Tenth Circuit Rules Gun Control Act And National Firearms Act Constitutional

BY Herschel Smith
1 month ago

10th Circuit:

Cox and Kettler argue that the NFA exceeds Congress’s power. We agree with the government, though: the NFA is a valid exercise of Congress’s taxing power, as well as its authority to enact any laws “necessary and proper” to carry out that power. U.S. Const. art. I, § 8, cls. 1, 18.

Among other enumerated powers, Article I of the Constitution gives Congress the “Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States,” id. cl. 1, and “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Power[],” id. cl. 18.

And on its face, the NFA is a taxing scheme. The statute collects occupational and excise taxes from businesses and transactions involving listed firearms—which include short-barreled rifles, silencers, and destructive devices. See 26 U.S.C. § 5845(a) (defining “firearm”). Importers, manufacturers, and dealers of these firearms must pay a yearly tax of $500 to $1,000. Id. § 5801. And each time one of these firearms is made or transferred, the statute levies a $200 tax. Id. § 5811 (“Transfer tax”); id. § 5821 (“Making tax”).

But the NFA does more than lay taxes. To carry out the taxing scheme, it also mandates the registration of every importer, manufacturer, and dealer, see id. § 5802, and of every firearm made, see id. § 5822, or transferred, see id. § 5812. And to ensure compliance, the statute has teeth: the failure to abide by any of its rules is a crime punishable by up to ten years in prison (or a fine, or both). Id. §§ 5861 (“Prohibited acts”), 5871 (“Penalties”).

The Supreme Court addressed Congress’s taxing-clause authority to enact the NFA eighty-one years ago, when a firearms dealer indicted for failing to pay the (then $200) annual dealer tax challenged the statute’s constitutional basis with an argument similar to Cox and Kettler’s. See United States v. Sonzinsky, 300 U.S. 506, 511 (1937). The dealer conceded that the taxing power allowed Congress to tax firearms dealers, yet he “insist[ed]” that the tax at issue was “not a true tax, but a penalty imposed for the purpose of suppressing traffic in a certain noxious type of firearms.” Id. at 512. But the Constitution, according to the dealer, had reserved regulation of these firearms to the states, not to the federal government. Id. He concluded that the NFA revealed its “penal and prohibitive character” by cumulatively taxing importers, manufacturers, dealers, and transferors. Id.

The Supreme Court rejected the dealer’s challenge, refusing to conclude that the NFA—on its face a taxing measure—exceeded congressional power “by virtue of its deterrent effect on the activities taxed.” Id. at 513–14. “Every tax is in some measure regulatory,” explained the Court, and “a tax is not any the less a tax because it has a regulatory effect.” Id. at 513. Unlike the child-labor tax struck down in the Child Labor Tax Case, the NFA tax wasn’t “a penalty resorted to as a means of enforcing [other] regulations.”

Read the whole thing.  The black robed tyrants conclude that merely taxing something means that Congress has the right to regulate something as long as the regulation comes with an attendant tax.

Given this, all the FedGov has to do is place a federal tax – direct or excise – on ammunition of $1000 per round, and to the tenth circuit this would be within the bounds of the constitution, even though the constitution explicitly says that “Congress shall make no law …”

As I’ve said, don’t look to the tyrants to protect your rights.  They are all in bed together, even if there is internecine warfare within the government to see who comes out on top of the totem pole.  When threatened, they band together like the communists they are.

They may renew their struggle later, but they will never upbraid another branch of government, law or regulation in front of the peasants.  That might lead to revolt.


Comments

  1. On October 16, 2018 at 11:45 pm, Georgiaboy61 said:

    Re: “As I’ve said, don’t look to the tyrants to protect your rights. They are all in bed together, even if there is internecine warfare within the government to see who comes out on top of the totem pole.”

    Expecting a corrupt and often-lawless government to reform itself is naïve in the extreme – in fact, a fool’s errand and delusion along the lines of expecting the mafia to police itself and suddenly renounce crime and go straight. It just isn’t going to happen.

    In fact, we’d be fortunate if the mob was the extent of the problem; the worst elements of the deep-state, i.e., the Clintons and their various criminal enterprises to name one example, make La Cosa Nostra look like amateurs.

    The mob may have been thieves, but at least they were patriotic and loyal to America, as evidenced by the cooperation of the New York crime families with the FBI and OSS during WWII, when the government sought their help in rooting out deep-cover fascist agents in place on the waterfront and elsewhere. The Clintons and their pals? Everything is for sale – including their so-called love of country.

  2. On October 17, 2018 at 8:50 am, Frank Clarke said:

    It is a fundamental principle of jurisprudence that later law trumps earlier law.

    Congress’ power to tax appears in Article I, section 8. The 2nd amendment occurs much later; years, in fact. Any power Congress had to tax firearms via I.8 was revoked by “shall not be infringed”.

    I hope that when this case goes to SCOTUS someone raises that issue.

  3. On October 17, 2018 at 11:32 am, Nutty Old Geezer said:

    I have a question. If a poll tax for voting is not legal, why is this legal? What’s the difference?

  4. On October 17, 2018 at 2:53 pm, Gryphon said:

    The “Poll Tax” mentioned was struck down as an Impediment to Exercising a Right- a Court Ruling ignored, obviously in this case, because the Tyrants in the corporate-fascist ‘government’ are Threatened by an Armed Citizenry. Thus, they Twist all Laws and make Excuses of every kind to Destroy the One Right that can Negate all their ‘power’.

  5. On October 17, 2018 at 4:54 pm, scott s. said:

    “I have a question. If a poll tax for voting is not legal, why is this legal? What’s the difference?”

    Amendment XXIV?

    scott s.
    .

  6. On October 17, 2018 at 9:13 pm, Longbow said:

    1. The Power to tax is the power to destroy. The USSC had already ruled, long before Sonzinski or Miller, in the Drexel furniture case (https://en.wikipedia.org/wiki/Bailey_v._Drexel_Furniture_Co.), that a tax which is so burdensome that it inhibits commerce and therefor raises no revenue, isn’t a tax at all but a prohibition, and therefore not valid. That argument wasn’t made in Miller, and the Court got it wrong in Sonzinski..

    2. The Poll Tax argument applies especially in light of Heller and McDonald.

    3. The “Art. I, Sec. 8, amended by the 2A” argument MUST be made directly to the Court, 9A and 10A arguments also.

    4.The old “Thats the way it is because thats the way WE want it to be…” argument can be resolved by last resort means.

  7. On October 18, 2018 at 5:16 am, Joshua Smith said:

    I do believe I recall my children’s own ancestor leading his own army into a bloody war over … wait for it … taxes.

  8. On October 19, 2018 at 4:14 pm, Badger said:

    “The black robed tyrants conclude that merely taxing something means that Congress has the right to regulate something as long as the regulation comes with an attendant tax.”

    That’s actually a good summary of the current state of affairs. Exhibit A would be the (Roberts) SCOTUS decision on Obamacare, that the penalty on someone – who didn’t want to be forced by FedGov to purchase a product – was not a punishment, but a tax. Thus one begats the other, and the resultant legal perspective for all later lazy generation of jurists to plagiarize, and the two (chicken & egg) are in a continuous support loop. Joseph Heller would be proud.

  9. On October 20, 2018 at 3:03 am, Dan said:

    Anyone expecting a federal court to issue ANY kind of ruling that places a meaningful limitation on the power of government is delusional. The Second Amendment is probably the clearest, simplest and most encompassing limitation placed upon government action yet it is also the Right that is MOST constrained by the government. Countless courts hearing countless cases of all types have had the opportunity over the past two centuries to state clearly and categorically that ALL of the thousands of laws currently in force infringing on our firearms rights to be UNCONSTITUTIONAL. Yet NOT A ONE has ever made such a ruling that has been upheld. Because any judge who ‘leaves the plantation’ on the issue of gun control and government power is QUICKLY overruled and when possible removed from the bench. We get our unbridled rights back when we start HANGING politicians and judges….and not one moment sooner.

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This article is filed under the category(s) Gun Control and was published October 16th, 2018 by Herschel Smith.

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