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View Full Version : Amazing Stuff! Text of Congressional Record for introduction of 1934 NFA (HR9066)


AJAX22
01-04-2011, 6:04 AM
https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B4xHVurgr6T4YTJjMTkzNjQtMDUyMy00NTQyLTk1N2I tMWRmMzI2MThjM2U3&hl=en


READ THIS!!!!!!

Mind blowing....

The AG lays it out in a very interesting way ;) particularly now that we have the 86 hughes amendment... and in light of the Drexell case.

CCWFacts
01-04-2011, 8:26 AM
Wow, what a cool historical find!

Who knew that such an act even passed. I'm glad no such laws are on the books now.

Mr. Chairman and members of the committee, I do not think it is necessary to make any very elaborate statement, at least at the beginning.
This bill is part of a program that has been formulated by the Department of Justice, following our experiences with the crime situation. I think it is a very essential part of it. There are pending before other committees, as of course you are aware, quite a number of bills which are designed to enable the Department of Justice to deal with what I think is generally recognized as a very serious national emergency.

Well that was 80 years ago, so the emergency must have ended a long time ago and they repealed all these emergency measures, right?

(This is Lesson #483895 of the fact that "emergencies" never are, and "temporary" powers never are.)

formerTexan
01-04-2011, 10:27 AM
It would appear that after US Vs Rock Island, the US AG/DOJ learned their lesson and charged under 922(o) in US Vs Stewart, which was upheld on remand after Raich (however, under pre-Heller logic, relying on Silveira in dismissing Stewart's 2A claims). I don't know if Stewart can appeal again, now that his 2A claims can be re-examined due to Heller/McDonald.

Right now, we have cases invalidating Internal Revenue Code regarding taxation/registration of MGs, in light of 922(o). But what to do about 922(o) itself?

CCWFacts
01-04-2011, 10:36 AM
I also note that, originally, there was desire for the NFA to include handguns and any gun that can fire more than 12 times without reloading, without regard to semi- / full- auto. In fact the only thing that would be exempt would be traditional hunting rifles and shotguns (including traditional-style semi-autos like the Browning A5).

Also the $200 tax was pegged to approximately double the price of MGs. That would make them expensive but not out of reach for ordinary collectors or enthusiasts.

AG Homer Cummings thought that there was "universal" agreement that MGs (which include semi-autos with capacity over 12 rounds) had no place in private hands.

The NFA really was an attempt to pass the AWB 60 years before Clinton got into it. Fortunately most of the AWB aspects were stripped out. If they had not been, there would be no "black rifles" culture here, and no CCW because there would be no pistols.

AJAX, it's great you are working on all these issues, including getting the video of the Hughes Amendment voice vote. Your research isn't going to immediately launch legislative changes but it will make the rounds of the forums for a few years and build consensus among gun owners that we have been unfairly robbed of our rights to own things which should be legally available.

AJAX22
01-04-2011, 10:38 AM
It would appear that after US Vs Rock Island, the US AG/DOJ learned their lesson and charged under 922(o) in US Vs Stewart, which was upheld on remand after Raich (however, under pre-Heller logic, relying on Silveira in dismissing Stewart's 2A claims). I don't know if Stewart can appeal again, now that his 2A claims can be re-examined due to Heller/McDonald.

Right now, we have cases invalidating Internal Revenue Code regarding taxation/registration of MGs, in light of 922(o). But what to do about 922(o) itself?

I think the answer to that lies in Drexell (child labor case)

here is some of my notes on the subject.... Im still reading and working on it...



Original intent can be found here...

The Federal Firearms Act of 1934

https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B4xHVurgr6T4YTJjMTkzNjQtMDUyMy00NTQyLTk1N2I tMWRmMzI2MThjM2U3&hl=en

Some excerpts are:

Which is HR 9066, to provide for the taxation of manufacturers,
importers, and dealers in small arms and machine guns and other
weapons

All these bills have been drafted with an eye to constitutional
limitations, and have been kept within a scope which indicates that
there is no desire upon the part of the Department of Justice

Now we proceed this bill generally under two powers-one, the taxing
power, and the other the power to regulate interstate commerce. The
advantage of using the taxing power with respect to the identification
of the weapons and the sale and so forth, are quite manifest. In the
first place there is already in existence a certain machinery for
dealing with the collection of taxes of this kind

Attorney General Cummings: Well the only answer I can give to you Mr.
Cooper, is that I racked my brains to try to find some simple and
effective manner of dealing with those already armed. This bill is in
two parts, The first part, under the internal revenue measure, deals
with the weapons as they now are coming out of the factories, and it
seemed to us that the establishment of a system for the tracing of the
weapons from owner to owner by a certificate of title might also be
attempted with reference to arms already in existence. If we can once
make a start and begin with the manufacture and disposal so that each
person hereafter obtaining a weapon of the prescribed type would have
to show his title to it and the propriety of its possession, that is
about all we can do with that part of the problem.

The other part of the problem is dealt with under the interstate
commerce provision, which makes it an offence to carry in interstate
commerce any of the weapons which are under the ban of the law with
certain exceptions. So if for instance, Dillinger, or any other of
those roving criminals, not having proper credentials, should carry a
revolver, a pistol, a sawed off shotgun, or a machine gun, accross a
state line and we could demonstrate the fact, that of itself would be
an offense, and the weapon would be forfeited. And that is the only
way I can think of to handle this where the weapons are already in
existance.

Attorny General Cummings: Oh, we do not expect to escape it (the 2nd
ammendment) We are dealing with another power, namely the power of
taxation and of regulation under the interstate commerce clause, You
see, If we made a statute absolutly forbidding any human being to have
a machine gun , you might say there is some constitutional question
involved. But when you say "We will tax this machine gun" and when
you say "the absence of a licence showing payment of the tax has been
made indicates that a crime has been perpetrated" you are easily
within the law.



Dalton argues in our favor that 922(o) invalidates the 34 NFA

960 F. 2d 121 - United States v. Dalton

http://openjurist.org/960/f2d/121/united-states-v-dalton


Also I believe some of the language in US. V. Modina is favorable to us.

444 F.3d 910
UNITED STATES of America, Plaintiff-Appellee,
v. Modina LIM, Defendant-Appellant.
No. 05-2419

http://ftp.resource.org/courts.gov/c/F3/444/444.F3d.910.05-2419.html

The Court has also evinced a willingness to tolerate companion
provisions that are overtly regulatory so long as they have a
plausible nexus to taxation.


But the crux of our argument will hinge on Sonzinsky I think.

SONZINSKY V. UNITED STATES, 300 U. S. 506 (1937)

http://supreme.justia.com/us/300/506/case.html

Inquiry into the hidden motives which may move Congress to exercise a
power constitutionally conferred upon it is beyond the competency of
courts.[snip] 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. [snip] Here, the annual tax of $200 is
productive of some revenue. [snip] Affirmed.

Which ties into another case Nigro v U.S.

NIGRO V. UNITED STATES, 276 U. S. 332 (1928)

http://supreme.justia.com/us/276/332/case.html#352

In interpreting the Act, we must assume that it is a taxing measure,
for otherwise it would be no law at all. If it is a mere act for the
purpose of regulating and restraining the purchase of the opiate and
other drugs, it is beyond the power of Congress, and must be regarded
as invalid, just as the Child Labor Act of Congress was held to be, in
Bailey, Collector v. Drexel Furniture Co., 259 U. S. 20. Everything in
the construction of § 2 must be regarded as directed toward the
collection of the taxes imposed in § 1 and the prevention of evasion
by persons subject to the tax. If the words cannot be read as
reasonably serving such a purpose, § 2 cannot be supported.



Both of which hinge on the Crucial case:

BAILEY v. DREXEL FURNITURE CO., 259 U.S. 20 (1922)

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=259&invol=20

Taxes are occasionally imposed in the discretion of the Legislature on
proper subjects with the primary motive of obtaining revenue from them
and with the incidental motive of discouraging them by making their
continuance onerous. They do not lose their character as taxes because
of the incidental motive. But there comes a time in the extension of
the penalizing features of the so-called tax when it loses its
character as such and becomes a mere penalty, with the characteristics
of regulation and punishment.


Out of a proper respect for the acts of a co-ordinate branch of the
government, this court has gone far to sustain taxing acts as such,
even though there has been ground for suspecting, from the weight of
the tax, it was intended to destroy its subject. But in the act before
[259 U.S. 20, 38] us the presumption of validity cannot prevail,
because the proof of the contrary is found on the very face of its
provisions.

The court said that the act could not be declared invalid just because
another motive than taxation, not shown on the face of the act, might
have contributed to its passage. This case does not militate against
the conclusion we have reached in respect to the law now before us.
The court, there, made manifest its view that the provisions of the
so-called taxing act must be naturally and reasonably adapted to the
collection of the tax and not solely to the achievement of some other
purpose plainly within state power.




More specifically with regard to Machine guns and legitimacy of 922(o)

Some of the circuit decisions

The intention of congress to ban machine guns was established in:

FARMER v. HIGGINS Cite as 907 F.2d 1041 (11th Cir. 1990)

http://www.constitution.org/2ll/bardwell/farmer_v_higgins.txt

Congress intended to change the law to prospectively preclude
the private possession of machine guns, and (2) that Congress
intended to limit lawful transfer and possession of machine
guns to instances authorized by the government for the benefit
of federal, state, or local governmental entities.
Consequently, in light of the plain language of section
922(o), as well as its legislative history, we hold that
section 922(o) prohibits the private possession of machine
guns not lawfully possessed prior to May 19, 1986.


U.S. v KURT 9th Circuit (possibly favorable language for 922(o) analysis, affirms Rock Island Decision in the 9th....

http://ftp.resource.org/courts.gov/c/F2/988/988.F2d.73.92-30194.92-30193.html



Counter Argument: 5th circuit

UNITED STATES of America, Plaintiff-Appellee,
v. Wendell ARDOIN, Defendant-Appellant. No. 93-4272

http://ftp.resource.org/courts.gov/c/F3/19/19.F3d.177.93-4272.html

Majority is Unfavorable but the DISSENT is F'ing Awesome.

And, the Majority would seem to not address the implied conflict with
Leary v U.S regarding 5th amendment right to not self incriminate.
(can be found here http://supreme.justia.com/us/395/6/ )

Also, the fact that the court did not address Farmer v Higgens should
give a great challenge mechanism.


Counter Argument: 4th Circuit

http://ftp.resource.org/courts.gov/c/F2/976/976.F2d.176.91-5298.html

976 F.2d 176
UNITED STATES of America, Plaintiff-Appellee,
v. Daniel Clement JONES, Defendant-Appellant.
No. 91-5298

Counter Argument: 9th Circuit:

http://www.justice.gov/osg/briefs/1996/w975207w.txt

JACK JOHN MILOJEVICH, PETITIONER v. UNITED STATES OF AMERICA

Earlier Counter Argument 9th Circuit:

Hunter v. United States, 73 F.3d 260 (9th Cir. 1996)

also relied on

United States v. Radon, 19 F.3d 177, 180 (5th Cir.)

United States v. Ross 9 F.3d 1182, 1194 (7th Cir. 1993)

But logic relies heavily on: Minor v. United
States, 396 U.S. 87, 97 (1969) (recognizing that "full and literal
compliance" with recordkeeping requirements of statute taxing
narcotics sales may leave seller with sole legal alternative of not
selling)

and on the statement that: Even when
making or transferring a machinegun is illegal under Section
9 22 (0) , those activities may continue to be taxed when they are
detected by law-enforcement officers. See United States v. Jones,
976 F.2d at 183-184.

Which could probably be taken out easily under the penalty v tax test of drexell..

AJAX22
01-04-2011, 11:01 AM
So we can probably tear this a new one...

The real question is on how to properly establish standing for a suit, and on what grounds can we bring suit.

I'm looking into the possibility of The ATF being established under the Executive powers, and specifically being a Ministerial Agency, not a discretionary agency, so refusing to allow the payment of a tax which the language of the 68 GCA/34 NFA seem to mandate acceptance of is acting outside of its purview. (but there may be nothing to that line of reasoning... its just something i'm 'spitballing'

This would be gounded in:

http://supreme.justia.com/us/71/475/case.html

SCOTUS, Mississippi v. Johnson, 71 U.S. 475 (1866), The Supreme Court's decision held that the President has two kinds of task to perform: ministerial and discretionary.

But I haven't finished analyzing it.

The mandated language of the 68 GCA is:

Sec. 5821. Making tax


(a) Rate.:There shall be levied, collected, and paid upon the making of a firearm a tax at the rate of $200 for each firearm made.

(b) By whom paid.:The tax imposed by subsection (a) of this section shall be paid by the person making the firearm.

(c) Payment.:The tax imposed by subsection (a) of this section shall be payable by the stamp prescribed for payment by the Secretary.

Back To Table of Contents


Sec. 5822. Making


No person shall make a firearm unless he has (a) filed with the Secretary a written application, in duplicate, to make and register the firearm on the form prescribed by the Secretary;(b) paid any tax payable on the making and such payment is evidenced by the proper stamp affixed to the original application form;(c) identified the firearm to be made in the application form in such manner as the Secretary may by regulations prescribe;(d) identified himself in the application form in such manner as the Secretary may by regulations prescribe, except that, if such person is an individual, the identification must include his fingerprints and his photograph;and (e) obtained the approval of the Secretary to make and register the firearm and the application form shows such approval.Applications shall be denied if the making or possession of the firearm would place the person making the firearm in violation of law.



Which doesn't appear to allow for agency discretion... (one of the arguments in ARDOIN was that the BATFE actually COULD collect the tax but chooses not to... :rolleyes:)

AJAX22
01-04-2011, 11:09 AM
Please note that MG manufacturing regulation under the 34 NFA is SPECIFICALLY intended by those who drafted it to only be allowed under the tax powers not the interstate commerce powers.

And strictly speaking it does not appear that until the 68 GCA that you actually had to apply in advance to manufacture one for personal/non interstate use.

And the 68 GCA would appear to create the mandate that collection of the tax is mandatory... (why else specify collection in that context?)

ptoguy2002
01-04-2011, 11:10 AM
It is interesting how back in 1934 folks were not opposed to "reasonable legislation." (page 36) All these years later, the bar for reasonable keeps going up and up and up, and they are still using the same catch phrase. It is nice to know that the NRA was opposed to at least parts of it back then, but sucks that they supported the reasonable legislation stance (knowing what we know now, which I suppose I can understand the position they had back then). And it really sucks that the current definition of a machine gun came from the NRA, although I'm sure it was better than the alternative.
Knowing what we know now, the NRA's stance back then should have been "what part of 'shall not be infringed' do you not understand." If they killed it back then with that position, we wouldn't be where we are now.

So.... how did we go from 12 shots being the magic number in 1934, to 10 rounds today?

formerTexan
01-04-2011, 11:15 AM
In my light reading so far, it would appear there are some circuit splits with regards to viability of charges under the IRC wrt making/transfers of post-86 mgs, but not 922(o) itself. Ardoin was charged with similar violations as in Rock Island.

It seems revisiting Stewart under 2A reasoning is a way forward, unless someone wants to risk a 10K fine + jail time and get charged on a single count of 922(o)...

AJAX22
01-04-2011, 11:18 AM
I also note that, originally, there was desire for the NFA to include handguns and any gun that can fire more than 12 times without reloading, without regard to semi- / full- auto. In fact the only thing that would be exempt would be traditional hunting rifles and shotguns (including traditional-style semi-autos like the Browning A5).

Also the $200 tax was pegged to approximately double the price of MGs. That would make them expensive but not out of reach for ordinary collectors or enthusiasts.

AG Homer Cummings thought that there was "universal" agreement that MGs (which include semi-autos with capacity over 12 rounds) had no place in private hands.

The NFA really was an attempt to pass the AWB 60 years before Clinton got into it. Fortunately most of the AWB aspects were stripped out. If they had not been, there would be no "black rifles" culture here, and no CCW because there would be no pistols.

AJAX, it's great you are working on all these issues, including getting the video of the Hughes Amendment voice vote. Your research isn't going to immediately launch legislative changes but it will make the rounds of the forums for a few years and build consensus among gun owners that we have been unfairly robbed of our rights to own things which should be legally available.

The problem with this stuff is that it is not presented in a clear and coherent way anywhere.

There have been a number of cases regarding this subject that I've read over the last 36 some odd hours of caffeine induced mania, where I wanted to scream at the defense/appeals writer that he was NOT citing the proper cases and that the case law created was not taking the right information into decision... Seriously ARDOIN.... god damn that case was mishandled... but the Dissent is a treatise on how to actually mount a successful attack... (according to one judge's opinion)

I'm seriously considering calling the dissenting judge and just asking him about his thoughts on the subject.

It has unfortunately become quite apparent that most statistically likely way for these issues to be raised is through a crummy criminal case (HIGHLY tainted usually with all sorts of B.S.) and that the guy filing the appeal will not be the 'cream of the crop' so to speak...

Anyway, We need to get more gun people working on this type of stuff....

I'm considering approaching all the local law schools to see if they want to craft an appeal to a hypothetical case and then tear it appart, then build a new one... If I can get a law professor on board we could have it done as an AMAZING class exercise.

Anyone have a constitutional law professor who they are on friendly terms with?

tuolumnejim
01-04-2011, 11:31 AM
Wow, what a cool historical find!

Who knew that such an act even passed. I'm glad no such laws are on the books now.



Well that was 80 years ago, so the emergency must have ended a long time ago and they repealed all these emergency measures, right?

(This is Lesson #483895 of the fact that "emergencies" never are, and "temporary" powers never are.)

Well do you remember how long it took to end the federal excise tax on long-distance service that paid for the Spanish-American War? Link (http://news.cnet.com/Telecom-tax-imposed-in-1898-finally-ends/2100-1037_3-6101004.html)

Temporary measures are rarely temporary. :censored:

Uriah02
01-04-2011, 12:06 PM
Interesting but a bit over my head.:confused:

ptoguy2002
01-04-2011, 12:16 PM
The 86 ban aside, can a state MG ban, like in Cali, be challenged because the state law prevents the fed government from collecting taxes?

Librarian
01-04-2011, 12:21 PM
The 86 ban aside, can a state MG ban, like in Cali, be challenged because the state law prevents the fed government from collecting taxes?

The state will claim it doesn't have a MG ban - it merely requires a permit per PC 12230 (http://codes.lp.findlaw.com/cacode/PEN/3/4/2/2/3/s12230).

AJAX22
01-04-2011, 12:34 PM
The state will claim it doesn't have a MG ban - it merely requires a permit per PC 12230 (http://codes.lp.findlaw.com/cacode/PEN/3/4/2/2/3/s12230).

Yep.... MG's are Legal in CA ;)

You just need a permit that they won't issue

AJAX22
01-04-2011, 12:57 PM
If anyone has a list of cases that cite Drexell I could use a bit of help on the research, I don't have the kind of access to the archives that legal professionals have.

Purple K
01-04-2011, 1:27 PM
Someone please forward this thread to Allen Gura.

Librarian
01-04-2011, 1:37 PM
If anyone has a list of cases that cite Drexell I could use a bit of help on the research, I don't have the kind of access to the archives that legal professionals have.

Findlaw will just give that to you; IIRC, signing up for findlaw is free.

Your post includes the link
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=259&invol=20

At the upper left is a link 'cases citing this case: Supreme Court', and that returns
1. FindLaw: MONTANA DEPT. OF REVENUE v. KURTH RANCH, ___ U.S. ___ (1994)
http://laws.findlaw.com/us/511/767.html
Highlight Hits

2. FindLaw: GOLDWATER v. CARTER , 444 U.S. 996 (1979)
http://laws.findlaw.com/us/444/996.html
Highlight Hits

3. FindLaw: PITTSBURGH v. ALCO PARKING CORP., 417 U.S. 369 (1974)
http://laws.findlaw.com/us/417/369.html
Highlight Hits

4. FindLaw: BOB JONES UNIVERSITY v. SIMON, 416 U.S. 725 (1974)
http://laws.findlaw.com/us/416/725.html
Highlight Hits

5. FindLaw: FLAST v. COHEN, 392 U.S. 83 (1968)
http://laws.findlaw.com/us/392/83.html
Highlight Hits

6. FindLaw: KENNEDY v. MENDOZA-MARTINEZ, 372 U.S. 144 (1963)
http://laws.findlaw.com/us/372/144.html
Highlight Hits

7. FindLaw: GRANVILLE-SMITH v. GRANVILLE-SMITH, 349 U.S. 1 (1955)
http://laws.findlaw.com/us/349/1.html
Highlight Hits

8. FindLaw: UNITED STATES v. RUMELY, 345 U.S. 41 (1953)
http://laws.findlaw.com/us/345/41.html
Highlight Hits

9. FindLaw: UNITED STATES v. KAHRIGER, 345 U.S. 22 (1953)
http://laws.findlaw.com/us/345/22.html
Highlight Hits

10. FindLaw: WATTS V. STATE OF IND. , 338 U.S. 49 (1949)
http://laws.findlaw.com/us/338/49.html

11. FindLaw: DANIEL V. FAMILY SECURITY LIFE INS. CO. , 336 U.S. 220 (1949)
http://laws.findlaw.com/us/336/220.html
Highlight Hits

12. FindLaw: RUTHERFORD FOOD CORP. V. MCCOMB , 331 U.S. 722 (1947)
http://laws.findlaw.com/us/331/722.html
Highlight Hits

13. FindLaw: WESTERN UNION TELEGRAPH CO. v. LENROOT, 323 U.S. 490 (1945)
http://laws.findlaw.com/us/323/490.html
Highlight Hits

14. FindLaw: CHAS. C. STEWARD MACH. CO. v. DAVIS, 301 U.S. 548 (1937)
http://laws.findlaw.com/us/301/548.html
Highlight Hits

15. FindLaw: CINCINNATI SOAP CO. v. U.S., 301 U.S. 308 (1937)
http://laws.findlaw.com/us/301/308.html
Highlight Hits

16. FindLaw: SONZINSKY V. UNITED STATES , 300 U.S. 506 (1937)
http://laws.findlaw.com/us/300/506.html
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17. FindLaw: CARTER v. CARTER COAL CO., 298 U.S. 238 (1936)
http://laws.findlaw.com/us/298/238.html
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18. FindLaw: U.S. v. BUTLER, 297 U.S. 1 (1936)
http://laws.findlaw.com/us/297/1.html
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19. FindLaw: U.S. v. CONSTANTINE, 296 U.S. 287 (1935)
http://laws.findlaw.com/us/296/287.html
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20. FindLaw: RAILROAD RETIREMENT BOARD v. ALTON R. CO., 295 U.S. 330 (1935)
http://laws.findlaw.com/us/295/330.html

21. FindLaw: FOX v. STANDARD OIL CO. OF NEW JERSEY, 294 U.S. 87 (1935)
http://laws.findlaw.com/us/294/87.html
Highlight Hits

22. FindLaw: A. MAGNANO CO. v. HAMILTON, 292 U.S. 40 (1934)
http://laws.findlaw.com/us/292/40.html
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23. FindLaw: CASEY v. U.S., 276 U.S. 413 (1928)
http://laws.findlaw.com/us/276/413.html
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24. FindLaw: J. W. HAMPTON, JR., & CO. v. U. S., 276 U.S. 394 (1928)
http://laws.findlaw.com/us/276/394.html
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25. FindLaw: NIGRO v. UNITED STATES, 276 U.S. 332 (1928)
http://laws.findlaw.com/us/276/332.html
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26. FindLaw: U.S. v. ONE FORD COUP%21E AUTO., 272 U.S. 321 (1926)
http://laws.findlaw.com/us/272/321.html
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27. FindLaw: TRUSLER v. CROOKS, 269 U.S. 475 (1926)
http://laws.findlaw.com/us/269/475.html
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28. FindLaw: U.S. v. DAUGHERTY, 269 U.S. 360 (1926)
http://laws.findlaw.com/us/269/360.html
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29. FindLaw: LINDER v. U.S., 268 U.S. 5 (1925)
http://laws.findlaw.com/us/268/5.html
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30. FindLaw: ST LOUIS COTTON COMPRESS CO. v. STATE OF ARKANSAS, 260 U.S. 346 (1922)
http://laws.findlaw.com/us/260/346.html

31. FindLaw: LIPKE v. LEDERER, 259 U.S. 557 (1922)
http://laws.findlaw.com/us/259/557.html
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32. FindLaw: HILL v. WALLACE, 259 U.S. 44 (1922)
http://laws.findlaw.com/us/259/44.html
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33. FindLaw: BAILEY v. DREXEL FURNITURE CO., 259 U.S. 20 (1922)
http://laws.findlaw.com/us/259/20.html
(Which is the case cited by all these prior 32)

AJAX22
01-04-2011, 1:43 PM
If anyone has a list of cases that cite Drexell I could use a bit of help on the research, I don't have the kind of access to the archives that legal professionals have.

I figured out how to use my school access to output a file through lexis with the supreme court cases.


https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B4xHVurgr6T4N2UxNTgxNzctMGVkZS00YTNmLThkMTA tYzEwNTg5MTAyZWM4&hl=en&authkey=CKnnk7kP

AJAX22
01-04-2011, 1:44 PM
Findlaw will just give that to you; IIRC, signing up for findlaw is free.


Thanks.... That would have been wayyyyy easier than screwing around with the remote terminal at the school library.

AJAX22
01-04-2011, 2:16 PM
There may be a somewhat strong 5th amendment argument... probably using parts of Leary, but Marchetti looks like it bears further investigation.

a statute imposing a tax on unlawful conduct may be invalid because its reporting requirements compel taxpayers to incriminate themselves. Marchetti v. United States, 390 U.S. 39 (1968).

AJAX22
01-04-2011, 2:32 PM
Also one thought could be to obtain an 02 SOT, make a machine gun, then turn over the licence, (requiring the machine gun to be destroyed) and arguing that 922(o) deprives the individual of property (the machine gun) without due process since there is no way that they can pay the mandated tax......

that might give you standing....

wildhawker
01-04-2011, 2:34 PM
Someone please forward this thread to Allen Gura.

Alan is very aware of the legal and constitutional issues surrounding these matters. There's a reason he's not bringing a MG case anytime soon.

Mstrty
01-04-2011, 2:42 PM
Mr. Cummings What are you afraid of?

Um. It may be unconstitutional.:D

formerTexan
01-04-2011, 2:45 PM
Also one thought could be to obtain an 02 SOT, make a machine gun, then turn over the licence, (requiring the machine gun to be destroyed) and arguing that 922(o) deprives the individual of property (the machine gun) without due process since there is no way that they can pay the mandated tax......

that might give you standing....

Not quite, a 02SOT going out of business may transfer "post-samples" to another SOT without the usual requirement of demo letter(s) from an eligible agency. I suspect this is the gov's way of weaseling out deprivation of property without due process.

Also, an 02SOT or a class 3 dealer may keep any pre-86 dealer samples (mostly imported mgs post-68) after relinquishing their SOT.

Gray Peterson
01-04-2011, 2:45 PM
Alan is very aware of the legal and constitutional issues surrounding these matters. There's a reason he's not bringing a MG case anytime soon.

"I will be there on the turn of the tide. On the dawn of the 5th day, look to the east...." -Gandalf, The Two Towers

We are not on the 5th day. We're still on the 2nd day.

Folks, we cannot win an MG case at all until we eliminate the AWB's.

navyinrwanda
01-04-2011, 2:54 PM
If anyone has a list of cases that cite Drexell I could use a bit of help on the research, I don't have the kind of access to the archives that legal professionals have.

Although captioned as Bailey v. Drexel Furniture Co., 259 US 20 (1922) (http://scholar.google.com/scholar_case?case=3539801573945703473), this case is usually referred to either as the Child Labor Tax Case or simply Bailey.

However, as you have noted, its finding that “there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment” was repudiated by the New Deal court in Sonzinsky v. United States, 300 US 506 (1937) (http://scholar.google.com/scholar_case?case=16341214597245547111), which was also directly on point upholding the constitutionality of the NFA tax.

Along with US v. Kahriger, 345 US 22 (1953) (http://scholar.google.com/scholar_case?case=16884381988853915279), this formed a line of cases that reaffirmed (among other things) the principle that the courts do not look at congressional intent when a challenged act exercises an enumerated power (in this case, the tax power).

AJAX22
01-04-2011, 2:57 PM
Not quite, a 02SOT going out of business may transfer "post-samples" to another SOT without the usual requirement of demo letter(s) from an eligible agency. I suspect this is the gov's way of weaseling out deprivation of property without due process.

Also, an 02SOT or a class 3 dealer may keep any pre-86 dealer samples (mostly imported mgs post-68) after relinquishing their SOT.

Hrmm..... but you still don't have the option of keeping it.... (pre 86 samples not withstanding)... and if you are unable to sell it, you would have to torch it, or surrender it.....

that does seem rather due process ish...

On a side note, I've heard rumors about the registry being added to post 86 (some CIA guy came back from out of the country and was allowed to register some things or something?...) any substance to that?

formerTexan
01-04-2011, 3:07 PM
Hrmm..... but you still don't have the option of keeping it.... (pre 86 samples not withstanding)... and if you are unable to sell it, you would have to torch it, or surrender it.....

that does seem rather due process ish...

On a side note, I've heard rumors about the registry being added to post 86 (some CIA guy came back from out of the country and was allowed to register some things or something?...) any substance to that?

No, you don't have the option of keeping it. Practically, what happens is that the receiver is cut per ATF specs, and the parts then can be sold as a parts kit (think HK416s and what happens to the uppers after the "demo"). I think due process may still be a good angle, but there are arguments to the contrary, like the SOT knew this is how it goes when they relinquish their SOT, etc. I'm not familiar with how the law treats a case where someone knowingly does something, and doesn't like the consequences due to law/statutes/regulations.

There has been anecdotes about stuff added post-86, possibly by court order, but maybe a FOIA is in order for a count of post-86 mg registrations/transfers to non-gov entities. I don't think we can have the forms themselves as they are considered tax forms.

command_liner
01-04-2011, 3:26 PM
Please note that MG manufacturing regulation under the 34 NFA is SPECIFICALLY intended by those who drafted it to only be allowed under the tax powers not the interstate commerce powers.

And strictly speaking it does not appear that until the 68 GCA that you actually had to apply in advance to manufacture one for personal/non interstate use.

And the 68 GCA would appear to create the mandate that collection of the tax is mandatory... (why else specify collection in that context?)

Yes, of course. That is why the Congressional Record was used as direct
evidence and testimony (of a sort) in the Rock Island case.

The reasoning here is as plain as day. I have pointed it out a few times,
but the obvious truth is sometimes hard to understand. The 2nd Amendment
was passed after, and thus supersedes, the Commerce Clause. There is
no logical way to claim inferior, older, superseded law is still governs.
The Commerce Clause might govern some things, but it shall not infringe
on the right to keep and bear arms. The people that wrote the Constitution
were not ambiguous on this issue. You can read their words on the
subject in any number of places.

This was plainly obvious in 1934, just as it was in 1794, and is obvious today.
Commerce Clause cannot apply to 2nd Amendment arms.

AJAX22
01-04-2011, 5:47 PM
Alrighty....

How about this scenario for a chalange:

A corporation or trust leases a mailbox at a mailboxes etc.

One of the corporate officers orders a Sten Parts kit, another orders an 80% receiver.

Under the BATFE's 'constructive posession' rules there is now a machine gun sitting in their mailbox...

However under the common carrier exemptions until it is picked up (by my reading of the law) no one is guilty of possession.

They corporation contacts the BATFE through a lawyer to attempt to register their assets to be in compliance with the law, they are denied and arrange for the surrender of the constructive machine gun. then they sue for its value...

Probably a very bad idea (I think conspiracy to violate the NFA or GCA would apply)

there has to be something with constructive possession... legally acquired assets that when possessed together require you to pay a tax that cannot be collected.

I dunno, Ive been looking at this stuff too long...

My mind is fried.

formerTexan
01-04-2011, 9:21 PM
I'm sure many minds been fried over this, so don't feel too bad.
However, I think a different angle is simply the cut off date of May 19, 1986. How about arbitrary and capricious? Or unfair to those who were unable to submit a Form 1 because they weren't born yet? Or was not 18 or 21 at the time?

santacruzstefan
01-04-2011, 9:33 PM
there has to be something with constructive possession... legally acquired assets that when possessed together require you to pay a tax that cannot be collected.


I like the sound of it... very interesting. I suppose that once more of the dominoes begin to fall, they will fall rapidly. But I guess it isn't quite time to touch them all off yet. I agree with wildhawker, though, tackling the AWB is the first step in this direction, and also perhaps having one of the liberal Justices retire/ die with a supportive executive in power.

AJAX22
01-05-2011, 10:54 AM
Constructive possession would prevent an SOT who went out of business from keeping even the cut up parts of the machine gun if he had a semi automatic version of the same gun... it would also prevent him from keeping spare parts for his machine gun if he had a semi auto version of the same gun...

Surrender or sale would really be the only viable option.... and if you contacted the ATF as an SOT02, and informed them that you were not going to be engaging in buisness... they would likely REVOKE your 02... and give you a very short time frame (if any) to get rid of any taxable item.

You could 'attempt' to transfer the gun to yourself on a form 1, form 4 or possibly form 5? but they would deny you.

tabrisnet
01-05-2011, 11:42 AM
Sue for value? What is the value? If it's 2k or so, the government might just give you your 2Gs (cheaper than having their lawyers defend)... Hardly the win we're asking for.

Alternately, if their value is 100k or more... (still in the category of 'paying you is cheaper' vs following through on the appeal[s]), then we're talking about a very large amount of money required in order to pull off the lawsuit. We'd need to find a collector who has that kind of dough to lose. Or maybe we can consider the ATF to be sufficiently (for lack of a better word choice) principled to take on the case regardless of the money involved.

Gray Peterson
01-05-2011, 11:50 AM
It would appear that after US Vs Rock Island, the US AG/DOJ learned their lesson and charged under 922(o) in US Vs Stewart, which was upheld on remand after Raich (however, under pre-Heller logic, relying on Silveira in dismissing Stewart's 2A claims). I don't know if Stewart can appeal again, now that his 2A claims can be re-examined due to Heller/McDonald.

Right now, we have cases invalidating Internal Revenue Code regarding taxation/registration of MGs, in light of 922(o). But what to do about 922(o) itself?

Exactly. Which choice do we have:

IRS Can't tax MG's, but we still can't possess post-86 MG's.
IRS can tax MG's, but we can possess post-86 MG's.

I'll take option 2....for now....

navyinrwanda
01-05-2011, 1:01 PM
Right now, we have cases invalidating Internal Revenue Code regarding taxation/registration of MGs, in light of 922(o). But what to do about 922(o) itself?
Not really.

Yes, Congress can't tax something that's completely prohibited. But that doesn't undercut their virtually unlimited power to levy excise taxes. So there isn't any precedent “invalidating” machine gun taxation.

And the only viable legal challenge against USC § 922(o) would be one that achieved a holding that machine guns fell somewhere inside of the historical right to keep and bear arms, something that was tacitly rejected in Heller. Which pretty much leaves any changes to 922(o) solely within the political arena...

AJAX22
01-05-2011, 1:16 PM
Most of the cases in our favor do not seem to suggest that congress cannot tax machine guns or that congress cannot ban machine guns, rather that the way the tax act was amended to prohibit tax collection while imposing criminal penalties for failure to pay the tax was improper.

They could very well pass a ban which would stand up to almost any challenge (that was based on a non 2A argument) but the law as it stands is flawed to a degree that may allow for it to be challenged... IF you could obtain proper standing, and IF you could tailor a split within the courts on 4th amendment or 5th amendment grounds... you might be able to get it to go away briefly.

Congress could always pass a ban correctly the following day, but you would get a brief window with an open registry.

navyinrwanda
01-05-2011, 2:09 PM
They could very well pass a ban which would stand up to almost any challenge (that was based on a non 2A argument) but the law as it stands is flawed to a degree that may allow for it to be challenged... IF you could obtain proper standing, and IF you could tailor a split within the courts on 4th amendment or 5th amendment grounds... you might be able to get it to go away briefly.

How is § 922(o) flawed in a way that could be challenged on non-2nd Amendment grounds?

formerTexan
01-05-2011, 2:15 PM
During the orals in Heller, wasn't something said about M4s/M16s as being the "most protected" arm in current times?

ke6guj
01-05-2011, 5:07 PM
How is § 922(o) flawed in a way that could be challenged on non-2nd Amendment grounds?

the way it was previously challenged. if you require a tax be paid in order to excercise a right, you can't then refuse to accept payment of the tax.

It would be like i they passed a new law that prohibited tax stamps for alcohol or tobacco from being issued, and then prosecuted for not having said tax stamp.

navyinrwanda
01-05-2011, 7:14 PM
the way it was previously challenged. if you require a tax be paid in order to excercise a right, you can't then refuse to accept payment of the tax.

It would be like i they passed a new law that prohibited tax stamps for alcohol or tobacco from being issued, and then prosecuted for not having said tax stamp.
I think the analog would be attempting to prosecute someone for the failure to pay taxes due on the possession (or transfer or manufacture) of alcohol and tobacco after their possession etc. had been prohibited by a subsequent law.

In both situations (alcohol, tobacco and/or machine guns), the tax has been obviated by the subsequent prohibition. But the commodities are still prohibited, and that prohibition can be legally enforced even though collection of the tax cannot (be enforced).

Attaching a constitutional right to the analogy brings any challenge to § 922(o) squarely into Second Amendment territory.

AJAX22
01-05-2011, 8:55 PM
I think the analog would be attempting to prosecute someone for the failure to pay taxes due on the possession (or transfer or manufacture) of alcohol and tobacco after their possession etc. had been prohibited by a subsequent law.

In both situations (alcohol, tobacco and/or machine guns), the tax has been obviated by the subsequent prohibition. But the commodities are still prohibited, and that prohibition can be legally enforced even though collection of the tax cannot (be enforced).

Attaching a constitutional right to the analogy brings any challenge to § 922(o) squarely into Second Amendment territory.

Well if you confiscate the property it can be a 4th ammendment seizure issue, or you could make a 5th amendment argument (ala leary v U.S.) that requiring you to pay the tax on a prohibited item violates your right to not incriminate yourself.

It is important that we come up with a clear and concise non 2A argument and course of action for proceeding on this.

navyinrwanda
01-05-2011, 11:03 PM
Well if you confiscate the property it can be a 4th ammendment seizure issue, or you could make a 5th amendment argument (ala leary v U.S.) that requiring you to pay the tax on a prohibited item violates your right to not incriminate yourself.

It is important that we come up with a clear and concise non 2A argument and course of action for proceeding on this.
There is no tax collected, hence no confiscation nor self-incrimination. All machine gun prosecutions are now brought as violations of § 922(o).

And there just isn't any non-2A rationale for challenging § 922(o). So any change will come either from a frontal assault (successfully arguing that machine guns enjoy some level of Second Amendment protection) or through Congress with the help of NRA lobbying. Sadly, neither of these will be happening soon.

AJAX22
01-06-2011, 6:46 AM
There is no tax collected, hence no confiscation nor self-incrimination. All machine gun prosecutions are now brought as violations of § 922(o).

And there just isn't any non-2A rationale for challenging § 922(o). So any change will come either from a frontal assault (successfully arguing that machine guns enjoy some level of Second Amendment protection) or through Congress with the help of NRA lobbying. Sadly, neither of these will be happening soon.

There doesn't appear to be any exemption (under the Farmer v higgens reasoning) for an SOT02 to actually make machine guns under 922o.. at least not without a letter from a division of the U.S. gov authorizing it.

If the division of the US gov that authorizes SOT02's to posess MG's is just the BATFE's standard licencing process, it would seem to run counter to farmer v higgens

The law is fairly clear and established with regard to enforcing 922o against persons who do not posess the SOT02, but 02sot holders don't really appear to be exempted under a narrow reading of 922o, at least not under the farmer logic.

I could be wrong.. but its something to look at...

navyinrwanda
01-06-2011, 12:34 PM
There doesn't appear to be any exemption (under the Farmer v higgens reasoning) for an SOT02 to actually make machine guns under 922o.. at least not without a letter from a division of the U.S. gov authorizing it.

If the division of the US gov that authorizes SOT02's to posess MG's is just the BATFE's standard licencing process, it would seem to run counter to farmer v higgens

The law is fairly clear and established with regard to enforcing 922o against persons who do not posess the SOT02, but 02sot holders don't really appear to be exempted under a narrow reading of 922o, at least not under the farmer logic.

I could be wrong.. but its something to look at...

Manufacturers of machineguns (and all NFA/Title II firearms) operate under Chapter 53 of the Internal Revenue Code. There are multiple provisions of this section that interact to provide for the legal manufacture of machineguns. For example, there is an explicit exemption from tax payments at IRC § 5851(a):

Any person required to pay special (occupational) tax under section 5801 shall be relieved from payment of that tax if he establishes to the satisfaction of the Secretary that his business is conducted exclusively with, or on behalf of, the United States or any department, independent establishment, or agency thereof. The Secretary may relieve any person manufacturing firearms for, or on behalf of, the United States from compliance with any provision of this chapter in the conduct of such business.


IRC § 5801 is the code section about manufacturers. Note that “manufacturing” is not the same thing as “making” (See IRC § 5845(i) vs. § 5845(m)).

And USC § 922(o)(2)(A) is an explicit exemption to the blanket prohibition on machinegun possession or transfer. So there are actually multiple statutory exemptions that allow private individuals to manufacture machineguns for use by governmental entities and to transfer those machineguns to governmental entities.

Farmer v. Higgins, 907 F.2d 1041, 1045 (11th Cir. 1990) (http://scholar.google.com/scholar_case?case=15259938584023232827) established that § 922(o) actually prohibited the possession of machineguns except for two specific exceptions. I'm not sure where there's any “reasoning” in this decision that would effect these various exemptions and exceptions.

POLICESTATE
01-06-2011, 3:20 PM
I foresee that one day we will be the free-est people in the world according to the COTUS but the most enslaved under IRS regulations, in other words, if the Internal Revenue Code can be used to regulate property of one type then it can also be used to regulate nearly all types of property.

By controlling all types of property you can control people ultimately.

Too bad the Internal Revenue Code itself cannot be found to be unconstitutional.

One day it we will have to make a choice between paying a tax to go to the grocery store in our own car or pay a tax to use the same car to get to work, and eat out of the vending machine... which of course will have its own tax.

Not tax, though, it would be a... usage fee? Yeah, usage fees for using your property.

formerTexan
01-06-2011, 3:28 PM
RE: exemptions for making post-86 mgs for SOT 02s
There is one more exemption in the CFR (in addition to the gov't related ones), and that is invention. Without that one, the TDI KRISS as an example, would've never existed.