Time: Tue May 27 07:31:59 1997 by primenet.com (8.8.5/8.8.5) with SMTP id GAA10277 for [address in tool bar]; Tue, 27 May 1997 06:50:46 -0700 (MST) Delivered-To: liberty-and-justice-outgoing@majordomo.pobox.com Date: Tue, 27 May 1997 07:28:29 -0700 To: (Recipient list suppressed) From: Paul Andrew Mitchell [address in tool bar] Subject: L&J: SLF: good review of 2nd Amendment court cases >Date: Tue, 27 May 1997 07:17:03 -0700 >To: (Recipient list suppressed) >From: Paul Andrew Mitchell [address in tool bar] >Subject: SLS: U.S. v. Constantine, 296 U.S. 287, 294 (1935) > >This is an excerpt from a document entitled "Second Amendment >Related Court Cases" at http://www.nysrpa.org/e&tcourt.htm: > >[begin excerpt] > > This issue was again resolved adverse to the government in >United States v. Constantine, 296 U.S. 287, 294, 56 S.Ct. 223, <--- >226, 80 L.Ed. 233 (1935). A statute provided for a federal >assessment for one who violated a state liquor law. The Court >held that it would be invalid "if, in fact, its purpose is to >punish rather than to tax." Id. No federal jurisdiction existed >to enforce alcohol Prohibition, because the Eighteenth Amendment >had been repealed. Id. Similarly, no federal jurisdiction exists >to ban mere possession of machine guns, and the NFA provisions at >issue are not supported by the tax power to the extent they >enforce a prohibition rather than taxation. As Constantine held, >"a penalty cannot be converted into a tax by so naming it ...[W]e >hold that it is a penalty for the violation of State law, and as >such beyond the limits of federal power." Id. The Court >explained: The condition of the imposition is the commission of a >crime. This, together with the amount of the tax, is again >significant of penal and prohibitory intent rather than the >gathering of revenue. Where, in addition to the normal and >ordinary tax fixed by law, an additional sum is to be collected >by reason of conduct of the taxpayer violative of the law, and >this additional sum is grossly disproportionate to the amount of >the normal tax, the conclusion must be that the purpose is to >impose a penalty as a deterrent and punishment of unlawful >conduct. We conclude that the indicia which the section exhibits >of an intent to prohibit and to punish violations of State law as >such are too strong to be disregarded, remove all semblance of a >revenue act and stamp the sum it exacts as a penalty. In this >view the statute is a clear invasion of the police power, >inherent in the States, reserved from the grant of powers to the >federal government by the Constitution. Id. at 295-96, 56 S.Ct. >at 227. It is well established that Congress may tax both legal >and illegal activities. Marchetti v. United States, 390 U.S. 39, >44, 88 S.Ct. 697, 700, 19 L.Ed.2d 889 (1968).4 Gambling and other >acts which may be illegal under state law may be taxed, and >registration may be required to assist in collection of the tax >as long as registration information is not shared with the >police, since such sharing would violate the privilege against >self-incrimination. Id. Registration is among the "ancillary >provisions calculated to assure their [i.e., the taxes] >collection."5 Id. at 42, 88 S.Ct. at 699. In contrast with the >federal taxation and registration of conduct made illegal under >state law, which the courts have upheld, the case at bar involves >federal taxation and registration requirements which the >government interprets as repealed by a federal statute making >post-1986 machine guns illegal. In short, the government >registers gamblers and accepts their tax payments; it refuses to >accept registrations and tax payments for the making of machine >guns. > > The prosecution also asserts that "machine guns may still be >manufactured, and therefore taxed, under 18 U.S.C. >s922(o)(2)(A)." Response at 6. Yet, the government has >successfully argued that that provision allows manufacture only >for official government use. Farmer v. Higgins, 907 F.2d at 1042- >44. Manufacture for government use is exempt from any tax. 26 >U.S.C. ss5852, 5953. Also, this argument fails to address the >fact that the United States refuses to register any post-1986 >machine guns, thereby severing any tax nexus for this >registration requirement, with which compliance is impossible. In >its motion to reconsider, the prosecution reiterates that the >government can tax an item or activity which is illegal. Yet, the >very framing of this proposition presupposes that the activity >can and will be taxed. By contrast, in the case at bar, the >government interprets 18 U.S.C. s922(o) to prevent the >registration and taxation of post-1986 machine guns made for >private purposes under the National Firearms Act, 26 U.S.C. s5801 >et seq. The prosecution relies on Marchetti v. United States, >supra, 390 U.S. at 44, 88 S.Ct. at 700, which held that reporting >requirements for taxation of illegal gambling may not violate the >privilege against self-incrimination. Yet, implicit in Marchetti, >is the rationale that registration provisions are Constitutional >if and only if they assist in collection of revenue. As Marchetti >states: The taxes are supplemented by ancillary provisions >calculated to assure their collection. In particular, s4412 >requires those liable for the occupational tax to register each >year with the director of the local internal revenue district. >Id. at 42, 88 S.Ct. at 699. Illegal gamblers are allowed to >register and pay the tax. Alleged makers of machine guns after >1986 are not. The prosecution also relies on dictum in a footnote >in Minor v. United States, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d >283 (1969), which held that a reporting requirement by drug >buyers does not violate a drug seller's privilege against self- >incrimination. The prosecution, relying on a statement in the >dissenting opinion (396 U.S. at 100, 90 S.Ct. at 290), claims >that it was impossible to pay the drug tax in that case. The Act >in question required dealers to register with the Internal >Revenue Service and pay a special occupational tax, and required >producers or importers to purchase stamps and affix them to the >package. Registered dealers could secure order forms to transfer >drugs. Id. at 94, 90 S.Ct. at 287. While the Court focused on the >self-incrimination issue, it noted that "there were some 400,000 >registered dealers under the Harrison Narcotics Act in 1967 and >that registered dealers can readily get order forms issued in >blank." Id. at 97, 90 S.Ct. at 289. As the Court noted, a tax >measure is valid even though it may deter an activity, revenue is >negligible, or the activity may be illegal. 396 U.S. at 98 n. 13, >90 S.Ct. at 289 n. 13.6 Indeed, since being passed in 1934, the >National Firearms Act has imposed occupational taxes, making and >transfer taxes of $200 per firearm, and stringent registration >requirements. Yet, these taxation requirements did not amount to >a prohibition, and registration retained a tax nexus. In any >event, the interpretation of the Constitutional basis of the >specific statute in this case is governed by Sonzinsky v. United >States, supra, 300 U.S. 506, 57 S.Ct. 554 and its progeny, not by >dictum in a footnote in an unrelated narcotics case. Sonzinsky >held that "the mere registration provisions ... are obviously >supportable as in aid of revenue purpose." Id. at 513, 57 S.Ct. >at 555. Haynes v. United States, supra, 390 U.S. at 87, 88 S.Ct. >at 725, repeated that the National Firearms Act is a tax measure, >and that registration is "calculated to assure [tax] collection." >Id. at 88-89, 88 S.Ct. at 725-26. The Act was described as a tax >measure again in United States v. Freed, 401 U.S. 601, 602-03, 91 >S.Ct. 1112, 1114-15, 28 L.Ed.2d 356 (1971). The enactment of 18 >U.S.C. s922(o) in 1986 removed the Constitutional legitimacy of >registration as an aid to tax collection. This is because the >government interprets and enforces s922(o) to disallow >registration, and refuses to collect the tax. Farmer v. Higgins, >907 F.2d 1041, 1042-44 (11th Cir.1990), cert. denied, ---U.S.---, >111 S.Ct. 753, 112 L.Ed.2d 773 (1991). Thus, s922(o) undercut the >Constitutional basis of registration which had been the rule >since Sonzinsky. Finally, the prosecution quotes an enactment >passed in 1968 that the provisions of Title I of the Gun Control >Act shall not modify or affect the National Firearms Act.7 >However, the 1968 Congress cannot bind the Congress of 1986, >which decided to ban transfer and possession of machine guns. >P.L. 99-308, 100 Stat. 453 (May 19, 1986).8 Further, a >congressional declaration in 1968 does not solve a Constitutional >problem which arose in 1986. The ban enacted in 1986, and the >government's refusal to accept registrations and tax payments, >simply left the registration requirements with no Constitutional >basis. It is the duty of the judiciary to declare such laws >unConstitutional. Marbury v. Madison, 1 Cranch. 137, 176-77, 2 >L.Ed. 60 (1803). In sum, since enactment of 18 U.S.C. s922(o), >the Secretary has refused to accept any tax payments to make or >transfer a machine gun made after May 19, 1986, to approve any >such making or transfer, or to register any such machine gun. As >applied to machine guns made and possessed after May 19, 1986, >the registration and other requirements of the National Firearms >Act, Chapter 53 of the Internal Revenue Code, no longer serve any >revenue purpose, and are impliedly repealed or are >unConstitutional. Accordingly, Counts 1(a) and (b), 2, and 3 of >the superseding indictment are DISMISSED. > >[end excerpt] > > # # # > > ======================================================================== Paul Andrew, Mitchell, B.A., M.S. : Counselor at Law, federal witness email: [address in tool bar] : Eudora Pro 3.0.1 on Intel 586 CPU web site: http://www.supremelaw.com : library & law school registration ship to: c/o 2509 N. 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