At this point everyone following the National Firearms Act debate is well aware of then-Attorney General Cummings’ famous testimony in which he justified the NFA as a tax measure. When asked how the NFA “escaped” the Second Amendment, AG Cummings replied . . .
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.
In anticipation of the Senate Parliamentarian’s imminent ruling on whether the Hearing Protection Act and SHORT Act provisions that have been merged into the reconciliation bill will survive the Byrd rule, below are a few cases over the years from the Supreme Court and federal circuit courts that also say — clearly — that the NFA is a tax, and thus qualified under reconciliation. Taxes can be eliminated via reconciliation, as taxes are inherently budgetary measures.
These cases prove that the government has long defended the NFA in court as a tax. Several plaintiffs and petitioners challenging the NFA over the years, including those in some of the cases listed below, argued the NFA isn’t really a tax but rather a regulation, so it should be struck down. Courts, however, have rejected that argument.
The NFA can’t now be conveniently characterized as something other than a tax because it suits the gun control industry powers that be. If the Senate Parliamentarian rules against our side on this, she should be ignored. It would be a transparently partisan ruling.
If the NFA has been allowed to live for so long because it was a tax, it can now be killed via reconciliation because it is a tax. No convenient eleventh hour re-characterization of the nature of the NFA should be tolerated.
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))
Konstadinos Moros is an Associate Attorney with Michel & Associates, a law firm in Long Beach, California that regularly represents the California Rifle & Pistol Association in its litigation efforts to restore the Second Amendment in California. You can find him on his Twitter handle @MorosKostas. To donate to CRPA or become a member, visit https://crpa.org/.
This post was adapted by SNW from tweets posted by Konstadinos Moros.
“DOJ and the Courts Say the NFA is a Tax…The Senate Parliamentarian Has No Choice But to Rule That Way, Too”
and the Senate Parliamentarian did rule that way, the Hearing Protection Act and SHORT Act provisions were ruled ok to stay in the bill.
The issue now is not those provisions, but rather other ‘not gun related’ provisions that did not pass Parliamentarian muster. If those items are removed, the bill can avoid the 60 vote thing in the senate and stay with the 50 +1 vote to pass it thus avoiding the 60 vote thing where the republicans do not have the seats for a 60 vote ‘super-majority’ in the senate and that’s where the democrats want this to go because they know the bill will fail there. There are a few ways around this 60 vote thing and still keep those ‘remove-them’ items in the bill and still pass it with 50 +1, sure to get the democrats screaming again, but it can be done legitimately and within rules.
Correct, 50 plus 1 if they abandon the other listed provisions.
We’re still on track. Let’s see if that happens.
In just one week’s time, we could be looking at a DRASTICALLY changed in our favor 2A rights landscape…
Don’t be so sure they will abandon the other provisions. They might compromise to keep them in by removing the HPA and/or Short act.
Not trying to be a party popper….but this is the reality of trying to cram everything into a reconciliation bill, the fragile nature of it before passing makes it vulnerable to ‘stuff happens’.
OK, brief ‘kinda update’ … They have chosen the ‘compromise/sacrifice’ route in an attempt to avoid cloture 60 vote in the senate. 7 things removed as of late yesterday, a big speed bump removed by removing the public lands stuff. Some ‘hair splitting’ going on, the parliamentarian sill slicing-n-dicing – members have been told they are not going home until this is done and to get ready for another weekend session, so this signals the parliamentarian is still hacking away at it.
More detail on what is dropped would be nice. So the tax can go, but is it fair to suggest that the hearing protection act removing silencers from the NFA is going to be dropped?
So, Congress has unlimited power to tax anything and everything into oblivion?
Somehow that seems to be unAmerican.
And what about taxes on Constitutionally enumerated rights? Does Congress have legitimate authority to tax voting, free speech, or worship? If not, then why does Congress have legitimate authority to tax the Second Amendment.
Last but not least, even if the Constitutionally defined taxing authority of Congress would apply to anything and everything, does the Second Amendment–enacted later than Constitutionally defined taxing power–supersede that previously defined taxing power?
Reminds me of a little skirmish this country went thru a couple hundred years ago.
That was interesting times I’m sure. Something about “taxation without representation “…
Yes, colonial taxation was mostly tariffs & excise taxes, but vs today’s tax burden on US citizens…?!?
I would posit that we pay vastly more taxes today, AND it’s happened to us WITH representation !
“Death by a thousand cuts” kind of thing.
Interesting that being a professional politician ensures you a life of financial growth.
Both from self-voted pay & benefit increases, and graft.
Some good questions
But I would say that Congress does have the power to pass unlimited taxes, and it’s not un-American, democratically elected representatives deciding tax policy is the structure defined by the constitution.
Sure, the courts can strike down measures that are ruled unconstitutional, and presidents can be lackadaisical about enforcing particular laws, but Congress can still pass the legislation and have it signed into law by the executive branch.
Grosjean v. American Press Co postdates the NFA and held that a much, much smaller tax on newspapers was anti 1A. For some reason nobody seems to have tried to apply this precedent to the NFA
I read somewhere, true I don’t know, to enable a tax, 60 votes in the Senate. To disable a tax, simple majority. So I must ask, instead of this BBB, why not simple 1 item bills to repeal, remove, delete policy items that are problems. USAID jumps out as an example for this one.
I would also cite: National Federation of Independent Business v. Sebelius (2012) confirming Sonzinsky v. United States as good law. It was an important part of the rationale that the affordable care act was legal as it was a tax similar to Congressional taxing power with the NFA.
And?
The purpose of the judicial system today is to increase and maintain government power over the docile flock known as “We the People”.
The argument for declaring the firearm tax not a tax is that in general, people have come to accept the NFA “tax” is not a “tax”, as everyone thinks of taxes (income taxes, sales taxes), because it applies to so few people among the populace (ask the next ten people you meet what is the meaning of “excise tax”). In effect, the NFA taxes don’t affect the wide public, and thus not a tax for purposes of budget reconciliation.
So no tax collected on any item renders the item void for a “tax” bill without explicit removal otherwise it is juat a regestration schemw
Where is the equaly apotioned among thr people as required of all taxes.