Constitutionality of NFA and machinegun ban

[Telperion]

Yet another question from an armchair Constitutional scholar:

Since the power to tax is the constitutional basis for the NFA, and the 1986 "ban" on machineguns essentially removes the authority of the government to collect taxes on post-1986 machineguns, doesn't this break the taxation argument? Has any challenge been issued on these grounds?

 

[Kharn]

It has been challenged and was found unconstitutional, but it never went further than US District Court in some back-water area of an anti-gun state that already outlawed civilian MG possession (so the defendant was guilty under state law but not federal). Here's the case in question: US v. Rock Island Armory

In sum, since enactment of 18 U.S.C. § 922(o), the Secretary has refused to accept any tax payments to make or transfer a machinegun made after May 19, 1986, to approve any such making or transfer, or to register any such machinegun. As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional.

Its a very interesting read, and the judge's conclusion was that since the US refuses to accept tax money they can no longer regulate it under the current law (as the current law is under the tax codes, no tax = no law).

Kharn

 

[Kharn]

Found another one, this time from the 10th Circuit Court (covering Oklahoma, Kansas, Colorado, Utah, New Mexico and Wyoming): United States v. Dalton, 960 F.2d 121 (10th Cir. 1992)

Could a lawyer please explain the last paragraph of Dalton:

Accordingly, we vacate Dalton's conviction and reverse with instructions to dismiss the indictment. In so doing, we recognize that the illegal possession of a machinegun is a most serious matter. However, it is precisely because this conduct raises such grave concerns that the government must exercise its prosecuting responsibility with care. The decision to proceed under an inapplicable statute has resulted in a constitutionally infirm conviction.
VACATED AND REMANDED.

Does that mean that only Dalton is free from those charges, or is the government prevented from levying the same charges against another person in the 10th Circuit as the law is unconstitutional?

One case that also applies is US v. Rivera which discusses how other Circuits (Fourth, Fifth and Seventh) have rejected Dalton, saying that:

The two statues are not irreconcilable because, despite the defendant's assertations to the contrary, he can comply with both acts. While he may not be able to register newly-made machine guns in which he deals, neither act requires him to deal in such guns. Simply put, the defendant can comply with both acts by refusing to deal in newly-made machine guns.

What a nice cop-out: The contradicting laws against machine guns are not unconstitutional, because if you didnt deal in MGs, you wouldnt be in trouble for dealing in them.

Kharn

 

[Telperion]

Thanks Kharn, good to know there are some cases to draw on when the time comes.