Is there any legal defense for high gun and ammo Taxes?

[The Alaskan]

Well since you seem to know something about this "decisional law," why don't you share that with us?

 

[Frank Ettin]

Well since you seem to know something about this "decisional law," why don't you share that with us?

Because preparing a worthwhile response to the OP's question would take several hours of research. I'm aware that the law is out there, but I'd need to dig up cases and read them.

Of course it's easier and more fun to sit in one's easy-chair and guess, make stuff up, or conjure opinions out of thin air. But coming up with useful answers to questions of law takes research and work.

As you might have seen from reading my posts, often I will in fact do the research. However, I'm not inclined to always be the one to do the heavy lifting.

I've done this sort of thing in the real world, in real life, and for real stakes, for more than 30 years.

 

[The Alaskan]

It's also pretty easy to shoot down everyone else's ideas without even offering anything to refute those ideas.

 

[barnbwt]

Is there a proper fancy legal-sounding name for "prohibitive tax," because some simple searching on such a basic concept is turning up a goose egg for me (at least as far as court cases/rulings). Only results are for pot stuff, which I guess answers the question, right? That a prohibitive tax is fully constitutional provided it does not clash with the bill of rights, even though the premise of such laws is solely to extend congress' reach beyond its enumerated grasp (which is why it took an amendment to make alcohol contraband, instead of simply 'taxing' the bejeezus out of it)?

Frank, how do you think an objection based on hindrance of insterstate commerce would stand up? It's not quite the same as a punitive tariff of one state on another since it still applies internally, but it most certainly impacts one's ability to sell wares into that market due to the price increase (and thus restricts options for those within, as intended). The same argument applies to AWB's as well, but I'm not aware of it being brought up formally in court cases (what with AWB law being fairly nascent and still open territory in the higher courts, from what I understand). It seems like a reasonable reverse-angle of the logic that wheat I grow in my back yard for personal consumption impacts the interstate/global marketplace in ways that may be constitutionally-regulated (in this case, the state making it more difficult/impossible to sell said wheat without declaring it contraband or compensating me)

TCB

 

[Frank Ettin]

It's also pretty easy to shoot down everyone else's ideas...

Unless you can support your ideas with something better than your imagination, there's no reason to pay any attention to them.

Is there a proper fancy legal-sounding name for "prohibitive tax," because some simple searching on such a basic concept is turning up a goose egg for me (at least as far as court cases/rulings). Only results are for pot stuff, which I guess answers the question, right? That a prohibitive tax is fully constitutional provided it does not clash with the bill of rights, even though the premise of such laws is solely to extend congress' reach beyond its enumerated grasp (which is why it took an amendment to make alcohol contraband, instead of simply 'taxing' the bejeezus out of it)?...

That's sort of the idea in the broadest terms, and the term usually used is "regulatory tax."

I believe that in general there are cases sustaining taxes that go beyond revenue raising and have a regulatory purpose. And I suspect that there are cases dealing with the question in other contexts beside the old (1937) federal tax on marijuana. We see regulatory taxes as part of environmental control or pollution control legislation. And don't forget the "gas guzzler" tax.

So we'd need some research into the case law addressing how to tell the difference between a revenue tax and a regulatory tax.

Then of course, the question of a tax on guns or ammunition raises the issue of a regulation or taxation of a constitutionally protected right. But we also know that some imited regulation of constitutionally protected rights has been permitted by the courts. So we really need to look at any tax on guns or ammunition from that perspective as well.

So, for example, Minneapolis Star and Tribune Company v. Minnesota Commissioner of Revenue, 460 U.S. 575, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983) was alluded to earlier in this thread. In that case the Supreme Court struck down on First Amendment grounds a Minnesota tax that affected only a few of the large newspaper publishers. And a major factor in the Court's decision was the differential nature of the tax.

For example, the Court points out (Minneapolis Star and Tribune, 460 U. S. 575, at 581):

...Clearly, the First Amendment does not prohibit all regulation of the press. It is beyond dispute that the States and the Federal Government can subject newspapers to generally applicable economic regulations without creating constitutional problems. See, e.g., Citizens Publishing Co. v. United States, 394 U.S. 131, 139, 89 S.Ct. 927, 931, 22 L.Ed.2d 148 (1969) (antitrust laws); Lorain Journal Co. v. United States, 342 U.S. 143, 155-156, 72 S.Ct. 181, 187, 96 L.Ed. 162 (1951) (same); Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 921, 95 L.Ed. 1233 (1951) (prohibition of door-to-door solicitation); Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 192-193, 66 S.Ct. 494, 497-98, 90 L.Ed. 614 (1946) (Fair Labor Standards Act); Mabee v. White Plains Publishing Co., 327 U.S. 178, 66 S.Ct. 511, 90 L.Ed. 607 (1946) (same); Associated Press v. United States, 326 U.S. 1, 6-7, 19-20, 65 S.Ct. 1416, 1418 1424, 89 L.Ed. 2013 (1945) (antitrust laws); Associated Press v. NLRB, 301 U.S. 103, 132-133, 57 S.Ct. 650, 656, 81 L.Ed. 953 (1937) (NLRA); see also Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) (enforcement of subpoenas). ...

But in Minneapolis Star and Tribune (at 581):

...Minnesota, however, has not chosen to apply its general sales and use tax to newspapers. Instead, it has created a special tax that applies only to certain publications protected by the First Amendment. Although the State argues now that the tax on paper and ink is part of the general scheme of taxation, the use tax provision, quoted in note 2, supra, is facially discriminatory, singling out publications for treatment that is, to our knowledge, unique in Minnesota tax law.

Minnesota's treatment of publications differs from that of other enterprises...

However, the Court also admitted the possibility of a permissible regulatory tax (at 582):

...A tax that burdens rights protected by the First Amendment cannot stand unless the burden is necessary to achieve an overriding governmental interest....

...Frank, how do you think an objection based on hindrance of insterstate commerce would stand up?...

From what I recall of the cases, that can be a very difficult line of attack. Courts have found certain actions by a State pursuant to its police powers to impose an undue burden on interstate commerce and to therefore be invalid. On the other hand, courts have found other actions by a State pursuant to its police powers to be valid, even though those actions did in some way burden interstate commerce.

The point is that it's not a simple test.

 

[The Alaskan]

Unless you can support your ideas with something better than your imagination, there's no reason to pay any attention to them

I didn't use my imagination. I used my knowledge of American History and the US Constitution to formulate my own interpretation and add just one of many possible positions on the issue.

But I understand where you're coming from. You're one of those guys, obviously with a degree, possibly a law degree, and, subsequently, only your comments and positions are valid. The rest of us have nothing to contribute because we don't have PhD's. (I have a Master's, BTW.) But I get it. I've met many like you.

SO on THAT note, I defer to your superior intellect and formal training, and I hereby yield the discussion to you.

 

[barnbwt]

"a major factor in the Court's decision was the differential nature of the tax."

I figured this would have to figure prominently in proving any sort of abuse/damage. Like, a tax on all sales is kosher but maybe not a tax on all writing/printing utensils, and especially not with the stated purpose being to deny a certain group access to them. A broad income tax fits with other constitutional protections once Congress was delegated the authority to implement it by constitutional amendment, but a tax to be levied on one individual or corporation for the purposes of its destruction would clash badly with the 14th amendment (I'd think).

The stated purpose part may be where Seattle will probably get itself in trouble if there is to be any, more so than any commerce-related argument. I think you are probably right that such a test is difficult to prove without flagrant evidence of damage at hand (like, there being no remaining gun dealerships in the major metro area afterward and no remaining way to purchase firearms). I'd imagine more so the more firearm-specific their tax-scheme is made, and the more hostile their rhetoric, the easier the malicious intent is to prove. I'm sure there's case law somewhere for a legislature using tax power to intentionally destroy a disfavored industry or business that doesn't get lost in the 1st amendment weeds. I'd like to think that other businesses couldn't legally receive the same focused taxation as the Minneapolis newspapers, so long as they weren't publishing

"Clearly, the First Amendment does not prohibit all regulation of the press"
Do I even have to say that the language of the 2nd is just a little more forceful on this front than the first? It just always kills me how declarative courts always view the 1st, even though it has that massive "congress shall..." condition right up front, whereas the 2nd is somehow vague and carries all sorts of unwritten meaning. The 2nd clearly does prohibit all regulation of the right to keep and bear arms --just not of the militia

TCB

 

[Frank Ettin]

I didn't use my imagination. I used my knowledge of American History and the US Constitution to formulate my own interpretation and add just one of many possible positions on the issue...

In this discussion your knowledge of American History and what you might thing you know about the Constitution is irrelevant. The question the OP asked was very specific:

....is there any legal defense on stopping excessively high taxes on guns and ammo?

For there to be a legal defense to high taxes on guns and ammunition, one would need to be able to convince a judge to block the enforcement of such a tax. Doing that would require sound legal arguments based on the law (both statute and case law) and the applicable facts. Whatever knowledge you might have about history and the Constitution won't get you there.

There are two people in this thread who have demonstrated that they know how to do legal research and formulate legal arguments -- Spats McGee and I. We are both actual lawyers (I'm retired after thirty years in practice). That doesn't mean no one else can. It's only a matter of having the knowledge and skills and of doing the appropriate research. But I know about Spats and me because we've done this sort of thing in the real world representing real clients having real stakes in the outcomes.

But to be able to respond in a meaningful way to the OP's specific question does require some specialized knowledge and research. If the issue involves how a judge might decide something or how to convince a judge to decide something in a particular way, a discussion needs to be based on how things are actually done in court for the discussion to be meaningful.

And in a discussion related to how things are actually done in court, only interpretations and positions supportable with legal authority matter.

 

[heyjoe]

One of the lawsuits against the NY State Safe Act in federal court in part includes the hindrance of interstate commerce argument in regards to banning internet ammo sales directly to an individual. The argument was not successful at the district court level but has been appealed.

 

[Frank Ettin]

...I'm sure there's case law somewhere for a legislature using tax power to intentionally destroy a disfavored industry or business that doesn't get lost in the 1st amendment weeds. I'd like to think that other businesses couldn't legally receive the same focused taxation as the Minneapolis newspapers, so long as they weren't publishing ...

Then do the research and report back. But speculation gets us nowhere.

"Clearly, the First Amendment does not prohibit all regulation of the press"
Do I even have to say that the language of the 2nd is just a little more forceful on this front than the first?

That horse has long since left the barn. There will be regulation sustained by the courts of the rights protected by the Second Amendment. There can be no doubt of that. Even Heller held the door open.

 

[gun_with_a_view]

the question of a tax on guns or ammunition raises the issue of a regulation or taxation of a constitutionally protected right. But we also know that some limited regulation of constitutionally protected rights has been permitted by the courts. So we really need to look at any tax on guns or ammunition from that perspective as well.

When the by-and-large inept lower courts get through jacking around with these type issues, they can be heard by SCOTUS, where most will certainly fail to pass constitutional muster under the analytic framework of strict scrutiny. And that is only where governmental entities are financially able to go to trial. To wit:

Disregarding the extra language on related to immigration, this quote from retired federal court judge Judge Andrew Napolitano offers an excellent summation of strict scrutiny:

The high bar is called strict scrutiny. It requires that the government demonstrate an articulated area of jurisdiction and a compelling state interest served by the least restrictive alternative before it can treat a person differently or uniquely because of his or her place of birth. A compelling state interest is one that is necessary to preserve life or the state’s existence, and it must be addressed using the least force and causing the least interference with personal liberty possible.

http://www.washingtontimes.com/news...no-constitution-doesnt-give-governm/?page=all

 

[barnbwt]

From what little research I've been able to do outside my day job and hobbies;
Bailey v Drexel Furniture, which involved a tax on goods made with child-labor, for the purpose of prohibiting it (very similar to the moralist arguments underpinning these gun taxes, but this was a federal and not state tax, so similarities probably aren't that useful) that was struck down. While not directly analogous, it was struck down precisely for being regulatory and prohibitive. Supposedly, this same type of tax was apparently never tried during slavery because it was seen as clearly unconstitutional.

"An act of Congress which clearly, on its face, is designed to penalize, and thereby to discourage or suppress, conduct the regulation of which is reserved by the Constitution exclusively to the States, cannot be sustained under the federal taxing power by calling the penalty a tax" --Taft (president/chief justice, which was comically somehow constitutional despite the whole 'separation of powers' thing ). Rather interesting quote considering the 2012 healthcare ruling, but nonetheless, does show some similarity to the case in Seattle. It still remains to be seen if later precedent has applied the same logic to state/city level punitive taxation. In any case, there is a ton of conflicting precedent with this particular case, since between the ATF, DEA, and EPA, there's a whole raft of equally "regulatory and prohibitive" taxes on the books. One might even say many of the fed's most unrestrained powers seem to derive directly from these kinds of taxes.

It's also worth mentioning (not that such factoids carry weight in a courtroom) that a distinct inflection point regarding regulatory taxes occurred during --you guessed it-- the New Deal. Now, I know 'precedent is precedent,' but that period of history was kind of he most questionable in terms of rapid federal expansion of authority since the Civil War. Again, not an 'argument' per se in a court of law, but something to be mindful of for those interested in determining the root of later precedent that is clearly contradictory to our principles. I say this because even though there may be valid arguments against abusive taxation, we may have lost our chance by allowing 100 years of FDR-era precedent to stand. "That's what ultimately matters in the real world" as is said so often around here...

Alternately, the 16th amendment is what gave the feds the power to levy income taxes disproportionate to states' populations (i.e. elected reps), so perhaps this delegated freedom to tax disproportionately could expand to other levels of government (not just congress) the power to lay down other tax burdens more or less as they wish through legislation (the language of the amendment is sure expansive enough to suggest such a conclusion). Previously, taxes could only be levied on transactions across state or federal lines (and interestingly, not on manufacturing activities prior to the transaction, which were not seen as 'interstate commerce'). While not an 'income' tax, these firearms sales taxes would not be viewed as a tax function wholly different from others (now that income tax is a long-accepted tradition). Seems like we might have shot ourselves in the foot a century ago going off-script, as usual.

btw, researching tax rulings online is really obnoxious; pretty much nothing but crank tax-skeptic websites and analyses of Obamacare. If there's a better resource that doesn't require you to know your exact result before searching (like the academic databases do) I'd love to hear about it.

TCB

 

[barnbwt]

"When the by-and-large inept lower courts get through jacking around with these type issues, they can be heard by SCOTUS"
I've often wondered why the higher courts don't punish the lower ones for poorly-reasoned (i.e. stupid) rulings more often (even if the outcomes ultimately aren't overturned). No boss likes having the buck passed up to him, even if it does present him with an opportunity to 'save the day.' I assume that there is some understanding of clemency of high courts to lower ones in order to 'preserve impartiality' or something, except in really bad cases?

That idiot DC judge who convicted Witashek of not violating the law comes to mind, not to mention the zillion 'punt opinions' that make their way upward every year. The next higher rung can't enjoy having to explain away the plot holes and spelling errors of the lower opinion they seek to agree with.

TCB

 

[Spooler41]

Has anyone else read the actual preemption law for Washington? It will be found as
Washington RCW 9.41.290 and it states in part, "The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of
the state,including the registration, licensing,possession,purchase,sale acquisition,transfer,discharge and transportation of firearms, or any other element
relating to firearms or parts thereof, including ammunition and reloading components".

Now go back and reread post#16 then let me know if this is not absolutely clear
as far as preempting any local firearms law that conflicts with state law.

........................ Jack

 

[Frank Ettin]

Has anyone else read the actual preemption law for Washington? I....

Now go back and reread post#16 then let me know if this is not absolutely clear
as far as preempting any local firearms law that conflicts with state law.

But this thread is not about the Seattle tax. The OP asked:

...However, not every state has preemption laws.



So, is there any legal defense on stopping excessively high taxes on guns and ammo?

I think folks are quite confident that the Seattle tax will lose.

But the issue is whether in the absence of a sufficiently broad state preemption there would be some reliable ways to attack a local gun or ammunition tax.