Sam Adams
Member
A fundamental right cannot be subjected to onerous regulation, be that via permitting, taxation, bureaucratic regulation (red tape), executive order, or other governmental aim intended to frustrate that right.
See the First Amendment lines of litigation for details on all of the above power plays having been frustrated by its defenders. There is still regulation of free speech and religious practice, but it is largely invisible in daily life and mostly concerned with the extremes (parade/protest permits, animal sacrifice, religious drug use, how much money is too much in the political process.)
A seminal case in preventing the taxation of a basic right is Murdock v. Pennsylvania, 319 U.S. 105 (1943) http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=319&page=115
This would seem to also argue against the NFA tax.
Of interest on the issue of the NFA's constitutionality is the following: even IF it was originally a tax, what does it say that the government has forbidden the collecting agency from accepting further tax payments (under 922(o))? This says VERY clearly to me that the '86 ban is purely regulatory/a ban in nature on a basic right, and that it is therefore unconstitutional. Result: 922(o) gets overturned...IF Parker is either unheld with comment, upheld without comment or cert. denied. The only bad result would be if it is overturned by the Supremes - with the explanation that the 2nd doesn't protect an individual right (I don't see it being over-ruled without comment - that just wouldn't/couldn't be done in a case involving one of the 1st 10 Amendents where the Court has a very spotty and empty record).
I personally see the Court taking the case (there is a conflict between Circuits on the 2nd) if it is appealed, and I see a very narrow upholding of the case (DC is toast on this issue-they're way beyond the pale). But the ONLY way to uphold it is to confirm that the 2nd protects an individual right. If that happens, 922(o) is next on the chopping block, and that ban is going to fall. If cert. is denied, 922(o) can and will still be challenged - and when someone is denied their approval the case will have to wind its way to the USSC. THEN we'll have a decision, even if it is by-passed in the Parker case. The best person to bring it is someone in the 5th Circuit, which has ruled in favor of the 2nd as a protection of individual rights, since the 5th incorporates several states which (unlike DC) permit the ownership of full autos and also have Class 3 dealers who can sell these firearms.
WRT the politics of '08 and the composition of the Court, I'm not terribly pessimistic. I don't view a Dem win in '08 as a foregone conclusion - who are the front-runners? Hillary, who has 40+% of the people in the passionate "I hate her guts" column, which is hardly conducive to being elected, and Osama, errr, Obama, who has all of 3 years experience in the US Senate (no executive experience at all), and who is profoundly liberal. No, this is a generally conservative country, and the big city libs aren't a shoe-in even though the media loves them and constantly shills for them. Further, as was mentioned by others, who is most likely to retire (or die, let's be honest)? Stevens, age 87 and extremely liberal, and Ginsburg,
age 74 and with cancer, who is also extremely liberal. Thus, even if Hillary wins, how will that improve the Court for the anti-gun side? Further, Parker would have already been heard and decided by the time of the election next November - so the '08 politics wouldn't directly impact this case in any event.