Deavis
Member
I was reading a couple NFA decisions and I'm curious about the logic involved here.
From the judgement....
But 18 U.S.C. section 922(o), prohibiting post-1986
machineguns, can be reconciled with section 5861. Citing Minor v.
United States, 396 U.S. 87, 96-97, 90 S.Ct. 284, 288-89, 24 L.Ed.2d
283 (1969), for the proposition that Congress can tax illegal
conduct such as the sale of narcotics, the court concluded that the
prohibition of post-1986 machineguns does not mean that Congress
cannot tax them. Although it is illegal to possess or manufacture
these weapons, one illegally doing so would be required to register
them with ATF and pay taxes on them. And if ATF refuses to allow
registration or the payment of taxes, one can comply with section
5861(d) by not violating section 922(o), i.e., by not possessing or
manufacturing any post-1986 machineguns. Jones, 976 F.2d at 183
(citing Minor). [footnote 4] Thus, the Jones court rejected the
Tenth Circuit's view that compliance with section 5861 was
impossible and therefore that the statute was implicitly repealed.
Jones dealt with the taxing authority argument in two ways.
First, ATF has the authority to tax now-illegal machineguns. Al-
though it chooses not to allow tax payments or registration, it
still has the authority to do so. Thus, the basis for ATF's
authority to regulate-the taxing power-still exists; it is merely
not exercised. Second, the court noted that although the NFA was
originally upheld under Congress's taxing power, no one could
seriously contend that the regulation of machineguns could not also
be upheld under Congress's power to regulate interstate commerce.
We adopt the analysis of the Fourth Circuit. The NFA can be
upheld on the preserved, but unused, power to tax or on the power
to regulate interstate commerce. Since the provisions of the NFA
can be reconciled with the FOPA, the doctrine of implicit repeal
must be rejected.
Basically the ATF can refuse to do its job and that you can comply by not making machineguns, thus the NFA has not been implicitly repealed. Why is it that the government can refuse to do its job, which makes our acts illegal, and we are supposed to be ok with that? Why didn't they address the issue of whether manufacturing a weapon is a 2nd amendment right, i.e. to keep and bear you have to manufacture them? I guess the illegality of the act is supposed to be the reason not to do it even though that illegality is not based on firm constitutional grounds (i.e. 1986 FOPA is Interstate, NFA is tax, manufacture for self is not interstate) Is it that you can't show overwhelming need to manufacture a MG and thus you can not do it? IT isn't very specific.
Then the whoe part about whether Congress could regulate machine guns under interestate commerce. Of course, we say the 9th circuit overrule this logic and say that you can't broadly use the interestate commerce clause. How is it that they can say, hey it might not work under the original tax intent but we can say interestate commerce would cover it, even though all the transfers in this case were instate between the police departments. They don't even address that issue before they use the elastic interstate clause! I thought the coursts were supposed to balance Congressional power not provide them with an excuse for power.
Can anyone explain this reasoning a bit better to me?
From the judgement....
But 18 U.S.C. section 922(o), prohibiting post-1986
machineguns, can be reconciled with section 5861. Citing Minor v.
United States, 396 U.S. 87, 96-97, 90 S.Ct. 284, 288-89, 24 L.Ed.2d
283 (1969), for the proposition that Congress can tax illegal
conduct such as the sale of narcotics, the court concluded that the
prohibition of post-1986 machineguns does not mean that Congress
cannot tax them. Although it is illegal to possess or manufacture
these weapons, one illegally doing so would be required to register
them with ATF and pay taxes on them. And if ATF refuses to allow
registration or the payment of taxes, one can comply with section
5861(d) by not violating section 922(o), i.e., by not possessing or
manufacturing any post-1986 machineguns. Jones, 976 F.2d at 183
(citing Minor). [footnote 4] Thus, the Jones court rejected the
Tenth Circuit's view that compliance with section 5861 was
impossible and therefore that the statute was implicitly repealed.
Jones dealt with the taxing authority argument in two ways.
First, ATF has the authority to tax now-illegal machineguns. Al-
though it chooses not to allow tax payments or registration, it
still has the authority to do so. Thus, the basis for ATF's
authority to regulate-the taxing power-still exists; it is merely
not exercised. Second, the court noted that although the NFA was
originally upheld under Congress's taxing power, no one could
seriously contend that the regulation of machineguns could not also
be upheld under Congress's power to regulate interstate commerce.
We adopt the analysis of the Fourth Circuit. The NFA can be
upheld on the preserved, but unused, power to tax or on the power
to regulate interstate commerce. Since the provisions of the NFA
can be reconciled with the FOPA, the doctrine of implicit repeal
must be rejected.
Basically the ATF can refuse to do its job and that you can comply by not making machineguns, thus the NFA has not been implicitly repealed. Why is it that the government can refuse to do its job, which makes our acts illegal, and we are supposed to be ok with that? Why didn't they address the issue of whether manufacturing a weapon is a 2nd amendment right, i.e. to keep and bear you have to manufacture them? I guess the illegality of the act is supposed to be the reason not to do it even though that illegality is not based on firm constitutional grounds (i.e. 1986 FOPA is Interstate, NFA is tax, manufacture for self is not interstate) Is it that you can't show overwhelming need to manufacture a MG and thus you can not do it? IT isn't very specific.
Then the whoe part about whether Congress could regulate machine guns under interestate commerce. Of course, we say the 9th circuit overrule this logic and say that you can't broadly use the interestate commerce clause. How is it that they can say, hey it might not work under the original tax intent but we can say interestate commerce would cover it, even though all the transfers in this case were instate between the police departments. They don't even address that issue before they use the elastic interstate clause! I thought the coursts were supposed to balance Congressional power not provide them with an excuse for power.
Can anyone explain this reasoning a bit better to me?