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National 2nd Amend. Political & Legal Discussion Discuss national gun rights and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 06-12-2020, 6:25 PM
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Default 11th Circuit to rule on NFA

Interesting case

https://www.courthousenews.com/panel...oting-plotter/

JACKSONVILLE, Fla. (CN) — The attorney for a man accused of plotting to shoot up a Florida mosque asked an 11th Circuit panel Friday to throw out a related firearms conviction.

If successful, the appeal brought by Bernandino Bolatete, convicted in 2018 of possessing an unregistered silencer, could upend portions of a gun control law passed more than 80 years ago.

Bolatete, a 72-year-old green card holder from the Philippines, was the focus of a month-long investigation by the Jacksonville Sheriff’s Office and federal authorities in 2017, during which Bolatete told an undercover detective about his plan to attack the Islamic Center of Northeast Florida during worship services.


The Elbert P. Tuttle U.S. Courthouse in Atlanta, home of the 11th Circuit Court of Appeals. (Photo via Eoghanacht/Wikipedia Commons)
According to court documents, Bolatete visited gun ranges with the undercover detective where he denigrated Islam and negotiated gun purchases.

Bolatete believed he was terminally ill and planned to attack the mosque and die by “suicide by cop,” court transcripts of the undercover detective’s recordings show.

“We will try a Christian doing terroristic act this time to the Muslims,” Bolatete told the detective. “They doing it all the time, you know?”

“Go up to the tower and start shooting,” he said, laughing. “It will be — it will be great, right?”

After the detective sold an unregistered silencer to Bolatete for $100, FBI agents made an arrest and searched his home and car, uncovering 11 guns and more than 2,000 rounds of ammunition.

After a jury found him guilty of possessing an unregistered silencer in 2018, U.S. District Judge Harvey Schlesinger sentenced him to five years in federal prison. The law allows for up to 10 years.

Passed in 1934, the National Firearms Act mandates certain types of firearms and accessories, such as machine guns, explosives and silencers, must be registered with the federal government. In addition, firearm makers and dealers must pay a $200 tax stamp to the Bureau of Alcohol, Tobacco and Firearms – an amount that has stayed the same since the law’s passage.

Gun stores licensed to sell silencers will typically submit the buyer’s registration application with the $200 fee and release the device after approval by the ATF. Similarly, the ATF provides private sellers with a form to sign and send with payment before the seller hands over the silencer. The process can take up to a year.

During Thursday’s oral arguments before the 11th Circuit, held via teleconference due to the Covid-19 pandemic, public defender Lynn Bailey made her case on why Bolatete’s conviction exceeds Congress’s power to tax and violates the Second Amendment by requiring him to pay for a constitutionally protected right.

Bailey questioned why Bolatete, the buyer of the unregistered silencer, had a duty to register the device and purchase the tax stamp, and not the seller – in this case, the undercover detective.

“It makes more sense to me for the maker or transferor” to pay the tax, Bailey told the three-judge panel of the Atlanta-based appeals court. “They are the ones responsible for paying the tax … But here you are punishing the transferee with 10 years in prison ostensibly for a tax that someone else is required to pay, and he doesn’t know whether it’s paid or not.”

U.S. Circuit Judge Ed Carnes interjected.

“We get taxed all the time by things we don’t know during transactions,” the Ronald Reagan appointee said. “But nobody’s ever suggested that means it’s an invalid exercise of the taxing power.”

He also noted the person receiving the firearm “could determine whether the tax was paid or not by asking the transferor, couldn’t he?”

Bailey argued the responsibility should not lie on the buyer.

“What we’re really arguing here is the punishment of the downstream possessor, this downstream transferee, does not aid with any revenue purpose,” she said. “This is a punitive statute and not a taxing statute … There is something offensive about incentivizing imprisoning the transferee and shifting the burden of knowledge, the burden to inquire about the tax stamp, to the transferee.”

Even if Bolatete knew the silencer was not registered, she said, he cannot pay the tax to legitimize the purchase.

Justice Department attorney Peter Sholl piggy-backed on the judges’ comments about the responsibility of Bolatete to register the silencer and pay the tax.

U.S. Circuit Judge Elizabeth Branch interjected.

“Here you are faced with a defendant who did not have the option of paying the tax to avoid implicating the statute,” the Donald Trump appointee said.

Sholl asserted Bolatete never had the intention of registering the silencer.

“He asked for an unregistered silencer,” Sholl said, referencing undercover recordings. “The concept of an unregistered silencer initially came from Mr. Bolatete.”

U.S. Circuit Judge Robert Luck, another Trump appointee, jumped in.

“In other words, his defense was not that, ‘Oh if you hadn’t arrested me, I was on my way to paying the registration fee and get a stamp on this thing,’” Luck said. “His argument was, ‘I was entrapped into doing exactly what I did.’”

“Correct,” Sholl replied.

Luck suggested the appellate panel might not be able to reverse the conviction based on prior case law. Two years ago, the 10th Circuit ruled in a similar case that the Second Amendment does not apply to silencers. The Supreme Court later declined to take up the case.

“I’m having trouble getting around that we’re bound by our precedent on this,” Luck said. “Maybe we shouldn’t be bound and maybe the en banc court or the Supreme Court should take this issue up. But for a panel member I’m having trouble trying to get around what the law is that governs my decision making.”
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Old 06-12-2020, 7:25 PM
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should make an interesting moral issue when considering responsibility of each party involved and has the government been wrong all these years? This should be a fascinating case to follow just for the arguments if they seriously take up all the issues not to mention whether NFA has outlived it usefulness in it's present form.
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Old 06-12-2020, 7:58 PM
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That was interesting. Thanks for sharing that article.
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Old 06-12-2020, 8:47 PM
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Originally Posted by warbird View Post
should make an interesting moral issue when considering responsibility of each party involved and has the government been wrong all these years? This should be a fascinating case to follow just for the arguments if they seriously take up all the issues not to mention whether NFA has outlived it usefulness in it's present form.
The defendant's lawyer was right though. The tax is purely a mechanism for punitive action. In 1934 you could buy a car for $200. Imagine a $20,000 tax now. They used the mechanism of taxation because they couldn't think of any other way to legally discourage NFA ownership.
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Old 06-12-2020, 8:55 PM
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I didn't understand much of that. Anyone break it down barney style what they are arguing?
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Old 06-12-2020, 10:18 PM
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I didn't understand much of that. Anyone break it down barney style what they are arguing?
I think what his lawyer is arguing is that for everything else you buy, the seller collects the tax from you at the time of sale and then gives that tax money to the appropriate Gov agency. You don't buy a loaf of bread and then send a check for $o.25 to the state, buyer a suppressor should be the same and his client shouldn't be penalized for expecting the process to be the same as buying anything else.
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Old 06-12-2020, 10:52 PM
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Originally Posted by rero360 View Post
I think what his lawyer is arguing is that for everything else you buy, the seller collects the tax from you at the time of sale and then gives that tax money to the appropriate Gov agency. You don't buy a loaf of bread and then send a check for $o.25 to the state, buyer a suppressor should be the same and his client shouldn't be penalized for expecting the process to be the same as buying anything else.
That's what I read. Along with the MAJOR GAFF that the DOJ attorney, "Scholl" made regarding "ENTRAPMENT".

Quote:
U.S. Circuit Judge Robert Luck, another Trump appointee, jumped in.

“In other words, his defense was not that, ‘Oh if you hadn’t arrested me, I was on my way to paying the registration fee and get a stamp on this thing,’” Luck said. “His argument was, ‘I was entrapped into doing exactly what I did.’”

“Correct,” Sholl replied.
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Old 06-12-2020, 10:55 PM
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If they determine that the seller should pay the tax then all I see is the price of silencers going up by $200.
What they just need to say is the stamp is illegal, and now, null and void.
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Old 06-12-2020, 11:01 PM
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If they determine that the seller should pay the tax then all I see is the price of silencers going up by $200.
What they just need to say is the stamp is illegal, and now, null and void.
Would not help us in California. What they need to say is that it is protected by 2A and in common use for lawful purposes. Then we would need an another decision...
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Old 06-12-2020, 11:16 PM
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They used the mechanism of taxation because they couldn't think of any other way to legally discourage NFA ownership.
I fail to see how it is "legal" to require someone to pay a tax in order to exercise a constitutional right. How that works when a poll tax isn't legal confuses me...
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Old 06-13-2020, 10:48 AM
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I fail to see how it is "legal" to require someone to pay a tax in order to exercise a constitutional right. How that works when a poll tax isn't legal confuses me...
Spot on
Its kind of like the Lautenberg amendment that put a felony penalty (loss of gun rights) on a misdemeanor and then applied it to ALL cases including those that happened before the amendment went into effect.
Ex post facto law and it still stands to this day.
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Old 06-13-2020, 11:04 AM
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Spot on
Its kind of like the Lautenberg amendment that put a felony penalty (loss of gun rights) on a misdemeanor and then applied it to ALL cases including those that happened before the amendment went into effect.
Ex post facto law and it still stands to this day.
It has other issues as well. What authority is there to impose criminal punishment extra-judicially (via legislation rather than via the courts)? If anything, I could see it argued that such an act was a bill of attainder, which is prohibited, and also a violation of the 5th Amendment (since due process requires a judicial hearing for the imposition of punishment of this sort), as it applied to cases which had been concluded (same with similar provisions of the GCA). What authority does the Federal government have to impose punishments in cases that are not within their jurisdiction (State and local)? I don't see anything in the Constitution about that, nor does it seem to be necessary and proper to any enumerated power.

Technically not ex post facto, as it does not punish firearms possession before the law took effect.
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Old 06-13-2020, 12:01 PM
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The more specific question ought to be precisely where in our Constitution does the Federal Gov't derive it's claim to police power of ANY sort!
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Old 06-13-2020, 12:27 PM
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The more specific question ought to be precisely where in our Constitution does the Federal Gov't derive it's claim to police power of ANY sort!



The 10th Amendment - the FORGOTTEN right.
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Old 06-13-2020, 11:35 PM
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Originally Posted by NoHeavyHitter View Post
I fail to see how it is "legal" to require someone to pay a tax in order to exercise a constitutional right. How that works when a poll tax isn't legal confuses me...

Exactly. Leeches voting cause 10x more damage than any gun ever will. If the left will never stop the fight against the second then we will need to start imposing strict regulations on who can vote if you're not a net tax payer then you 100% do not get to vote. You're stealing others money to benefit yourself and since it's often thousand of dollar and by force it should be a felony
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Old 06-15-2020, 9:10 PM
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Good luck on this one.
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Old 06-22-2020, 9:42 PM
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Oral argument audio
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Old 06-29-2020, 10:47 PM
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It has other issues as well. What authority is there to impose criminal punishment extra-judicially (via legislation rather than via the courts)? If anything, I could see it argued that such an act was a bill of attainder, which is prohibited, and also a violation of the 5th Amendment (since due process requires a judicial hearing for the imposition of punishment of this sort), as it applied to cases which had been concluded (same with similar provisions of the GCA). What authority does the Federal government have to impose punishments in cases that are not within their jurisdiction (State and local)? I don't see anything in the Constitution about that, nor does it seem to be necessary and proper to any enumerated power.

Technically not ex post facto, as it does not punish firearms possession before the law took effect.
No
It was retroactive
From a couple law reviews:

Quote:
Third, opponents criticize the Lautenberg Law as a violation of the Ex Post Facto Clause of the U.S. Constitution. Article 1, Section 8 of the Constitution states that ‘‘no bill attainder or ex post facto Law shall be passed.’’ Critics argue that the Lautenberg Law violates the Ex Post Facto Clause because it prohibits the possession of a firearm by a person convicted of a domestic violence misdemeanor even if the criminal act occurred prior to the enactment of the Lautenberg Law.
Quote:
Another thing that this amendment did was to violate the Constitution, specifically Article 1, Section 9, Article 3, “No bill of attainder or ex post facto law shall be passed.” The term “ex post facto” is Latin for “after the fact,” where a law is passed today that criminalizes an action committed before the law became effective and people are subsequently punished under that law.
So, if back in the 80's you copped a plea because you didn't have the money to fight a dubious DV beef You get punished YEARS later with the loss of your Second Amendment rights A felony penalty for a misdemeanor beef.
That's Ex Post Facto
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Old 06-30-2020, 3:03 PM
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Originally Posted by NoHeavyHitter View Post
I fail to see how it is "legal" to require someone to pay a tax in order to exercise a constitutional right. How that works when a poll tax isn't legal confuses me...
You are not being taxed to exercise a right, you are paying an additional tax to purchase specified weapons. As it is, when you buy a firearm or ammunition, you pay sales tax, and there are additional taxes built into the price of all guns and ammunition to support conservation. As reported in Miller v. US, as I recall, it is reported that the US Attorney General testified before Congress that he believed that the NFA did not violate the 2A because it was just a tax on the purchase of specified arms.
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Old 07-02-2020, 5:08 AM
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Any hear of the stamp tax and its repercussions?
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