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Monday, February 18, 2013

NFA bleg ...

Does anyone know what the difference is (if any) between an NFA background check and a 'normal' background check? I've had a few things moving around in my brain and I'm curious.

First off, I've never obtained an NFA item so I'm not knowlegable about that stuff. I'm thinking that since the NFA is primarily a revenue vehicle, there should be no background check even though I know that's not how it works.

But then, consider that a corporation or trust can obtain NFA items; how can you background check a constructed entity? You really can't. But if that's the case, why does it take so fucking long to get the stamp back?

Liquor producers don't have to wait months to get the stamps placed on their bottles, why should NFA purchasers (and I know it's to discourage NFA purchases)?

Here's where I'm going with this.

During the hearings preceding the passage of the NFA, AG Cummings asserted that "we have no inherent police power to go into certain localities and deal with local crime. It is only when we can reach those things under ... the power of taxation, that we can act."  Congressman Harold Knutson then asked "why should we permit the manufacture, that is, permit the sale of the machine guns to any one outside of the several branches of the Government," and Congressman Sumners chimed in asking "that this is a revenue measure and you have to make it possible at least in theory [emphasis added] for these things to move in order to get internal revenue?". The AG responded "That is the answer exactly." Here is the conversation that followed:

Attorney General CUMMINGS.... If we made a statute absolutely forbidding any human being to have a machine gun, you might say there is some constitutional question involved. But when you say, "we will tax the machine gun," ... you are easily within the law.
Mr. LEWIS. In other words, it does not amount to prohibition, but allows of regulation.
Attorney General CUMMINGS. That is the idea. We have studied that very carefully.¹
 So from the beginning of the NFA, the government admitted that they had no police power authority to ban machineguns; only the power to tax them (that they levied a confiscatory tax was the real purpose - de facto prohibition of machineguns). Indeed, the US AG stated that outright prohibition would provoke a constitutional question. So if that was true then, why is it not true now?

This post from Bob Owens touches on this very issue, linking an article by William J Watkins that questions whether congress even has the authority to regulate firearms as some intend, and that is a question we should be asking our representatives (I know they'll scream Commerce Clause!)². But we need to let them know that we're getting educated and we're watching.

So, back to the NFA. The architects of the NFA didn't think they had the authority under the constitution to ban machineguns, but could prohibitively tax them. Yet, congress banned post-May 1986 machineguns by all but government agencies with the FOPA (how's that working out for NJ residents?), perhaps asserting police powers not delegated to congress, but rather to the states. The GCA and NFA give ultimate jurisdiction over the ownership of firearms to the states; that is, if a particular firearm is prohibited by your state then they cannot be owned even though they may be allowed by federal regulation. Doesn't this show the supremacy of state police power?

I've always thought it a bit circular that the NFA will allow a GA resident (me) to transfer a machinegun as long as GA allows it, but GA will allow me to transfer a machinegun as long as the NFA allows it. Does anyone know who's in charge here?!

I'm no constitutional attorney, but it seems to me that the Hughes amendment is ripe for a challenge based on the police powers that the NFA assumes, but that were not delegated to the federal government. The historical record of the NFA shows (and SCOTUS cases reinforce) that the federal government has the power to tax a thing but not necessarily the power to prohibit it, especially since the right to keep and bear arms is an constitutionally enumerated right. The holding in Miller obliquely confirms that machineguns are constitutionally protected it would not be difficult at all to show that machineguns are part of the equipment of the military. The only hurdle that might be hard to overcome would be the 'common use' metric, even though it could be argued that just as the $200 tax was not as much as a barrier in in 1986 as in 1934, Congress banned the transfer of new machineguns.³

In the current political climate regarding firearms, the states are starting to push back against federal over-reach and that's a good thing. Since there are currently only 8 states that absolutely ban machineguns, I think it's high time that the federal government be instructed in how things are supposed to go.
who agrees?


¹ quotes taken from the decision in US v Rock Island Armory
² if you happen to see your rep in person and he claims the commerce clause justifies gun bans, tell him politely but firmly, "With all due respect, that is horse shit!"
³ The usinflationcalculator shows that $200 in 1934 is worth $3426 now, and was worth $1635 in 1986 - $200 is a bargain.

1 comment:

Old NFO said...

It goes via LEO channels rather than from the FFL. Takes longer too, as they check ALL databases, not just NICS.