Don't get me wrong. I would like to repeal the NFA and the GCA, as well as get rid of the ATF. However, it doesn't seem constructive to label something as unconstitutional without showing how.
The issue, as many states have expressed, is whether or not the BATFE has the power to regulate a firearm before it crosses a state's boundary,
for the purposes of interstate commerce. By virtue of the 10th amendment, the federal government doesn't expressly have police powers. At least other than for federal property (Nat'l forests, parks etc) and the military. (expressly NOT the militia)
While there has been the federal Marshals under the DOJ for ages, they were/are restricted to crimes against the nation, not states (their statutes), or individuals.
New Deal (FDR) legislation expanded congressional power to regulate interstate commerce involving labor issues, agricultural commodities and taxation. Until then it was limited to strict guidelines involving interstate sales of goods and transportation services like railroads, or river navigation. Since then, they have at times, and on various issues, claimed a right to police forces as an extension of the commerce clause. But that still doesn't resolve the issue of whether or not they can regulate (or enforce) within the boundaries of a state.
The ATF (BATFE) came about as the enforcement arm of the IRS/Dept. of the Treasury, to enforce collection of taxes, specifically those on alcohol and tobacco. Then in response to the Gun Control Act of 1968, added the firearms division, in '70 the explosives division.
But it was still under the control of the treasury dept., for the purpose of regulating things through the enforcement of tax collection.
Then along came The Patriot Act. (the constitutionality of which continues to be debated, and was decried by Obama before it was his to control) The patriot act shifted control of the BATFE to the Dept. of Justice, and simultaneously created the Dept. of Homeland Security. The 10thA was skirted by much of it, claiming that the DHS is only involved in helping local/state and federal
investigative forces to "connect the dots."
When the Marshal's service, the BATFE and the FBI are deployed under direct orders of the Dept. of Homeland Security, often without local police involvement, it gets pretty obvious there is no provision in the constitution that supports a federal police agency to this degree, or for purposes not clearly defined/justified by the constitution.
Since the creation of the ATF was intended to enforce taxes under the Dept of the Treasury, justified by the interstate commerce clause and federal taxation, by moving them to the DOJ the feds lost that justification, within the confines of the constitution, taxation and congressional powers.
Since then, the role of the BATFE has morphed into some kind of federal police force claiming absolute authority, but with few clear boundaries (as defined by the constitution) as to their jurisdiction.
By stating that the BATFE is unconstitutional, one has interpreted the founder's documents in the spirit with which they were created. That being, as the primary limiter of federal powers. The 10th Amendment clearly states that if the constitution doesn't say the fed can, it can't, and that is left to the states.
One of the scariest lines Obama ever uttered was in his interview with Bill O'Reilly(IIRC) when he said:
I believe The Constitution says too much about what the government can't do, and not enough about what it can do.
I believe the actions of the BATFE under the current DOJ leadership is a prime example of what is wrong with that philosophy and why.
. Which of course is not the stance that the ATF and DOJ want to take on the matter.
