Old machine gun case, another look.

[nicki]

http://bulk.resource.org/courts.gov/c/F2/960/960.F2d.121.91-1149.html

Found this case from the 7th circuit. It is a 1992 case.


US vs Rock Island Armory(1992) 7th circuit.

I am not a lawyer, and this ruling got me confused, which is why I figured some of you guys could give your insight.

We have a national guardsman who is now going to serve 30 months for a defective AR15, so we have someone whose life has been seriously screwed, this may be a dead horse, but considering we have a innocent man in Club Fed, I feel it is worth the post.

From what I understand, when you get charged with violating the NFA, they charge you with a violation of tax law.

In the original NFA 1934, I guess the tax code route was used probably as a end run around the constitution. If the government could have banned machineguns and other NFA weapons outright, I believe they would have.

What they did was attach a tax few could pay and then claim that the tax was used for government revenue.

Fast forward to 1986. The Hughes amendment is added as a last minute poison pill to derail the FPA(Firearms protection act), it gets attached, the FPA is voted on, at the time, members of Congress were trying to avoid more amendments.

What the Hughes amendment did was prohibit the collection of taxes on private machineguns made after 1986.

Bear with me, the original NFA claimed it's authority from the taxing authority of the US, that is was used to raise government revenue.

Now what happened in the US vs Rock Island the way I read it is that the Court rules that since the government effectively repealed the tax, in fact refused to collect the tax, that it gave up it's authority over private machineguns made after 1986.

The government did appeal, but then withdrew its appeal.

I don't know if this case is still hanging around or if it got overruled in the 7th circuit, but to me it brings up a simple question.

How can someone be subject to government action if the government has no source of authority for the exercised action?

Perhaps this could be a issue that he could make a appeal on.

Maybe the Solicitor General already knows that Federal gun laws are already without authority which is why he really wanted to get Heller out of the SCOTUS.

Perhaps the gun grabbers are right, their sky is falling.

Something tells me that the BATFE is not going to be very forthcoming about questions regarding its sources of jurisdiction.

Here is a serious fundamental question to consider. If the government can send people to prison for crimes that the so called law lost it's source authority for, what has our country become?



Nicki

 

[canopy2k]

I thought the same thing, but it has since been explained to me thusly:

922(o) effectively repealed NFA '34 ONLY in regards to MG's made after May 19, 1986. You cannot (if you live in Jurisdiction of the court that made this ruling) be prosecuted under NFA law. Instead, you must be prosecuted under 922(o) which provides up to 10 years in prison.

So, In respect to post-86 MG's, you will be charged under 922(o) and not NFA '34.

c2k

 

[hso]

OT for Activism.

 

[Sam Adams]

Nevermind.

 

[MGshaggy]

The NFA, enacted in 1934, was done pursuant to the taxing authority of Congress because at the time it was thought that Congress wouldn't have authority via the Commerce Clause to do so. Fast forward to 1942 when the SCOTUS vastly enlarged the scope of authority under which Congress could legislate via the Commerce Clause in Wickard v. Filburn. Under the interpretation of interstate commerce advanced in Wickard, it was clear Congress could have enaced the NFA pursuant to its powers to regulate interstate commerce. Fast forward again to 1986, when 922(o) was enacted under the interstate commerce power.

So how can 922(o) be Constitutional if Congress has specifically declined to allow further registrations of new MGs under its interstate commerce power? Fast forward one final time to 2005 where in Gonzales v. Raich where the SCOTUS basically opened the use of the interstate commerce power to regulate anything under the sun. Raich was a case involving cannabis, but it had a companion case (US v. Stewart) involving the wholly INTRAstate manufacture, possession, and use of a machinegun by Bob Stewart.

 

[nicki]

Interstate Commerce Clause.

Thanks for sharing that interstate commerce clause info.

The abuse of the interstate commerce clause is something that needs to be fixed, the only solution I see is a well written constitutional amendment to bring the commerce clause back to original intent.

I remember that Cannibas ruling. Three Judges could read the constitution, unfortunately 2 of those 3 are gone.

While I applaud Scalia on Heller, the only Supreme court Justice we have that I feel really follows true intent is Thomas. Maybe Roberts and Alioto are just as good, I don't know.

Nicki

 

[Sebastian the Ibis]

Remember the inevitable onslaught of the commerce clause consuming everything, was thwarted by a gun case. US v. Lopez. The Federal Gun Free School Zone Act did not bear a close enough relationship to interstate commerce.

 

[MGshaggy]

Lopez was an attempt to reign in the overbroad use of the commerce clause as a source of legislative authority, but it was a relatively narrow ruling. If not for the limited geographical area of a school district, it wouldn't have come out the same way. Raich, IMO, was a ringing endorsement of Wickard, and a signal that Lopez shouldn't be read too broadly.

 

[Sam Adams]

Wickard is a cancer on the Constitution, a naked power grab by the Congress that the Court has continuously aided and abetted by allowing it to stay as settled law for the last 65 years.

 

[nicki]

Wicard has got to go.

I know that this is a gun forum, but the so called source of authorities for gun and drug laws are the same.

The Federal government has perverted the power to tax and the power to regulate interstate commerce to significantly infringe all of our rights.

The interstate commerce clause was originally intended to promote commerce between the states, not give the Federal government jurisdiction in every part of our lives. It has got to be changed.

Taxing authority was meant to fund legitimate and needed government functions, they were never meant to be used as a way to destroy our liberties.

Our founding fathers were honorable men, it is dishonest politicians that created these things.

What can I more can I say.

Nicki