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Date: Tue, 27 May 1997 07:28:29 -0700
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From: Paul Andrew Mitchell [address in tool bar]
Subject: SNET: SLF: good review of 2nd Amendment court cases
-> SearchNet's SNETNEWS Mailing List
>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had been repealed.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]
>
> # # #
>
>
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