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When Congress approved the National Firearms Act (NFA) in 1934, it framed the law as a tax measure, justifying its regulations as tools to facilitate the generation of revenue. That choice matters, a federal judge in Texas ruled on Wednesday, because several NFA provisions no longer serve that function. When Congress eliminated the federal taxes on making and transferring sound suppressors, short-barreled rifles, and short-barreled shotguns in 2025, U.S. District Judge James Hendrix concluded, it also eliminated the constitutional basis for the ancillary rules governing those activities.

Since the decision in Silencer Shop Foundation v. ATF bars enforcement of the challenged firearm regulations against the plaintiffs, it might look like a victory for gun rights. But it does not hinge on the Second Amendment, and it upholds a broader principle: The federal government’s powers are limited to those enumerated in the Constitution, and congressional legislation must be authorized by one of those powers.

“Because today’s NFA does not generate any revenue from untaxed firearms, its regulatory provisions cannot be upheld under the taxing power,” Hendrix writes. “And there is no sign in the NFA’s text, structure, or statutory history that Congress invoked any other power in crafting the NFA provisions at issue. Thus, the regulatory provisions must be enjoined as unconstitutional because they exceed Congress’s enumerated powers.”

The decision addresses consolidated lawsuits by two sets of plaintiffs, including gun owners, businesses, gun rights groups, and 15 states. Although the plaintiffs also argued that the NFA provisions they challenged violated the Second Amendment, they conceded that Hendrix did not need to reach that issue if he concluded that the regulations are no longer a valid exercise of congressional powers.

The NFA targeted weapons thought to be favored by gangsters, including machine guns and “destructive devices” such as bombs and grenades as well as “any silencer,” rifles with barrels shorter than 16 inches, and shotguns with barrels shorter than 18 inches. In addition to an annual occupational tax on importers, manufacturers, and dealers, it imposed a $200 tax on the production and transfer of the covered products. That tax, equivalent to about $5,000 today, was meant to be prohibitive.

Legislators were clear that they were relying on their tax power, the same rationale they had offered for the Harrison Narcotics Tax Act in 1914 and would again invoke when they approved the Marihuana Tax Act in 1937. Although that excuse might seem puzzling today, since Congress has long invoked its authority to regulate interstate commerce as an all-purpose license to legislate, the idea that the latter power could justify outright bans on politically disfavored products had yet to gain currency. The Commerce Clause did not become the go-to rationale for federal legislation until the Supreme Court expanded its meaning to encompass pretty much anything Congress wanted to do.

The NFA was enacted as part of the Internal Revenue Code, and Attorney General Homer S. Cummings explained why when he testified in favor of the bill. He noted that the federal government “of course” had “no inherent police powers to go into certain localities and deal with local crime.” Still, he said, “the power of taxation” could be used to restrict guns and accessories that Congress viewed as especially dangerous.

“If we made a statute absolutely forbidding any human being to have a machine gun,” Cummings explained, “you might say there is some constitutional question involved. But when you say, ‘We will tax the machine gun,’ and when you say that the absence of a license showing payment of the tax has been made indicates that a crime has been perpetrated, you are easily within the law.”

The NFA included various requirements ostensibly aimed at facilitating the collection of taxes. Anyone who wanted to make or receive a covered product had to file an application for approval and registration with the Treasury Department, accompanied by fingerprints, a photograph, personal information, and a detailed description of the relevant firearm or accessory. He had to send a copy of the application to the chief law enforcement officer in his local jurisdiction, who was instructed to supply any information that might disqualify the applicant.

That process is currently handled by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), which used to be part of the Treasury Department but has been a division of the Justice Department since 2003. ATF approval “can take weeks,” Hendrix notes.

These requirements were presented as part of a revenue-raising scheme. But last year, Hendrix says, Congress fatally undermined that rationale with respect to most of the covered products by passing the One Big Beautiful Bill Act, which repealed the taxes on their production and transfer. “By zeroing out the transfer and making taxes on ‘any firearm’ except for ‘a machinegun or a destructive device,'” he writes, “the One Big Beautiful Bill Act eliminated the constitutional basis for the NFA’s regulation of those firearms.”

The Trump administration argued that the NFA’s registration, reporting, and record-keeping requirements could still be justified under the Commerce Clause. Hendrix, a Donald Trump appointee, disagreed.

“Because Congress enacted the challenged NFA provisions under the Taxing Clause only, the NFA cannot be retroactively justified under another power that Congress never invoked, such as its authority to regulate interstate commerce,” Hendrix writes. “Although a statute’s constitutionality does not depend on express recitals of an enumerated power, courts must be able to discern the constitutional basis on which Congress relied. And there is no sign here that Congress relied on its commerce power to craft the provisions.”

In fact, Hendrix notes, the NFA’s scope extends beyond interstate commerce in some ways. The law covers a firearm or suppressor “made in one’s home or transferred in a private sale between neighbors (an intrastate activity)” as well as a firearm or suppressor “purchased commercially and shipped to a customer in another state (an interstate activity).”

The government “cannot employ post-hoc justifications to save a statute based on an enumerated power that Congress never invoked,” Hendrix writes. “The same goes for the courts.”

Hendrix issued a permanent injunction that encompasses suppressors, short-barreled rifles, short-barreled shotguns, and (for one set of plaintiffs) a miscellaneous category that the NFA confusingly describes as “any other weapon.” The order bars the federal government from enforcing the NFA’s regulations “against the plaintiffs and, where applicable, the plaintiffs’ agencies, political subdivisions, members, and customers.”

The Firearms Policy Coalition (FPC), which joined one of the lawsuits, welcomed Hendrix’s decision. “This is a massive win and an important step forward in our strategic plan to end the NFA,” FPC President Brandon Combs said. “We cannot wait to fully and finally eliminate this unconstitutional scheme so people can exercise their rights when, where, and how they choose.”

The post A Federal Judge Rejects National Firearms Act Regulations, Saying Their Tax Rationale No Longer Applies appeared first on Reason.com.

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When the Supreme Court ruled on Citizens United v. Federal Election Commission in 2010, the majority opinion reaffirmed that political speech is “indispensable to decision-making in a democracy, and this is no less true simply because the speech comes from a corporation.”

The state of Hawaii disagrees. In May, Democratic Gov. Josh Green signed Act 11 into law, which strips away corporations’ “power to spend money or contribute anything of value to influence elections or ballot measures” in the state. This means that under the law, all corporations—except for political action committees, political parties, and candidate committees—cannot fund initiatives on ballot measures, support proposed amendments, or contribute money to campaigns.

The law cuts directly into the mission of organizations such as the Grassroot Institute of Hawaii, a nonprofit that engages in political advocacy and education on ballot measures, legislation, and candidates.

In June, the group sued the state in district court, with the help of the Institute for Free Speech. The nonprofit is asking the court to void the law as a violation of the First and 14th Amendments. It has also filed a motion for a preliminary injunction to prevent Hawaii from enforcing the law while the court process plays out.

Tom Moore, senior fellow at the progressive think tank the Center for American Progress (CAP)—and the leading mind behind Hawaii’s law and dozens more like it—tells Reason that every right a corporation has “attaches to some kind of power” bestowed by the state. Moore says the Supreme Court’s decision in Citizens United was “based on a false assumption” that states would “never change the underlying power grant.” 

Hawaii’s argument rests on its use of the word “power“ as opposed to “right.” As the Legislature put it, “these political spending powers were never intended to be among the powers granted to corporations or other artificial persons by the State.” In the state’s telling, the Supreme Court’s ruling in Citizens United merely “interpreted” the powers granted to corporations by the state, meaning Hawaii can revoke those powers at its discretion.

However, Owen Yeates, senior attorney at the Institute for Free Speech and counsel for the Grassroot Institute of Hawaii, tells Reason that Hawaii’s law is “unconstitutionally vague” and “ignores 50 years of history.” He says the Supreme Court has consistently found that corporations are “entities or groups” used by individuals to “exercise and give effect to their individual rights.” That principle appears in cases such as NAACP v. Alabama (1958), Citizens United, Americans for Prosperity Foundation v. Bonta (2021), and First Choice Women’s Resource Centers, Inc. v. Davenport (2026). In Bonta, the Court held that government regulations on the First Amendment cannot be “broad” or “broadly stifle” speech and must be done with “narrow specificity.” 

Hawaii’s law would appear to violate that rule, with sweeping restrictions on what constitutes political activity and how corporations engage in it. Under the law, a Hawaii resident interested in a ballot measure or constitutional amendment up for a vote would be prohibited from pooling money with neighbors or friends through a nonprofit or association.

Collective group advocacy would also be impossible, unless done through a specified, state-sanctioned medium like a political action committee (PAC) or political party. Yeates says that’s a violation of the right to association, which is essential to “maintaining our liberty.” Associations give us “some power and control” over the political process, he adds. 

While the state can create benefits granted to corporations, benefits cannot be “conditioned” on “giving up constitutional rights.” That would violate the Supreme Court’s unconstitutional conditions doctrine, which holds that the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests.”

Moore says Hawaii’s law is not an attempt to regulate corporate speech—a constitutionally protected interest; instead, it’s a stipulation of the powers granted to corporations by the state. In his opinion, because the law doesn’t “tell you that some things are allowed and some things are not allowed,” there’s no First Amendment quandary. “This is the state saying…we just don’t create that kind of corporation anymore.”

James Bopp Jr., the corporate and tax law attorney who represented Citizens United in its Supreme Court case, tells Reason Hawaii’s logic is “absurd.” He says the law is “so fraught with unconstitutional provisions, it’s almost shocking that someone would propose it.” 

Bopp isn’t the only one shocked by Hawaii throwing down the gauntlet. 

Testifying before the state’s Senate Committee on Commerce and Consumer Protection, Hawaii’s Department of the Attorney General told lawmakers that “although states have the authority to determine what powers a corporation has, if a state tries to remove a corporation’s power to engage in election activity or ballot-issue activity, under Citizens United, a state would then be attempting to take away a corporation’s right to speak.”

It added that the state’s prohibition on speech related to elections and ballot initiatives constitutes a “content-based speech restriction” and is likely a violation of the First Amendment.

Moore welcomes the legal challenge. He says the point of CAP’s campaign is to get legislation like Hawaii’s “passed somewhere” to “get a federal lawsuit going.” 

While Hawaii is the only state so far to enact his proposal, the nonprofit People United for Privacy (PUFP) has identified 20 states that have tried to pass similar laws in the past year through the legislative process, a ballot measure, or a constitutional amendment. However, none have been as successful as the Aloha State. 

The idea has died in committee in all but three states, excluding a ballot measure proposed in Montana, two bills and a constitutional amendment being debated in Michigan, and a bill currently being considered in California that is expected to fail.

Zac Morgan, an attorney and senior fellow at PUFP, tells Reason these laws are “vague, arbitrary,” and rely on “subjective standards.” Still, the idea seems to have staying power. Matt Nese, vice president at PUFP, tells Reason he expects “reintroductions of all these other failed measures” in upcoming legislative sessions. 

That’s likely true. Moore says CAP has had “11 states approach us since Hawaii passed its laws.” While he concedes that the Supreme Court is “never going to like this bill,” he believes the Court will inevitably side with Hawaii because voiding the law would be akin to “tearing up two centuries of corporate law.” Should it stand, Hawaii’s law goes into effect on July 1, 2027.

Americans overwhelmingly think there’s too much money in politics. Hawaii’s carefully crafted wording may be good for public relations, but it’s difficult to see how it passes constitutional muster.

The post Hawaii's End Run Around <i>Citizens United</i> Faces a First Amendment Roadblock appeared first on Reason.com.

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From Leviss v. Madix, decided yesterday by California Court of Appeal Justice Victor Viramontes, joined by Justice Matthew Scherb:

This action arises out of the discovery of a private sexual affair, which garnered widespread media attention when news of the affair became public. Plaintiff and respondent Rachel Leviss had an affair with Tom Sandoval, the then-boyfriend of defendant and appellant Ariana Madix. At the time, Leviss, Madix, and Sandoval were all cast members on the reality television show, Vanderpump Rules.

Madix learned of the affair when she found sexually explicit videos of Leviss on Sandoval’s cell phone, which Madix then recorded and sent to Leviss. After the affair became public, Leviss filed suit against Madix for Madix’s alleged conduct in accessing, copying, and disseminating the videos.

Madix moved to strike the complaint under the California anti-SLAPP statute, which allows cases to be promptly dismissed when the cases are brought based on speech “in connection with a public issue,” and are legally unfounded. If a case is thus dismissed, the prevailing defendant can recover her attorney fees from the losing plaintiff.

The majority rejected the motion, concluding that the defendant’s alleged conduct wasn’t speech on a public issue:

Here, the challenged activity that formed that basis of Leviss’s claims against Madix was Madix’s alleged conduct in accessing, copying, and disseminating sexually explicit videos of Leviss that Sandoval surreptitiously recorded on his cell phone…. Considering that Leviss chose to appear on a popular reality series that centered on its cast members’ personal lives, Leviss’s “romantic entanglements” may very well have been a topic of widespread public interest prior to the disclosure of her affair with her fellow cast member, Sandoval. However, Leviss’s status as a person in the public eye does not mean that every aspect of her personal life was itself a matter of public concern.

For instance, in defining the scope of Penal Code section 647, the criminal “revenge porn” statute, the Legislature defined that the distribution of sexually explicit images “is not a matter of public concern or public interest solely because the depicted individual is a public figure.” As our Supreme Court also has recognized, “legitimate public interest does not include ‘a morbid and sensational prying into private lives for its own sake ….'”

At issue here are video recordings of Leviss engaging in a private sexual act at a private residence during a private FaceTime call with Sandoval. In her complaint, Leviss alleged that she never consented to Sandoval recording these calls, she was not aware that he was doing so, and she never intended for their intimate communications to be seen by anyone else.

While it appears both Leviss and Sandoval allowed Vanderpump Rules to film much of their personal lives as part of the reality show, there is no indication that the television cameras were rolling or that anyone else was present when Sandoval surreptitiously recorded Leviss engaging in a private sexual act…. [E]ven if Leviss’s affair with Sandoval was widely known at the time due to their status as public figures, any public interest in their affair would not extend to private recordings depicting the most intimate aspects of the relationship….

To be clear, we do not suggest that any statements Madix may have made about the videos could not be in furtherance of her free speech rights in connection with an issue of public interest. If the actions giving rise to any of Leviss’s claims against Madix were Madix’s public comments about the videos, including their sexual content, then that speech could fall within the scope of [the anti-SLAPP law]. However, … … the actions that form the basis for Madix’s purported liability and that we evaluate are not her statements about the videos, but her allegedly unauthorized acquisition and dissemination of the videos to Leviss and others….

As the dissent points out, Leviss’s counsel did indicate that Leviss would be seeking damages for the “public scorn and ridicule” she faced because her counsel did not know how one could “separate out” those damages. However, to determine whether a plaintiff’s claim arises out of protected activity under [the anti-SLAPP law], “we look to the allegedly wrongful and injurious conduct of the defendant, rather than the damage which flows from said conduct.” Here, the allegedly wrongful and injurious conduct at issue in the anti-SLAPP motion was Madix’s acquisition and dissemination of the videos, not the public scorn or ridicule that may have resulted from such dissemination….

[W]e express no opinion about the veracity of the allegations in the complaint or the merits of the claims alleged, including whether the conduct on which Leviss is basing her claims is actionable. In particular, we express no opinion as to whether Leviss can prove that Madix distributed the videos to anyone other than Leviss, or whether Leviss can prevail on her causes of action if, as Madix asserts, Leviss was the only person to whom Madix sent or showed the videos. For purposes of this appeal, we solely hold that Leviss’s claims against Madix are not subject to … [an anti-SLAPP] motion to strike because Madix failed to satisfy her threshold burden of showing that the claims arose from constitutionally protected activity.

Justice John Shepard Wiley dissented:

Today’s holding will astonish the enormous audience that followed #Scandoval.

Maybe you are not a fan of reality shows. Maybe you are like me: never heard of Vanderpump Rules or #Scandoval before this case.

You can get up to speed on these 15 minutes of popular culture by reading Aleksander, How Tom Sandoval Became the Most Hated Man in America, N.Y. Times Mag. [link added -EV]. This article, which the parties discussed in oral argument and urged us to consult, recounts the saga of three mass-marketed screen characters on a reality show. Tom Sandoval was in a committed relationship with Ariana Madix, who was close friends with Rachel Leviss. Madix discovered Sandoval was having an affair with Leviss. The betrayal launched a brouhaha the audience dubbed #Scandoval.

When a massive public audience gives a public name to an issue, that issue is of public concern. We judges can write all we want, but this public voted with its eyeballs.

The infamous sex tape was not “public”: just three people saw it. But the discussion about the scandal has been whoppingly public. Leviss’s complaint is filled with how the public nature of that discussion harmed her. At oral argument, Leviss’s counsel stated Leviss’s claims for damages would include compensation for the public scorn and ridicule. Leviss’s counsel said he did not know how one could “separate out” those damages from the bad effects stemming from the sex tape alone. Because nearly nobody saw the tape, this case is mainly about the public scorn and ridicule. Leviss hated her national bad press and sued for redress. That is public, because a sustained national public found the whole affair fascinating. That is the goal of reality shows: grip a colossal audience. #Scandoval did.

Under Baral v. Schnitt (Cal. 2016), then, we have mixed causes of action: part private and part public. I would remand for the trial court to sort through this mixture.

The trial court denied Madix’s motion on the grounds Madix broke the law by searching Sandoval’s phone. But Madix’s declaration can be read to say Sandoval gave Madix blanket consent to look through his phone. Under this reasonable interpretation, there was not enough to trigger the rule demanding “conclusive” proof.

Bryan J. Freedman, Summer E. Benson, and Jason H. Sunshine (Liner Freedman Taitelman + Cooley) and Mark J. Geragos and Kimberly M. Casper (Geragos & Geragos) represent Leviss.

The post Reality Show Participant's #Scandoval Sex Videos Aren't of "Public Interest" for California Anti-SLAPP Law Purposes appeared first on Reason.com.

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