The so-called Byrd Bath removes anything in a budget reconciliation bill that isn’t directly related to taxation or spending. In anticipation of the Senate Parliamentarian’s imminent ruling on whether the Hearing Protection Act and the SHORT Act provisions included in the reconciliation bill, here are some pieces of evidence that NFA was clearly a tax act.
.
The issue starts with then Attorney General Homer Stille Cummings’ famous testimony on the National Firearms Act of 1934.
.
“Oh, we do not attempt to escape it. 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 absolutely 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 the machine gun” and when you say that “the absence of a license showing payment of the tax has been made indicates that a crime has been perpetrated,” you are easily within the law.”
.
Here are a few court decisions that clearly had the same understanding.
.
“Petitioner does not deny that Congress may tax his business as a dealer in firearms. He insists that the present levy is not a true tax, but a penalty imposed for the purpose of suppressing traffic in a certain noxious type of firearms, the local regulation of which is reserved to the states because not granted to the national government. . . But a tax is not any the less a tax because it has a regulatory effect. . . 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.”
Sonzinsky v. United States, 300 U.S. 506, 512-514 (1937).
.
“Section 5851 forms part of the National Firearms Act, an interrelated statutory system for the taxation of certain classes of firearms. . . We do not doubt, as we have repeatedly indicated, that this Court must give deference to Congress’ taxing powers, and to measures reasonably incidental to their exercise. . ..”
Haynes v. United States, 390 U.S. 85, 87, 98 (1968).
.
“As we stated above, the NFA is part of a comprehensive scheme to levy and collect taxes upon the making and transfer of certain firearms. The NFA’s regulatory provisions need only bear a “reasonable relation” to the statute’s taxing purpose.”
United States v. Aiken, 974 F.2d 446, 448 (4th Cir. 1992)
.
“To the contrary, it is well-settled that § 5861(d) is constitutional because it is ‘part of the web of regulation aiding enforcement of the transfer tax provision in § 5811. Having required payment of a transfer tax and registration as an aid in collection of that tax, Congress under the taxing power may reasonably impose a penalty on possession of unregistered weapons.’”
United States v. Gresham, 118 F.3d 258, 262 (5th Cir. 1997) (citing United States v. Ross, 458 F.2d 1144, 1145 (5th Cir.1972)).
The guarantee of our second amendment is enshrined in the constitution . Any fee imposed by local, state or federal agency’s on the ownership, use or transfer of firearms can only be considered a TAX on such.
It seems that the NFA`34 is either:
1. – a tax
2. – a regulatory scheme; or,
3. – both a tax and a regulatory scheme.
Does it make sense to say that it was a tax from one viewpoint and is a regulatory scheme from another viewpoint? Or a tax in 1934 . . . 1992 and became a regulatory scheme around the turn of the 21st Century?
It doesn’t seem to make sense to say that NFA ’34 was a tax until the moment the Senate parliamentarian decided it wasn’t a tax.
It seems to make sense that Congress can decide to remove an object from taxation by removing it from the law that subjects that object to taxation. That then renders moot the provisions of that law that enforced the collection of the tax; i.e., the registration and penalty provisions.
Nevertheless, suppose the parliamentarian is right; that the NFA`34 is NOT a tax. Then, NFA`34 loses its taxing power pretext to exempt it from scrutiny as an “infringement” on the right to keep and bear these particular arms.
I suppose the courts could say that they need to take no judicial notice of the parliamentarian’s ruling. The law-making branches (House, Senate, and President) might agree that the NFA`34 should be changed, but the opinion of one UNelected employee of the Senate precludes both: law-change by the law-making branches; and a Constitutional evaluation of NFA`34 by the Courts. She vetoed both a proposed act of Congress and Constitutional scrutiny by the Courts.
What’s the logical path to break this Mexican Standoff? It seems to be the following: The parliamentarian’s decision is essentially the work of the Senate, and its decision to maintain the Filibuster rule and the Byrd rule. The Republican majority in the Senate could over-rule the parliamentarian, but let’s presume that the Senate does not do so. Very well, then it is the Senate’s conclusion that NFA`34 is not a tax (whether or not it was a tax in 1934 or anytime prior to the present moment.) If the Courts take judicial notice of this decision by the Senate then they must admit that NFA`34 is not – NOW – a tax and the taxing-power no longer serves as a pretext of Constitutionality. NFA`34 is now subject to scrutiny under the infringement prohibition of the 2A.
The taxing power is a very thin pretext to evade the rights enumerated under the Constitution. We would not tolerate such an excise tax stamp on the transfer of a rosary or a Koran. Nor on an exercise tax on the privilege of self-incrimination. Why tolerate it on the transfer of an “arm”? Because the Courts can’t take judicial notice of the parliamentarian’s decision? Very well, but the Courts can take judicial notice of the Senate’s decision not to override the parliamentarian.
Thanx. IMHO taxation of guns and accessories is infringement. A few REAL Republicans could’ve fixed this. Such is why I despise the GOP/RNC and their RINOs.