Is the DC ban on Post 76 handguns legally identical to the Fed ban on post 86 MG's

[Guitargod1985]

You are charged with violating 922(o) (in the GCA) not the NFA.

922(o) is in the '86 FOPA not the '68 GCA.

 

[Kharn]

Guitargod1985:
The Hughes Amendment altered the 1968 GCA, but was passed into law as a portion of the 1986 FOPA.

IIRC, the '68 GCA also restructured the entire '34 NFA under new sections/headings while keeping the same crimes, so you're charged under violating the '68 GCA for NFA violations rather than the '34 or '86 laws.

Kharn

 

[LAR-15]

922(o) is part of the GCA (criminal law)

The NFA is tax law.

 

[Sam Adams]

Lar-15

Here ya go:

# United States v. Rock Island Armory (1991) [23] - United States District Court ruling one cannot be prosecuted for 1934 National Firearms Act violations for machineguns produced after 1986:

"...since enactment of 18 U.S.C. § 922(o), the Secretary has refused to accept any tax payments to make or transfer a machinegun made after May 19, 1986, to approve any such making or transfer, or to register any such machinegun. As applied to machineguns 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National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional."

OK, so what happened with the Rock Island case? Here's what I've found (in real English, as opposed to Legalese, at http://www.nraila.org/Issues/FactSheets/Read.aspx?ID=130):

Rock Island Armory was charged with manufacturing "machineguns" in 1987 and 1988 in violation of the registration requirements of the National Firearms Act. In U. S. v. Rock Island Armory, Inc. (773 F. Supp. 117, C.D. Ill. 1991), the chief judge of the U.S. District Court for the Central District of Illinois dismissed those charges because the NFA sections upon which they were based were "without any constitutional basis." The judge noted that the Supreme Court had previously ruled that the NFA`s registration requirement was constitutional only because it was enacted for the purpose of facilitating the collection of tax revenue. Thus, he concluded, because the Hughes Amendment had been interpreted as prohibiting the possession of fully-automatic firearms manufactured after May 19, 1986, the NFA`s registration requirement no longer served its tax collection purpose. The judge said that since "Congress has no enumerated power to require registration of firearms," the constitutional basis for the NFA registration provision no longer existed. The government initiated an appeal of the decision, but later requested that the appeal be dismissed, thus the Rock Island decision stands. In U.S. v. Dalton (960 F.2d 121, 10th Cir. 1992), the U.S. Court of Appeals for the 10th Circuit adopted the Rock Island precedent.

[Emphasis added by Sam Adams].

If you combine the above with your information (which I know to be true, but haven't dug up a source for) that:

...when the NFA was passed it was stated in the Congressional Record by the Roosevelt Administration that they wanted to ban machine guns outright but could not due to the Second Amendment. Hence the tax and register scheme of the NFA.

then you get an interesting result: The NFA only passed muster in the courts in the 1930's because it was a tax measure. The gun-ban freaks of the 1930's knew that an outright ban would be unconstitutional, so they added a tax. 922(o) banned the further registration of MGs, thereby removing the possibility of the government getting any tax revenue. It is at the same time both a gun ban AND a removal of the very thin veil that the tax put on the unconstitutionality of a ban. THAT is why the government never appealed Rock Island. Even in 1991, it knew that the case was a loser. Now, with the 2nd about to be ruled on both as a protection of pre-existing individual rights and the prohibition of bans on entire classes of arms, a case to defeat 922(o) should be a winner without much trouble.

The fact that we have no compelling governmental interest (given the low crime rates among legal MG owners) or, even if you concede that point, that the compelling interest is taken care of by way of the background check, etc. mandated in the NFA, takes any case that the government may have and shreds it. I'd even make the argument that the entire NFA background check and CLEO sign-off (which is easily outsmarted by creating a trust or a corporation) was simply a method of doing what NICS does now...and that therefore the '34 NFA registration requirements shouldn't even be allowed, since now we have NICS.

 

[Guitargod1985]

The Hughes Amendment altered the 1968 GCA, but was passed into law as a portion of the 1986 FOPA.

IIRC, the '68 GCA also restructured the entire '34 NFA under new sections/headings while keeping the same crimes, so you're charged under violating the '68 GCA for NFA violations rather than the '34 or '86 laws.

OH. My mistake.

 

[ServiceSoon]

I don't think so.

The DC ban is a ban on a class of firearms (handguns).

There is no federal ban on machine guns in the nominal sense.

However, I like where Sam Adams is going.

 

[Sam Adams]

Tube_ee

The DC law stipulated that if YOU did not own your legally-registered handgun prior to 1976, you can never legally own any handgun.

922(o) says that, unless THE GUN was manufactured prior to some date in 1986, that gun can never be legally owned.

Under 922(o), any gun legally registered before the cut-off date can be transferred to another owner, assuming that that transfer complies with the NFA. Under DC's law, if you legally own a handgun, because you owned it before 1976, you cannot legally transfer it to anyone else.

In other words, the DC law is about YOU, and 922(o) is about THE GUN. They are similar, true, but there is a fundamental difference between them. That difference is far larger than the typical differences that put lawyers behind the wheels of Mercedes.

It's not a matter of cut-and-paste, folks.

I agree, but also disagree. Yes, you're correct that different things are technically addressed. However, the net effect of both laws is:

If you haven't registered one of the subject guns by the cutoff date, you can never, ever, ever register it and, therefore, it is prohibited for you to ever own it.

The DC law is, indeed, harsher - because the gun is tied to the person. However, it is also tied to the gun. It isn't as if a person who registered pre-ban can go out and buy new handguns - the cutoff is the cutoff in both cases. That the DC law is even harsher (no trading in pre-bans), means that it is virtually certain to go down. However, IMHO, it is damned near a "cut and paste" job because of the glaring similarity between the 2 laws.

Also, regarding the MG ban, the government can't say that MGs are "so inherently dangerous" that they should be banned from civilian ownership. Why? Because they still allow civilians to own them (after some hoops are jumped through, of course, and limited to jurisdictions that allow it). In fact, as pointed out elsewhere on this thread and a hundred like it all over the Internet (and even as pointed out by the head of BATF in testimony), owners of legal MGs commit so few crimes with the MGs as to make it a non-event for law enforcement.

What really, really sticks out in my mind is that a person who legally owns (for example) an M16 that was manufactured and registered on 5/18/86 is prohibited from owning an M16 manufactured with the same exact features in the same exact factory during the same exact production run a mere 2 days later. How does that even pass a Rational Scrutiny test? How does that make the country any safer?

I think that we win on this. It is a matter, just like Heller, of getting the right plaintiff(s). I like the owner (who is highly respected, of impeccable character, etc., etc.) of a pre-ban MG applying to own a virtually identical gun that is post-ban, and being turned down. Another good candidate would be a serviceman returning from Iraq or Sh itholeistan, and applying for the tax stamp to buy the same exact arm that the government trusted him to not only possess, but to carry and to shoot ONLY Certified Bad Guys.

My biggest worry, after winning Heller with a Strict Scrutiny standard of review, is that the Congress may say (after the SC rules 922(o) to be unconstitutional), "OK, you can have your MGs back - the Court says the NFA Registry is open. But now the tax stamps cost $10,000.00." Having a Republican President may help us, and certainly the current fight between Hillary and Obama is going to split the Dems and result in less of them being elected this November.

 

[Sam Adams]

ServiceSoon

I don't think so.

The DC ban is a ban on a class of firearms (handguns).

There is no federal ban on machine guns in the nominal sense.

See my #32. I think that the fact that there is no federal ban on MGs actually helps us (by removing any hope of the gov't saying that it has a compelling interest in banning only post-'86 MGs).

 

[tube_ee]

If you haven't registered one of the subject guns by the cutoff date, you can never, ever, ever register it and, therefore, it is prohibited for you to ever own it.

There's nothing in 922(o) that prevents you from registering a pre-1986 MG if you didn't own it before 1986. Perhaps I'm misreading you here.

It is a matter, just like Heller, of getting the right plaintiff(s). I like the owner (who is highly respected, of impeccable character, etc., etc.) of a pre-ban MG applying to own a virtually identical gun that is post-ban, and being turned down.

On this, we agree. My point was in answer to the OP's question. As I read the relevant statutes, they are not "legally identical." They are certainly similar, and the ideal plaintiffs and legal arguments used would doubtless reflect that similarity, but there are a lot of lawyers who've made a lot of money making seemingly very similar things seem to be very different from one another. Consider any legal fight between two companies over the meaning of a contract between them. Millions of dollars have changed hands over the meaning of a single comma. Splitting hairs is a required course in any law school. Any lawyer worth his BMW can split the same hair at least 15 different ways. I can't do that... I'm an engineer, not a lawyer.

That's why I said "it's not cut and paste." Because that argument has been made here, and it's wrong. Believing that this will be easy is the first step in losing.

Me... I think the next step will be Incorporation, via a challenge to the Chicago ban. Could the Court issue a ruling in Heller that defines the 2nd Amendment as protecting an individual right, incorporates that right to the States, and applies "strict scrutiny" as the standard of review for that right? That would be the absolute best ruling we could get, and would put the 2nd on the same legal plane as the 1st, (where it belongs,) but they'd have to go beyond the immediate case at hand to get there.

--Shannon

 

[Kharn]

tube ee:
The 1968 GCA cut off registrations of already-existing MGs, since that year all MGs must have the tax paid before they are manufactured if done by a Form1 (or be reported after the fact by the SOT that manufactured it).

Kharn

 

[LAR-15]

Don't forget even police officers and nuclear security- while they can be issued machine guns by their departments or on the job- cannot get post guns personally.

Can 922(o) be a hindrance to national security and preservation of the militia?

 

[EOTechRulesAll]

Homemade machine guns...


http://en.wikipedia.org/wiki/United_States_v._Stewart_(2003)




The Supreme Court sidestepped this and simply referred them to other rulings/decisions.

 

[Crosshair]

My biggest worry, after winning Heller with a Strict Scrutiny standard of review, is that the Congress may say (after the SC rules 922(o) to be unconstitutional), "OK, you can have your MGs back - the Court says the NFA Registry is open. But now the tax stamps cost $10,000.00." Having a Republican President may help us, and certainly the current fight between Hillary and Obama is going to split the Dems and result in less of them being elected this November.

I think we might be able to cite the 1983 "Minneapolis Star v. Minnesota Commissioner of Revenue" supreme court case as precedent against that. It was an 8-1 decision too, not some borderline 5-4.

In a nutshell, the state of Minnesota levied a tax on publishers for paper and ink used in the printing of their material. The Supreme Court ruled that the State of Minnesota could not provide justification for singling out the press. The mere POTENTIAL for possible future abuse was reason enough to strike down the law.

I believe these are relevant parts of the ruling. The link above has the rest.

Minnesota has offered no adequate justification for the special treatment of newspapers. Its interest in raising revenue, standing alone, cannot justify such treatment, for the alternative means of taxing businesses generally is clearly available. And the State has offered no explanation of why it chose to use a substitute for the sales tax rather than the sales tax itself.

A rule that would automatically allow the State to single out the press for a different method of taxation as long as the effective burden is no different from that on other taxpayers or, as Minnesota asserts here, is lighter than that on other businesses, is to be avoided. The possibility of error inherent in such a rule poses too great a threat to concerns at the heart of the First Amendment.

From what I see here using my "Internet Law Degree". The argument of "raising revenue" is not justification for these laws considering that alternatives, like the sales tax, perform the same function more fairly without unjustifiably singling out the press. (A constitutionally protected group.) Even rules that would theoretically make the tax burden equal with other business pose too much of a risk to the 1st amendment to be justified.

Minnesota's ink and paper tax violates the First Amendment not only because it singles out the press, but also because it targets a small group of newspapers. The effect of the $100,000 exemption is that only a handful of publishers in the State pay any tax at all, and even fewer pay any significant amount of tax. To recognize a power in the State not only to single out the press but also to tailor the tax so that it singles out a few members of the press presents such a potential for abuse that no interest suggested by Minnesota can justify the scheme.

The Minnesota law only affected a small number of publishers. The law essentially singled out certain members of the press. This could work in our favor as well. Not only would exessive NFA taxes theoretically fail under the "raising revenue" argument. It could fall under the "unfairly targets the members of a group". In this case, a $10,000 NFA tax stamp would unfairly target people wishing to own select fire guns over people wishing to own non-select fire guns. (The ability of the people to bear arms also being a constitutionally protected group. Again, we need to wait for the final ruling of DC vs Heller.)

There may be flaws in my thinking so please point them out. But I think, depending on how the ruling of Heller turns out, that with the 2nd declared an individual right AND the "Minneapolis Star v. Minnesota Commissioner of Revenue" case forbidding the passage of taxes that specifically and unfairly target a constitutionally protected group. We should at least be able to prevent what you fear from happening.

Google "Minneapolis Star v. Minnesota Commissioner of Revenue" for more links.

 

[Sam Adams]

Tube_ee

There's nothing in 922(o) that prevents you from registering a pre-1986 MG if you didn't own it before 1986. Perhaps I'm misreading you here.

I think you are misreading me. By "the subject guns" I meant post-5/19/86 manufactured MGs. Those are, as we all know, non-transferrable except between Class 3 dealers and various government agencies. If'n you didn't timely register a MG produced prior to that cut-off date, you will never, ever be able to register it (unless the law changes or is ruled unconstitutional, of course).

 

[Sam Adams]

Crosshair

I largely agree with your reasoning. I would also rely on Murdoch v. Pennsylvania (summary at http://nesara.org/court_summaries/murdoch_v_pennsylvania.htm with a link to the actual text). Here's the meat of the issue:

Murdoch v. Pennsylvania, 319 U.S. 105 (1943)

A case in which a group of Jehovah’s Witnesses were charged in the City of Jeannette, Pennsylvania with violating a local ordinance of selling wares without obtaining a license and paying the associated tax.

The materials being “sold” were religious booklets, pamphlets, and tracts. The materials were not actually sold, but by practice members of the groups simply requested a suggested donation. This door-to-door effort of sharing literature was seen as part of their evangelical efforts.

The Supreme Court agreed that such efforts were protected by the Constitution’s First Amendment. The Court also noted that some effort must be made to distinguish when religion is being practiced and when a commercial activity is being exercised.

The Court did not deny that all religious groups were exempt from government financial obligations and duties.

With those distinctions, the Court noted that this particular license tax was, “a flat tax imposed on the exercise of a privilege granted by the Bill of Rights. A state may not impose a charge for the enjoyment of a right granted by the federal constitution. Thus, it may not exact a license tax for the privilege of carrying on interstate commerce, although it may tax the property used in, or the income derived from, that commerce, so long as those taxes are not discriminatory… The power to impose a license tax on the exercise of these freedoms is indeed as potent as the power of censorship which this Court has repeatedly struck down.” [Emphasis added by Sam Adams].

Of course, if 5 black-robed people decide to decide a case differently than what even a large majority of the people of this country think should be done, then that majority is screwed...witness the Kelo decision. We have recourse, but that recourse consists of either Congressional action or a new amendment to the Constitution. If the former were possible, then the case likely wouldn't end up in court, and the latter is extraordinarily difficult. I would be shocked, for example, if in reaction to a bad (i.e. collective rights) decision in Heller, the Congress passed by 2/3 majority in each house an amendment clarifying the 2nd in such a way as to guarantee a very broad individual rights meaning...let alone that 38 states would ratify it. Only a VERY severe political counter-reaction to the case, which produced large pro-gun majorities in the Congress, could start the ball rolling. The good news is that the antis stand even less of a chance of passing an amendment enshrining their twisted beliefs.