Suck My Glock
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Somehow I missed this article back in April. Someone just pointed it out to me, and when I read it,...I had a Keaneu Reeves moment where I went "WHOA!!"
The defendant, Bronsozian, in California (9th Circuit) had been prosecuted for possession and transfer of a machinegun under 26 U.S.C. 5861(d).
As everyone here likely knows, Congress has no power to ban guns, but merely the power to tax them. And it is under that taxing authority that machineguns and other NFA items are regulated.
Prior to 1986, an individual could legally manufacture their own machinegun and pay the tax, entering it into the NFA registry. But in the legislation Congress passed in the FOPA86', ATF was ordered to no longer accept tax payments and/or applications for machineguns. This capped the supply of MGs available for civilian purchase and possession, causing the incredible inflation of values in MG prices since then.
It has been argued among gun lawyers since that time that the NFA SHOULD be unenforceable if no tax is collected, because it is under tax authority that anything is regulated in the first place. If there is no tax collected, there is no purpose in enforcement of tax regulations that essentially cease to exist. That seems logical enough. But logic has nothing to do with government and especially gun control. In 1996 the 9th circuit ruled on this argument in U.S. v. Hunter and has used it to shoot down that point of view ever since,...although the refusal to collect tax argument has never yet made it to the Supreme Court.
Brosnozian is arguing that because the government is not collecting a tax, they are not imposing it, and if not imposing it, have abdicated any claim to punish for those who would have been liable for such tax if collection was ongoing.
Enter the case Texas v. U.S., wherein 20 Republican state attorneys general and Republican governors from Texas, Wisconsin, Alabama, Arkansas, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Maine, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Utah, and West Virginia filed in February 2018 a lawsuit challenging the constitutionality of the individual mandate of Obamacare. The 5th Circuit struck the ACA down, and it was appealed to the Supreme Court and will be heard this October.
The Supreme Court in March granted certiorary (agreed to hear) the Obamacare case. A month later, it also granted cert to Brosonzian (which is had to do to take any action other than refusing to hear it) but then took the odd step of vacating the judgement against him and remanding the case back to the 9th Circuit for the purpose of dismissing the indictment. The Supreme Court almost never does this, and the last time was 40 years ago. Usual practice is to render a decision and set a precedent.
Hmmmmm. Why did the Supreme Court take this action?
Read here an excerpt from the article;...
https://www.cato.org/blog/doj-dismisses-indictment-machine-gun-prosecution-preserve-its-obamacare-arguments
Why did the SG take this strange course? Believe it or not, ongoing Obamacare litigation is the most likely explanation. In Texas v. United States, which the Supreme Court agreed to hear but which now likely won’t be argued till the fall, the federal government argues that the Affordable Care Act, which no longer raises revenue, cannot be construed as imposing a tax.
Well, the National Firearms Act no longer raises revenue, because the government won’t collect the payment. Bronsozian argued that his provision cannot be sustained under NFIB v. Sebelius, the 2012 case that upheld the individual mandate after reconstruing it as a tax. As a result, DOJ would’ve had to argue that the National Firearms Act, which raises no revenue, must be construed as imposing a tax, while arguing that the no‐longer‐revenue‐raising ACA cannot be construed that way.
Perhaps the easier path was to simply dismiss the indictment to sustain the Obamacare case. Our kudos to Mr. Bronsozian, and his counsel John Littrell, for securing an unusual win for constitutional governance by forcing the government into that pretzel.
Sooooo,...depending on how the language of the decision of the court on Texas v. U.S. this October,...perhaps there might be within it statements about what is a tax or not a tax if no revenues are collected. If so, this could be critically important to undoing the NFA.
The defendant, Bronsozian, in California (9th Circuit) had been prosecuted for possession and transfer of a machinegun under 26 U.S.C. 5861(d).
As everyone here likely knows, Congress has no power to ban guns, but merely the power to tax them. And it is under that taxing authority that machineguns and other NFA items are regulated.
Prior to 1986, an individual could legally manufacture their own machinegun and pay the tax, entering it into the NFA registry. But in the legislation Congress passed in the FOPA86', ATF was ordered to no longer accept tax payments and/or applications for machineguns. This capped the supply of MGs available for civilian purchase and possession, causing the incredible inflation of values in MG prices since then.
It has been argued among gun lawyers since that time that the NFA SHOULD be unenforceable if no tax is collected, because it is under tax authority that anything is regulated in the first place. If there is no tax collected, there is no purpose in enforcement of tax regulations that essentially cease to exist. That seems logical enough. But logic has nothing to do with government and especially gun control. In 1996 the 9th circuit ruled on this argument in U.S. v. Hunter and has used it to shoot down that point of view ever since,...although the refusal to collect tax argument has never yet made it to the Supreme Court.
Brosnozian is arguing that because the government is not collecting a tax, they are not imposing it, and if not imposing it, have abdicated any claim to punish for those who would have been liable for such tax if collection was ongoing.
Enter the case Texas v. U.S., wherein 20 Republican state attorneys general and Republican governors from Texas, Wisconsin, Alabama, Arkansas, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Maine, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Utah, and West Virginia filed in February 2018 a lawsuit challenging the constitutionality of the individual mandate of Obamacare. The 5th Circuit struck the ACA down, and it was appealed to the Supreme Court and will be heard this October.
The Supreme Court in March granted certiorary (agreed to hear) the Obamacare case. A month later, it also granted cert to Brosonzian (which is had to do to take any action other than refusing to hear it) but then took the odd step of vacating the judgement against him and remanding the case back to the 9th Circuit for the purpose of dismissing the indictment. The Supreme Court almost never does this, and the last time was 40 years ago. Usual practice is to render a decision and set a precedent.
Hmmmmm. Why did the Supreme Court take this action?
Read here an excerpt from the article;...
https://www.cato.org/blog/doj-dismisses-indictment-machine-gun-prosecution-preserve-its-obamacare-arguments
Why did the SG take this strange course? Believe it or not, ongoing Obamacare litigation is the most likely explanation. In Texas v. United States, which the Supreme Court agreed to hear but which now likely won’t be argued till the fall, the federal government argues that the Affordable Care Act, which no longer raises revenue, cannot be construed as imposing a tax.
Well, the National Firearms Act no longer raises revenue, because the government won’t collect the payment. Bronsozian argued that his provision cannot be sustained under NFIB v. Sebelius, the 2012 case that upheld the individual mandate after reconstruing it as a tax. As a result, DOJ would’ve had to argue that the National Firearms Act, which raises no revenue, must be construed as imposing a tax, while arguing that the no‐longer‐revenue‐raising ACA cannot be construed that way.
Perhaps the easier path was to simply dismiss the indictment to sustain the Obamacare case. Our kudos to Mr. Bronsozian, and his counsel John Littrell, for securing an unusual win for constitutional governance by forcing the government into that pretzel.
Sooooo,...depending on how the language of the decision of the court on Texas v. U.S. this October,...perhaps there might be within it statements about what is a tax or not a tax if no revenues are collected. If so, this could be critically important to undoing the NFA.
