Interesting developments in the Parker appeal

[publius]

Oh, and the '34 NFA itself has been defended by the Feds in the past under the guise of "its a tax-raising measure."

It clearly is not, it's a prohibition measure, just like the Marihuana Tax Act of 1937. Still, something else happened in 1937, and your argument was lost before the Supreme Court in the case of SONZINSKY V. UNITED STATES

 

[alan]

readers might find the following interesting.

Rewriting The Constitution, page 16, October American Rifleman.

 

[hugh damright]

I'm confused about something ... I thought that the only person who had standing had been denied a handgun permit ... meaning that there was no standing for the issue of how long guns must be stored ... yet they struck down the laws regarding the storage of long guns ... even though there was no standing?

 

[ctdonath]

Good question. This case is full of bizzare little twists like that.

Methinks the storage law applied to all guns, so even if Mr. Heller got his unissuable handgun permit he'd still have to keep it locked/unloaded/disassembled.

Other factor is that the six original plaintiffs brought the case as a whole; so long as one has standing, s/he carries the whole suit.

 

[alan]

Strikes me that Baba Louie, in post # 10 raises a most interesting point, for so far as I'm aware, the government of D.C. has long since denuded the jurisdiction of LEGAL outlets for firearms.

 

[geekWithA.45]

Someone pointed out that the bizarre standing rules seemed to apply only to gun laws, and questioned the legitimacy of that.

In just about every other body of law, the mere theoretical threat of prosecution was sufficient to grant standing.

For gun laws, though, it seems that in order to show standing, the state must have taken some postive again against you or your interests before you can even have your say.

In this case, the state having denied a permit, the plaintiff can now speak on several topics.

 

[alan]

geekWithA.45 points out a rather interesting discrepancy, see below.

Someone pointed out that the bizarre standing rules seemed to apply only to gun laws, and questioned the legitimacy of that.

In just about every other body of law, the mere theoretical threat of prosecution was sufficient to grant standing.

For gun laws, though, it seems that in order to show standing, the state must have taken some postive again against you or your interests before you can even have your say.

---------------------------

Re the above mentioned discrepancy, the question of HOW COME looms large, especially is the point raised is correct..

 

[Gifted]

Alan, that point's been addressed. The reason they went for the stricter standing rule was from previous precedent in that circuit. It's in conflict with most of the rest of the country, and in fact the other plaintiffs are putting together an argument that they should have had standing.

 

[txgho1911]

Sit down for this one. I may have to register there. Drop ideas on other issues I find ignored.
http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=118x149111

http://www.Democrats.org/page/community/post/Press+Next/CQbC

Some other maybe good maybe bad discussions and articles on the case.
Had to clean it up after digging some. Not all of these are very informative.
http://www.mdshooters.com/showthread.php?p=27711

http://cincinnatilaw.blogspot.com/2007_08_01_archive.html

http://www.truthtree.com/Guns/posts/13426.html

http://www.law.com/jsp/article.jsp?id=1185527215310

DCs AG website.
http://newsroom.dc.gov/show.aspx/agency/occ/section/2/release/11778/portal_link/cc

 

[Bartholomew Roberts]

Oh, REALLY?? How can you raise taxes by registering full autos when, in fact, another provision of the law states that it is illegal for the government to register full autos (which would be the only way to collect the tax, since evidence of the registration is in the form of a tax stamp that the owner of the gun obtains upon ponying up the $200).

Thoughts, anyone?

This argument was made as a due process argument (no Second Amendment angle) in the 10th Circuit in 1992 and was successful briefly. United States v. Dalton 960 F.2d 121 (10th Cir. 1992). The Fourth Circuit in United States v. Jones 976 F.2d 176 (4th Cir. 1992) rejected that ruling and instead decided you could avoid the tax conundrum by just not dealing in post-1986 machineguns, all circuits have since followed that precedent with regards to the due process impossibility defense raised by Dalton.

It is probably worth looking at the line of cases that cite Dalton just to see what type of arguments you might expect to see in a 922(o) challenge on Second Amendment grounds (assuming you get past the individual right issue and the reasonable regulation issue).

 

[ctdonath]

Ok, looked up the relevant bit. The DC Circuit court writes:

Finally, there is the District's requirement under DC Code 7-2507.02 that a registered firearm be kept "unloaded and disassembled or bound by trigger lock or similar device, unless such firearm is kept at [a] place of business, or while being used for lawful recreational purposes within the District of Columbia." This provision bars Heller from lawfully using a handgun for self protection in the home because the statute allows only for use of a firearm during recreational activities. As appellants accurately point out, 7-2507.02 would reduce a pistol to a useless hunk of "metal and springs." Heller does not appear to challenge the requirement that a gun ordinarily be kept unloaded or even that a trigger lock be attached under some circumstances. He simply contends that he is entitled to the possession of a "functional" firearm to be employed in case of a threat to life or limb. The District responds that, notwithstanding the broad language of the Code, a judge would likely give the statute a narrowing construction when confronted with a self-defense situation. That might be so, but judicial lenity cannot make up for the unreasonable restriction of a constitutional right. Section 7-2507.02, like the bar on carrying a pistol within the home, amounts to a complete prohibition on the lawful use of handguns for self-defense. As such, we hold it unconstitutional.

Ergo, if Mr. Heller seeks to get a handgun for self-defense, ruling that he can is pretty pointless if he is subsequently required to render it useless for that purpose. While Mr. Heller himself did not raise the point, it was raised in the overall appeal, and the judge recognized the relevance thereof and ruled appropriately.

While it might seem odd for the judge to address a point which a remaining plaintiff did not specifically raise (as the plaintiffs which tried to were denied standing), this only seems fair insofar as the other plaintiffs were not denied standing because the defendants (DC/Fenty) objected to their standing, but because the judge himself raised the standing issue (wrongly assuming the defendants would) and the defendants managed to muddle their way through questioning and talk the judge into actually denying standing.

 

[alan]

ctdonath:

Regarding your comments and various other aspects of the entire Washington D.C. gun ban, the more one looks at this thing, the more firmly one is convinced that the entire law is plainly and clearly an example of legislative PuPu Del Toro, please forgive my really terrible Spanish. Additionally, how The Congress (House and Senate) ever allowed so faulty a piece of legislation to become law, especially in view of the oath of office that all elected things take, is frankly beyond imagination, though perhaps my powers of imagination are sadly limited.

Bartholomew Roberts:

Respecting your post, and reference to the $200 tax stamp required, looking at history, in particular, the state of things in 1934, one thing is plain. That is, as has been previously noted by people much wiser than I, that the power to tax is the power to destroy.

The nation in 1934 was in a significant depression. $200 likely represented a couple of months income for those who were employed. Setting the tax at that level, along with the attendant paperwork hassle essentially put an entire class of firearms out of reach for most of the citizenry, despite the fact that The Constitution never authorized the congress to so legislate. Calling this legislation a "revenue raising measure" was pure sophistry, to use what might be an overly polite phrase. The 1934 act has been described as "welfare for Treasury Agents", which might well be exactly what it was, as the demise of Prohibition might have led to the layoff of government employees, perish the thought.

 

[LAR-15]

So basically if Parker passes not much changes as almost all handguns will still be banned 'machine guns'?

 

[damien]

So basically if Parker passes not much changes as almost all handguns will still be banned 'machine guns'?

Sure, just like they prevent blacks from voting by passing poll taxes or tests. Just like they stop newspapers by prior restraint.

Really, the courts are not this stupid. Once something is determined to be a right, courts see through obvious attempts to restrict that right.

 

[Tyris]

Government arbitrarily and incorrectly labeling 13 round pistols to be machine guns is basically fabricating a lie. Its akin to government determining that milk is a motor-oil, and is now illegal to feed to your baby, of course punishable by 10 years and a $250k fine.

Sorry DC, a Beretta 92 is NOT a machine gun any more than milk is an acceptable substitute for internal combustion engine lubricant.

I recall that Ohio has an equally stupid law for 31 round magazines.

-T

 

[Sam Adams]

Publius

I said: "Oh, and the '34 NFA itself has been defended by the Feds in the past under the guise of "its a tax-raising measure." "

You replied: It clearly is not, it's a prohibition measure, just like the Marihuana Tax Act of 1937. Still, something else happened in 1937, and your argument was lost before the Supreme Court in the case of SONZINSKY V. UNITED STATES

I don't that "my argument" was lost there. Here's the "money quote":

Here the annual tax of $200 is productive of some revenue. 1 We are not free to speculate as to the motives which moved Congress to impose it, or as to the extent to which it may operate to restrict the activities taxed. As it is not attended by an offensive regulation, and since it operates as a tax, it is within the national taxing power.

Here the Court said basically said that ANY tax, no matter what its level and regulatory effect, was OK constitutionally as long as it raises revenue. My argument is that Title 18, Section 922(o) prohibits the government from registering post-'86 full autos, and thereby prohibts the raising of any tax. Hence, the status of the '34 NFA as a "tax" under SONZINSKY evaporates.

 

[lacoochee]

The nation in 1934 was in a significant depression. $200 likely represented a couple of months income for those who were employed. Setting the tax at that level, along with the attendant paperwork hassle essentially put an entire class of firearms out of reach for most of the citizenry, despite the fact that The Constitution never authorized the congress to so legislate. Calling this legislation a "revenue raising measure" was pure sophistry, to use what might be an overly polite phrase. The 1934 act has been described as "welfare for Treasury Agents", which might well be exactly what it was, as the demise of Prohibition might have led to the layoff of government employees, perish the thought.

Here the Court said basically said that ANY tax, no matter what its level and regulatory effect, was OK constitutionally as long as it raises revenue.

Isn't the 200 dollar tax essentially the 2a equivalent of a poll tax? Obviously, at the time it was passed there was no way that the majority of the poor, wherein minorities were/are overrepresented -- I don't want to debate why, could remotely afford automatic (NFA) weapons. The only people who could and did own NFA items were the rich and upper-middle class who were mostly white with few exceptions.

Challenging the 1934 GCA on a civil rights basis would be warranted, wouldn't it?

 

[Blackbeard]

Challenging the 1934 GCA on a civil rights basis would be warranted, wouldn't it?

That's exactly what I plan to do as soon as I have a spare $50 million.

 

[ctdonath]

My argument is that Title 18, Section 922(o) prohibits the government from registering post-'86 full autos

That has already been addressed in a high court in the Rock River Arms case. Defendant was charged with not registering a post-'86 machinegun; court agreed with defendant that one cannot be held liable for not paying a tax which the gov't plainly refuses to accept per prohibitive law.

Isn't the 200 dollar tax essentially the 2a equivalent of a poll tax?

Yes - IF the 2nd Amendment is an individual right, which even now (Heller) is subject to allegedly reasonable debate. Once SCOTUS deems the 2ndA an individual right, then we can pursue the "poll tax" angle.

That's exactly what I plan to do as soon as I have a spare $50 million.

Word is the Heller case is funded to the tune of $25,000. Take out a home equity loan and get busy.

 

[Bubbles]

Word is the Heller case is funded to the tune of $25,000. Take out a home equity loan and get busy.

Are you sure? According to the Washington Post I would have expected the number to be higher, even with attorney Alan Gura working at a reduced rate.

 

[Kharn]

ctdonath:
United States v. Rock Island Armory was only a federal district court ruling, IIRC. Not very high, and binding only to those in that district (but that district is in IL, so it doesnt help anyone).

Kharn

 

[publius]

My argument is that Title 18, Section 922(o) prohibits the government from registering post-'86 full autos, and thereby prohibts the raising of any tax. Hence, the status of the '34 NFA as a "tax" under SONZINSKY evaporates.

You may be right, Sam, but being right isn't always enough, is it?

Besides, haven't they been relying on the commerce power, not the taxing power, to regulate guns since '68? The Stewart case was about building your own machine gun for personal use, and the Court said no dice in light of the Raich case.

 

[alan]

ctdonath writes in part:

Word is the Heller case is funded to the tune of $25,000.

---------------------

Re this, two questions.

1. What is the source of this "word"?
2. To whom might one send a contribution(s)?

 

[ozwyn]

If heller really ends up with a total Bill of $25,000 for a win, then it just might be dollar per dollar the best investment in firearm ownership rights in our lifetimes.

 

[legaleagle_45]

I have it on good authority that Heller's team is getting top notch assistance pro bono from some of the top legal minds in 2nd Amend jurisprudence... as well as some assistance from relatively unknown legal types who have shown an appitude for this type of thing.