally ask yourself this question, especially if you’re in the group that believes anyone who breaks any law should be punished:

If you or I or Hollis Wayne Fincher must obey the law “or else,” then why don’t Congress, the ATF, and the nation’s courts have to obey the Constitution—or else?

[Fincher’s case is scheduled to go to trial before this article appears but after the author’s deadline. Updates on the case can be found at the United States vs. Fincher blog, Thank you to Stewart Rhodes and Silver for information and inspiration.]

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