I think the court missed one major point....you can't tax a right. The NFA is a tax on certain weapons. You cannot place a larger sales tax on political books over the average fiction novel. You cannot tax someone who wants to practice a religion other than "common" one. You cannot tax people wish to decline a search.
Now now now. One argument at a time. The secret to getting the camel into the tent is to start with the nose, as was already mentioned (going the other way, alas). Besides, NFA items and taxation were not on the agenda. To bring them up directly would not only have been irrelevant to Heller's plight, but may well have sent the swing vote the other way.
The taxation angle is a sound logical argument, but whether or not it holds water legally is another question. The groundwork for it, however, has been laid. The more you read
Heller the more you realize how much of a sea-change this is going to be if we keep the same makeup of the court for a few more cases.
I do have one nit to pick with the article quoted by the OP. To wit:
The weakness in the decision, specifically, is that there is great deference shown to "licensing", which is treated as an acceptable accommodation to the right, for the District of Columbia.
The decision creates the same problem in this area as did MILLER The decision actually says:
Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement.
Not addressing a question which was not presented before the court does not say that an action is permissible. Note that Scalia goes on to say:
...since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than Reynolds v. United States, 98 U. S. 145 (1879), our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.
What I get out of that passage of the decision is Scalia is saying, loudly and plainly for everyone in the cheap seats (and for Circuit Courts inclined to engage in outcome-based jurisprudence *cough*9th*cough), that since Heller is requesting a license, the idea of licensing passing constitutional muster is completely moot. It's not a topic that is being discussed. The mere fact that Mr. Heller is satisfied with a non-arbitrary, non-capricious licensing scheme does not mean that future petitioners will be so satisfied. What is interesting is that Scalia does two things by saying this:
1. He begs the question: Does licensing pass Constitutional muster? Guess you'll have to file suit and find out.
2. He also gives a pretty solid fallback position: the Court is satisfied by a non-arbitrary, non-capricious licensing scheme, and by logical extension they would NOT be satisfied by an arbitrary and capricious one. Can we say "May Issue ain't gonna cut it"?
Mike
