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Thursday, January 12, 2012

The Hughes amendment and what do we do about it

It seems that Sebastian and I have a disagreement, although I feel that we're probably closer than we think. Sebastian wrote a post about the NRA and the Hughes amendment, one that gave the NRA credit for trying to get Hughes reversed (which I disagree with). The failure of the NRA to reverse Hughes apparently rests on the political climate, ignoring the fact that the House voted against the amendment.

My intial comment on the post was that the argument in the case Higgins v Farmer was weak, whether the NRA helped out or not. Relying on the ATF to interpret a law in a citizens' favor is a fools' errand. I also noted that the decision in US v Rock Island Armory is a much better argument against 922(o).

On this, Sebastian and I agree.

Where we start to go apart is that to me, the defect of 922(o) is fatal, while Sebastian merely notes that prosecutions for possession will simply go on under 922(o) (1) [possesion prohibited].

I believe that the court in US v Rock Island addressed this in passing, but didn't mention it specifically since it wasn't the question before the bar.

The court in Rock Island Armory made several references to the passage of the National Firearms Act, as well as it's re-enactment in 1968, and the constitutional questions that came up during deliberations. Repeatedly, the legislature conceded that that they had no police power to ban machineguns, but only the power to tax them:

In the 1934 hearings, Attorney General Homer S. Cummings explained in detail how the NFA would be based on the tax power. National Firearms Act: Hearings Before the House Committee on Ways and Means, 73rd Cong., 2d Sess., 6 (1934). Cummings denied that machineguns could be banned, because "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." Id. at 8.

When Congressman Harold Knutson 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," Congressman Sumners suggested "that this is a revenue measure and you have to make it possible at least in theory* for these things to move in order to get internal revenue?" Id. at 13-14. Cummings agreed: "That is the answer exactly." Id. at 14. The following dialogue ensued:

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. [emphasis added-pm]

So there at least was the recognition that machineguns could not be banned outright, lest the constitutional question be raised. The NFA '34 was constitutional only under congress' authority to raise revenue (tax).

Additionally, the court noted that upon re-enactment of the NFA with the passage of the Gun Control Act of '68, congress explicitly declined to enact a measure that would affect powers held by the states under the 10th amendment:

The National Firearms Act was reenacted as Title II of the Gun Control Act of 1968. Congress rejected a proposal that would not have been based on the power to tax. Fred B. Smith, General Counsel of the Treasury Department, noted that the proposal "would make it unlawful for a person under 21 years of age to possess a National Firearms Act firearm." Federal Firearms Act: Hearings Before the Subcommittee to Investigate Juvenile Delinquency, Judiciary Committee, U.S. Senate, 90th Cong., 1st Sess., 1088 (1967). Smith stated:

It seems doubtful that the ... provision can be justified under the taxing or commerce powers, or under any other power enumerated in the Constitution, for Federal enactment. Consequently, the Department questions the advisability of including in the bill a measure which could be construed as an usurpation of a (police) power reserved to the states by Article X of the United States Constitutional Amendments.

If the reader will remember, US v Miller hinged on the falsehood that short-barreled shotguns were not in use by the military (or related to the militia), and so was not entitled to 2A protection. This is demonstrably not true of machineguns as they are in common use in every military and militia the world over.

Therefore, it is my humble laymans' opinion, the absolute ban on machineguns could not withstand judicial scrutiny, and that at least 922(o) should be repealed and machineguns go back under regulation under the NFA.

Your comments are welcome.


*This passage indidcates me that the intent of the NFA was to make it as hard as possible to own machineguns and other NFA weapons by placing a confiscatory tax on the weapons.

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