Last minute suppressor vote

[HandgunHTR]

All of the above is fine by me. I just think that one can not get a negative inference from Sozinsky. It said the government was using a permissible taxing power. That's it. It doesn't mean in absence of a tax (assuming for the sake of argument that $0 = no tax) means the law is not constitutional. And the fact that the BBB changes to the NFA were part of a much broader set of law enactments and changes, might support the position of the government that the change to the NFA was permissible/lawful/constitutional.

Just to add to what @joshs wrote above, I am not specifically saying there is a negative inference from Sonzinsky. What I am saying is that the Court was pretty clear as to their opinion of what the NFA is. It is a tax.

The Court determined that Congress was within its taxing power with the NFA as a direct response to this portion of Sozinsky's petition:
A mere reading of the National Firearms Act discloses that it was enacted for the purpose of regulating or suppressing traffic in the firearms described in the Act; that it was not enacted for the purpose of collecting any taxes; that it was passed as a police measure, as an aid to local law enforcement, and not as a revenue law. While it is true that, where the law merely imposes the tax without disclosing the indirect purpose of its imposition, the courts might hesitate to declare the law unconstitutional, on the other hand, if the real purpose of the law is disclosed on its face to be a purpose that invades the police powers reserved to the individual States, the courts should not hesitate to declare the Act an unconstitutional usurpation by the Federal Government of powers reserved to the States by the Tenth Amendment.

In the opinion of the Court, which was written by Justice Stone, he wrote:
On its face it is only a taxing measure, and we are asked to say that the tax, by virtue of its deterrent effect on the activities taxed, operates as a regulation which is beyond the congressional power.
So, he acknowledged the petitioner's statement that the NFA was regulatory and not revenue generating in nature. He then goes on to add, near the end of the opinion:
Here the annual tax of $200 is productive of some revenue. We are not free to speculate as to the motives which moved Congress to impose it, or as to the extent to which it may operate to restrict the activities taxed. As it is not attended by an offensive regulation, and since it operates as a tax, it is within the national taxing power.

So, from that we can conclude that since it generates revenue as a tax, that the Law is not regulatory in nature and is within Congress' taxing authority.

What does it mean now that there is no tax? That is the question. The petitioners will most likely argue that since there is no tax on these items, the purpose of the requirements of the NFA for them is purely regulatory and therefore an infringement of the 2nd Amendment.
The Court will have to determine if that is the case or not.

 

[fwafwow]

Thanks for geeking out on this topic.

Yes, one of the ways to attack the argument being made that Congress lacks the power to create a tax that doesn't generate revenue is just to justify the NFA requirements under the Commerce Clause. That wasn't done at the time of Sonzinsky becasue it predated the biggest modern Commerce Clause case by a few years (Wickard v. Filburn).

I am still not convinced that reducing the tax to $0 means that they are not within the taxing power. The citation in the GOA complaint saying that "no revenue = no taxing power" is pretty weak.

So, one could argue that the NFA is otherwise justified under the modern Commerce Clause precedents, but there is a major problem with that argument. The Court has generally required a "jurisdictional hook" for Congress to use its commerce power. This is why almost all federal gun statutes that rely on the commerce power apply only to firearms that have been "shipped or transported in interstate or foreign commerce." When a federal gun law lacked this hook, the Court struck it down: https://www.oyez.org/cases/1994/93-1260

I will look at that case, but I think the lack of commerce clause power in that instance was because the possession at a school was not something related to interstate commerce, and maybe the purchase, transfer or manufacture of NFA items is different - as each of those is something that could reasonably be seen as part of interstate commerce. But yes, this is a much more valid argument IMHO, especially if such a "shipped or transported" recitation is required in the law. (I'm not sure that it is, but even if not, this is a better line of argument to me.)

The NFA lacks a jurisdictional hook becasue Congress relied on the tax power to enact it.

I hope you are right.

 

[fwafwow]

Just to add to what @joshs wrote above, I am not specifically saying there is a negative inference from Sonzinsky. What I am saying is that the Court was pretty clear as to their opinion of what the NFA is. It is a tax.

The Court determined that Congress was within its taxing power with the NFA as a direct response to this portion of Sozinsky's petition:
A mere reading of the National Firearms Act discloses that it was enacted for the purpose of regulating or suppressing traffic in the firearms described in the Act; that it was not enacted for the purpose of collecting any taxes; that it was passed as a police measure, as an aid to local law enforcement, and not as a revenue law. While it is true that, where the law merely imposes the tax without disclosing the indirect purpose of its imposition, the courts might hesitate to declare the law unconstitutional, on the other hand, if the real purpose of the law is disclosed on its face to be a purpose that invades the police powers reserved to the individual States, the courts should not hesitate to declare the Act an unconstitutional usurpation by the Federal Government of powers reserved to the States by the Tenth Amendment.

In the opinion of the Court, which was written by Justice Stone, he wrote:
On its face it is only a taxing measure, and we are asked to say that the tax, by virtue of its deterrent effect on the activities taxed, operates as a regulation which is beyond the congressional power.
So, he acknowledged the petitioner's statement that the NFA was regulatory and not revenue generating in nature. He then goes on to add, near the end of the opinion:
Here the annual tax of $200 is productive of some revenue. We are not free to speculate as to the motives which moved Congress to impose it, or as to the extent to which it may operate to restrict the activities taxed. As it is not attended by an offensive regulation, and since it operates as a tax, it is within the national taxing power.

So, from that we can conclude that since it generates revenue as a tax, that the Law is not regulatory in nature and is within Congress' taxing authority.

I think we are going in circles - which could easily be me.

The argument made in the above case was that the tax wasn't really a tax, it was a penalty (an exercise of a police power) disguised as a tax. Now that the tax has been reduced to zero, no one can argue that main point. So to me, if anyone wants to rely on that case, they have to suggest a negative inference. The case only means what it says for that situation - and facts. And the BBB means things have changed, so they have to come up with another argument (in my opinion), as n one can now argue the BBB revisions are an impermissible exercise of a police power. They can instead try to argue that there was no power - like the Commerce Clause.

I personally was shocked that Obamacare was upheld when what I thought was clearly a penalty was OK'd as a tax. So if that can pass muster, what Congress calls a "tax" at $0 may be given lots of deference.

What does it mean now that there is no tax? That is the question. The petitioners will most likely argue that since there is no tax on these items, the purpose of the requirements of the NFA for them is purely regulatory and therefore an infringement of the 2nd Amendment.
The Court will have to determine if that is the case or not.

I am still not sure there is no tax. There's no revenue tied to those (now) excluded items. However, there are lots of tax laws, and particular requirements, not all of which directly generate revenue. And as above, if what seems like clearly a penalty (Obamacare) can be approved as a "tax" then a registration, approval and "tax" of $0 might too.

But assuming I'm way off base on that "there's still a tax" technicality, something that is purely regulatory could still be permissible if there is a power (like the Commerce Clause) and it's not so restrictive as to violate Bruen and other SC case.

 

[Spoonbill]

Yes, one of the ways to attack the argument being made that Congress lacks the power to create a tax that doesn't generate revenue is just to justify the NFA requirements under the Commerce Clause. That wasn't done at the time of Sonzinsky becasue it predated the biggest modern Commerce Clause case by a few years (Wickard v. Filburn).

So, one could argue that the NFA is otherwise justified under the modern Commerce Clause precedents, but there is a major problem with that argument. The Court has generally required a "jurisdictional hook" for Congress to use its commerce power. This is why almost all federal gun statutes that rely on the commerce power apply only to firearms that have been "shipped or transported in interstate or foreign commerce." When a federal gun law lacked this hook, the Court struck it down: https://www.oyez.org/cases/1994/93-1260

The NFA lacks a jurisdictional hook becasue Congress relied on the tax power to enact it.

Slightly off topic but also relevant, it would be nice to see the Commerce Clause reigned in further. There is an argument under the Necessary and Proper Clause but only Thomas seems to ever lean on that so I don’t see the SC going that route, but you never know.

 

[HandgunHTR]

I think we are going in circles - which could easily be me.

The argument made in the above case was that the tax wasn't really a tax, it was a penalty (an exercise of a police power) disguised as a tax. Now that the tax has been reduced to zero, no one can argue that main point. So to me, if anyone wants to rely on that case, they have to suggest a negative inference. The case only means what it says for that situation - and facts. And the BBB means things have changed, so they have to come up with another argument (in my opinion), as n one can now argue the BBB revisions are an impermissible exercise of a police power. They can instead try to argue that there was no power - like the Commerce Clause.

I personally was shocked that Obamacare was upheld when what I thought was clearly a penalty was OK'd as a tax. So if that can pass muster, what Congress calls a "tax" at $0 may be given lots of deference.

I am still not sure there is no tax. There's no revenue tied to those (now) excluded items. However, there are lots of tax laws, and particular requirements, not all of which directly generate revenue. And as above, if what seems like clearly a penalty (Obamacare) can be approved as a "tax" then a registration, approval and "tax" of $0 might too.

But assuming I'm way off base on that "there's still a tax" technicality, something that is purely regulatory could still be permissible if there is a power (like the Commerce Clause) and it's not so restrictive as to violate Bruen and other SC case.

Yeah, I think we are talking past one another, but fundamentally we are on the same page, I believe.

It's all good and until the arguments are actually made in court, it is just speculation from this very clearly not a lawyer (me).

I also wouldn't put it past the Reps that pushed for it to attach the HPA and SHORT to another piece of legislation later this term either.