Posted: 8/13/2004 3:35:54 AM EDT
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Since exercise of the taxing power is the constitutional underpinning of the National Firearms Act, and 18 U.S.C. section 922(o) forbids Treasury to receive taxes on post-1986 machineguns, has the latter statute removed the constitutional basis for the NFA? If so, charges for an unregistered machinegun might still be brought under 922(o)--but its penalty is half that assessed for a violation of the NFA. In addition, other items covered by the NFA (such as SBRs and suppressors) would no longer be subject to registration and taxes. Has anyone looked at this? Another interesting contradiction in the language of FOPA is seen in the explicit exempting of transfers and possession "under authority" of a federal department or agency. This statement implies that Congress could easily have intended either of two inconsistent exemptions: 1. Only machineguns owned by federal agencies and meant for use in the course of official duties are possessed under authority of an agency; or 2. Machineguns possessed under National Firearms Act permits issued by the Secretary of the Treasury, presently or in the future, are possessed under authority of an agency. The implications of #1 are that even bona-fide manufactures of machineguns would no longer be allowed to make them -- which seems non-sensical. This leaves #2 as the more likely intention -- but one that effectively nullifies the post-1986 ban. Again, has anyone looked into this??? I think this is worth pursuing! |
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How does #2 nullify anything? That's exactly what 922(o) means. As far as the revenue portion, the fact there is no stamp is available is irrelevant - it's 922(o) that prohibits you from having a post-86 machinegun. Furthermore, the revenue provision related to transfer and possession are left to the discretion of the secretary. |
Not really; the NFA covers much more than machine guns, and even if one section of the NFA is invalidated by a court as part of a ripe case or controversy, the severability doctrine allows the remaining portions to remain in effect. Additionally, courts routinely attempt to interpret laws so that they are consistant with each other, and as long as an act of congress is within an enumerated power and does not affect a suspect class of people, rational review is all it will receive. That means that the intent of congress under 922(o), based on the enumerated power to regulate interstate commerce (the basis for most firearms laws in the US, for there is no federal police power), would not necessarily be interpreted by the courts to eliminate the enumerated power to tax as the basis for the NFA.
I don't see how 5 years of federal prison and no more gun rights as a felon under 922(o) are necessarily better than 10 years for violating the NFA, but that's just me.
Not so; see the severability doctrine, above. Cheers, Otto ETA:
Congress already did. 18 USC 922(o). The only loophole created here by 922(o) is the same "gunshow loophole" the banners keep hammering on. |
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Didn't mean to imply that 5 years is necessarily much better than 10. Just noting that it appears to have the unintended consequence of halving the penalty. As for the prohibition on receiving taxes: I guess this is where my lack of legal training makes me see a contradiction in the language? How can the statute say that making or transfers "under authority" of a Federal department or agency are exempted and in another part say that making or transfers by individuals is prohibited? It still seems to me that the first statement nullifies the second if the making or transfer by individuals occurs with the approval of Treasury -- a Federal entity. These actions would be "under authority" of a Federal department or agency -- consistent with the statutory language, wouldn't they? |
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There was a court case on this back when 922(o) was passed... The LOWER court held that MGs registered under the NFA were not subject to 922(o), as they were 'posessed under the authority of the United States'.... The HIGHER court reversed this and sided with the ATF, saying that only govt agencies counted... |
Understood. But see 18 USC 924(a)(2), its also 10 years.
I think the "under authority of" language refers to different things; its not a Term Of Art, and its definition is contextual. Some cases it refers to "making" of NFA firearms under the authority of the secretary of the treasury ($200 tax stamp), in other sections it refers to transfer and making taxes don't apply if transfered to an agency under the authority of the federal government; and also 922(o) may also include (based on the vast collection of items joined by commas) persons possessing machine guns under the authority of an agency of the federal government ie federal security personnel, etc. As for individuals making and subsequently transfering the machineguns to an agency under the authority of the federal gov't, possibly 922(o) wouldn't apply but the "person" would have to have clear authorization and still needs to fill out the "Form" and get approval (the person just would not have to pay the tax, see 5812, 5822 and 5852(f).) As for an individual doing this (making machineguns for a federal agency) and hoping to get paid for them (not also being a licensed mfg of NFA firearms): The Federal Aquisition Regulation (the "FAR") is 2,257pages. Good luck. Cheers, Otto |
Was it one of these? National Firearms Act, which required payment of tax on transfer or production of certain weapons, did not exceed taxing power of Congress to extent it also criminalized possession of unregistered firearms to guarantee compliance with registration requirement, even if it incidentally accomplished goals other than raising revenue. U.S. v. Gresham, C.A.5 (Tex.) 1997, 118 F.3d 258, certiorari denied 118 S.Ct. 702, 522 U.S. 1052, 139 L.Ed.2d 645. Congress did not exceed its power under U.S.C.A. Const. Art. 1, § 8 by enacting this section. U. S. v. Kilburn, C.A.10 (Utah) 1978, 596 F.2d 928, certiorari denied 99 S.Ct. 1517, 440 U.S. 966, 59 L.Ed.2d 782. Congress was within its power in enacting this section and § 924 of this title proscribing the dealing in firearms without a license and providing penalties therefor even in absence of an interstate nexus. U. S. v. King, C.A.5 (Ga.) 1976, 532 F.2d 505, rehearing denied 536 F.2d 390, certiorari denied 97 S.Ct. 384, 429 U.S. 960, 50 L.Ed.2d 327. Congress may impose criminal sanctions for the purpose of regulating purely intrastate activities which substantially affect interstate commerce. U. S. v. Hornbeck, C.A.7 (Ill.) 1973, 489 F.2d 1325, certiorari denied 94 S.Ct. 1614, 416 U.S. 907, 40 L.Ed.2d 112. Provision of this section which prohibits the dealing in firearms without a license constituted a valid exercise of the power of Congress under U.S.C.A.Const. Art. 1, § 8, cl. 3. U. S. v. Hornbeck, C.A.7 (Ill.) 1973, 489 F.2d 1325, certiorari denied 94 S.Ct. 1614, 416 U.S. 907, 40 L.Ed.2d 112. Despite absence of fully developed legislative record, Congress rationally exercised its commerce power in enacting statute prohibiting transfer or possession of machine guns, with certain exceptions, in light of legislative records of prior statutes demonstrating that Congress sought to regulate interstate flow of firearms as means to aid local law enforcement. U.S. v. Hunter, E.D.Mich.1994, 843 F.Supp. 235. (c) Westlaw 2004 |