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The FOPA is coming under SCOTUS scrutiny

Discussion in 'Legal' started by HKUSP45C, Nov 25, 2004.

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  1. HKUSP45C

    HKUSP45C Member

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    as my understanding goes as of Dec. 6th. What will this mean (if a win is established) for all "commerce clause" laws?

    edit; this is the case:
    In the Supreme Court of the United States
    UNITED STATES OF AMERICA, PETITIONER
    v.
    ROBERT WILSON STEWART, JR.
     
  2. Kharn

    Kharn Member

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    Supreme Court Docket file for this case

    Well, it should be interesting, we've discussed its implications before, try a search for "Stewart".

    The possible outcomes range from the status quo to new MGs for everybody with $200 and everything inbetween.

    Kharn
     
  3. Third_Rail

    Third_Rail Member

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    Hm. Seems like this could mean either we win and win big, or we lose and don't lose anything further, that is that the law isn't changed?

    Am I correct here?
     
  4. HKUSP45C

    HKUSP45C Member

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    I was really more concerned not so much with machine guns. I was more curious about the implications of ALL the "commerce clause" Fed laws. Laws like prohibition of drugs and racketeering and income tax. Won't killing this one kill those soon? :confused:
     
  5. Hkmp5sd

    Hkmp5sd Member

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    We do lose further...

    If it goes against Stewart, it sets a precedent for banning a category of firearms. The original NFA merely required the registration and transfer tax because at the time, the government believed the 2nd Amendment does guarantee the individual right to own any type firearm. The FOPA was an outright ban on new machineguns. If SCOTUS decides one class of firearms can be banned from the public, it is just a matter of the .gov expanding and adding other "classes" of firearms the banned list.
     
  6. Third_Rail

    Third_Rail Member

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    D'oh. :banghead:
     
  7. musher

    musher Member

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    I think the reason it was formulated as a tax wasn't a 2nd amendment issue. I believe that congress (and the ussc) at that time believed the US government to be one of delimited powers. There's no power to restrict firearms in the US constitution, but there is taxing authority. They didn't believe they had the legal ability to regulate firearms directly, but figured taxing them prohibitively would work just as well and pass constitutional muster.
     
  8. jefnvk

    jefnvk Member

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    Correct me if I'm wrong, but wasn't the NFA originally set up as a result of the organized crime popping up during prohibition?
     
  9. Bubbles

    Bubbles Member

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    HK - December 6th is the deadline for Stewart's attorney to file a response to the DoJ's writ of certiorari. Even if the USSC grants cert, it won't hear this case until next year...

    The DoJ's writ can be viewed online at http://www.mp5.net/info/wilson.pet.app.pdf (strong stomach required).

    Note the references in it to the Raich case, which was heard earlier this month.
     
  10. Langenator

    Langenator Member

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  11. jimpeel

    jimpeel Member

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    I found this part of the writ interesting
    as it clashes seriously with this from Printz
    Perhaps that future date is upon us.
     
  12. Hkmp5sd

    Hkmp5sd Member

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    The reason the NFA was formulated as a tax was specifically because of the 2nd Amendment. The government wanted to stop the gangsters from running around with machineguns and sawed off guns. They believed they couldn't simply ban these weapons due to 2nd Amendment protections so they came up with a $200 tax on them. During the 1930s, this was a considerable amount of money.

    And as with all gun control laws, it didn't work. The gangsters didn't bother with registration, so the only people it effected were the average citizens that couldn't afford $200 in the middle of the depression.
     
  13. c_yeager

    c_yeager Member

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    Even without the depression $200 was an absurd amount of money for a tax. It was effectively a complete ban on legal ownership for all but the most wealthy (ironicly the big crime lords of the time were in this category). Bear in mind that this was a $200 tax in a time where brand spanking new full-auto 1921 thompsons were selling for between $175-$250 and were considered ABSURDLY EXPENSIVE. You could buy a brand new Model-T for $290 in the mid-twenties.
     
  14. Kharn

    Kharn Member

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    After inflation and the like, $200 in 1934 is equal to about $2700 in 2003 dollars.

    Kharn
     
  15. Zedicus

    Zedicus Member

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    This is Very Interesting, Hopefully this will be our next victory in beating back the flood of lies the anti's constantly spew.

    If this is to succeed, I think we will need to get a a ton of support behind it & keep the "Nobody needs a Full Auto to hunt with" crowd quiet & out of the public eye, as well as have a lot of cool headed people that project a strong if not overwhelming positive feel about the subject on tv/radio.

    & perhaps beting the anti's at there own "Psycological Game" may also be worth looking into.

    :cool: :cool: :cool:
     
  16. musher

    musher Member

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    HK,

    The 2nd amendment was discussed as an issue during the debates on the NFA, but it seems to me that the more important problem to Congress at the time was dealing with the restrictions imposed by the 10th amendment.

    The fact that the Harrison Narcotic act was passed using exactly the same strategy seems a clear indication that Congress was struggling to find a way around a more general limitation than that posed by the 2nd amendment. Even without the 2nd amendment, Congress would have had no power to regulate firearms directly.

    Their problem was that the Constitution granted no authority to the Federal goverment to engage in the kind of policing that they wished to do; be it drugs, firearms, or whatever. The 10th amendment makes it clear, that powers not explicitly granted to the Federal Government are reserved to the states (or the peple). Use of the powers to tax and regulate interstate commerce, and in 1930 the power to establish post offices (to prohibit handguns going through the mail) provided constitutional grounding for this expansion of power into what had previously been the realm of state control.


     
  17. AZRickD

    AZRickD Member

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    JimPeel,

    As you noted, the state's writ that this case should hinge around Wickard is amazing given all of the cases (Lopez, Morrison, Printz-Mack, etc) which have served to trim that affront to the Commerce Clause and the 9th and 10th Amendments.

    Let's hope Stewart's attorney is skilled.

    Rick
     
  18. Andrew Rothman

    Andrew Rothman Member

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    Well, prohibition was repealed in 1933, the same year that the NFA was passed.

    A lot of folks figure that it was enacted to give thousands of revenooers, who would otherwise have no job, something to enforce after the repeal.
     
  19. Standing Wolf

    Standing Wolf Member in memoriam

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    That was the excuse. Crime is often the excuse government uses to deprive law-abiding citizens of our liberties.
     
  20. cpileri

    cpileri Member

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    No doubt, this occupies their thoughts as we speak...

    "was more curious about the implications of ALL the "commerce clause" Fed laws. Laws like prohibition of drugs and racketeering and income tax. Won't killing this one kill those soon"

    I have a hunch this very thing is what they are discussing in chambers right now. If the SCOTUS workslike the rest of politics, they will decide their position and write it waaaaaaayyyyy before the trial (or election, to follow the analogy). Then after the trial they publicize it, perhaps wth some last minute badgering on fence-sitters.

    So right now they are deciding between striking the commerce clause or upholding it on intrastate non-commerce. Upholding it keeps the power fo congress to tax and otherwise intrude upon our economic lives, but deals a long-term fatal blow to the 2A. Striking it down brings down the federal governents power to tax a large portion of the economy, takes the teeth out of various tax agencies (like the gun owners favorite bad-boy, the ATF), etc.

    Do you seriously think theywill rule in favor of gutting the (ill-gotten and illegal) power of congress? I don't.

    In reality, they are deciding between upholding the commerce clause, or the weasel but-better-for-us approach of upholding the CC, but finding some obscure case tosupport the power to tax while maintaining the 2A as an individual right (i.e. maintain status quo).

    I have no faith that the current justices will uphold the constitution. They haven't been able to be trusted to dothat for decades.

    C-
     
  21. Third_Rail

    Third_Rail Member

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    Is anyone else losing sleep over this?


    I sure seem to be.
     
  22. io333

    io333 Member

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    I find it interesting that Mr. "Individual Right" Ashcroft allowed the DoJ to Petition for Cert here.
     
  23. NotQuiteSane

    NotQuiteSane Member

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    Google for "bonus army"

    a number of people, including myself, belive the NFA and FFA were backlash from that.

    NQS
     
  24. Kharn

    Kharn Member

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    io333:
    Ashcroft (or Gonzales after he becomes AG) has to work to uphold current law, its his job. The executive branch doesnt have the power to say if a law is good or not, they only work to uphold the current law and let the courts figure out if its acceptable or not.

    Kharn
     
  25. Bubbles

    Bubbles Member

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