Second Amendment Roundup: Removing Silencers from the NFA

As passed by the House, the FY25 reconciliation bill, H.R. 1, § 112029, would amend the National Firearms Act (NFA), by striking “any silencer” from the definition of “firearm.” It also provides that “there shall be levied, collected, and paid on firearms” transferred or made a tax of certain amounts on various firearms, including “$0 for each firearm … in the case of a silencer.”  The effect would remove silencers from taxation and registration under the NFA, which is chapter 53 of the Internal Revenue Code.  The bill is now pending in the Senate.

Opponents wrote a letter on June 5 to Mike Crapo, Chairman, Senate Committee on Finance, and Chuck Grassley, Chairman, Senate Committee on Judiciary, seeking to strike the amendment, which would “eliminate excise taxes on firearm silencers and remove their regulatory structure under the National Firearms Act (NFA)….”  It asserts that the amendment violates the Congressional Budget Act – know as the “Byrd Rule” – under which “non-budgetary provisions cannot be included in reconciliation legislation.”  It also makes policy arguments not relevant to that issue.

The pertinent provision of the Byrd Rule provides that a reconciliation bill “shall be considered extraneous if such provision does not produce a change in outlays or revenues….”  2 U.S.C. § 644(b)(1)(A).  Yet the only effect of the amendment would be to produce a change in revenues, by lowering revenues.  The current NFA tax on transfer or making of a silencer of $200 would be stricken.

As noted, the June 5 letter opposing the amendment also makes policy arguments.  It suggests that silencers were include in the NFA as passed in 1934 because Congress determined they did not have “a legitimate lawful use.”  It identifies three instances in which silencers have been used “in crimes across the country.”  And it claims that in 2023 numerous silencers were “recovered and traced from violent crime scenes.”  According to Axios, Senate Minority Leader Chuck Schumer is leading opposition in the Senate.

As a factual matter, silencers were barely mentioned in the 1934 Hearings of the House Ways and Means Committee which reported the bill that was enacted as the NFA.  Moreover, studies show that silencers are rarely used in violent crimes.  This is documented in my article The Power to Tax, The Second Amendment, and the Search for Which “‘Gangster’ Weapons” To Tax, 25 Wyoming Law Review 149 (2025).

Moreover, removing silencers from the NFA in no way deregulates them.  In the Gun Control Act (GCA), the term “firearm” is defined to include a silencer or muffler, rendering them subject to all of the GCA restrictions, including checks under the National Instant Criminal Background Check System (NICS) and a prohibition on possession by felons.

But the only issue here is whether the amendment would violate the Byrd Rule.  That it does not is verified by Supreme Court precedent on the NFA itself.  In Sonzinsky v. United States, 300 U.S. 506 (1937), the Court found the NFA on its face to be a revenue measure and nothing more, explaining that it contained no “regulatory provisions related to a purported tax” constituting a “penalty resorted to as a means of enforcing the regulations,” “nor is the subject of the tax described or treated as criminal by the taxing statute….”  It “contains no regulations other than the mere registration provisions, which are obviously supportable as in aid of a revenue purpose. On its face it is only a taxing measure.”

Moreover, Sonzinsky refused to speculate on any reasons why Congress might have taxed certain firearms: “Inquiry into the hidden motives which may move Congress to exercise a power constitutionally conferred upon it is beyond the competency of the courts…. They will not undertake, by collateral inquiry as to the measure of the regulatory effect of a tax, to ascribe to Congress an attempt, under the guise of taxation, to exercise another power denied by the Federal Constitution.”

Sonzinsky was reaffirmed as a valid precedent as late as National Federation of Independent Business v. Sebelius, 567 U.S. 519, 573 (2012).  Quoting Sonzinsky, Chief Justice Roberts added that the fact that Obamacare “seeks to shape decisions about whether to buy health insurance does not mean that it cannot be a valid exercise of the taxing power.”

The bottom line: the NFA is a pure taxing measure, currently a silencer is taxed as a “firearm” in the NFA, the amendment would remove a silencer from the definition of a firearm, and that would remove it from being taxed under the NFA.  Nothing more.  The amendment would thus not be “extraneous” under the Byrd Rule because it would “produce a change in … revenues.”

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