10th Cir finds NFA requiring the registration of certain guns, is constitutional

[ArcadiaGP]

Decision here. Cites NFIB v. Sebelius.

https://www.ca10.uscourts.gov/opinions/17/17-3034.pdf

 

[T.Lex]

Not really a surprise.

 

[Tryin']

Interesting to me was the statement that silencers are entirely viewed as an accessory, not an actual “arm”, and therefore fall outside of the purview of the second amendment.

 

[Denny347]

Interesting to me was the statement that silencers are entirely viewed as an accessory, not an actual “arm”, and therefore fall outside of the purview of the second amendment.

That's not much of a surprise.

 

[GIJEW]

Regarding the validity of Kansas' SAPA act, exempting guns kept in Kansas from fed regulation, the court said ignorance of the law is no excuse. IIRC there is a concept called "lenity" which says that if a legal issue is vague and a reasonable person would assume an interpretation that the court says is wrong, that's still a valid defense. What does the INGO bar say about that?

 

[Fargo]

Regarding the validity of Kansas' SAPA act, exempting guns kept in Kansas from fed regulation, the court said ignorance of the law is no excuse. IIRC there is a concept called "lenity" which says that if a legal issue is vague and a reasonable person would assume an interpretation that the court says is wrong, that's still a valid defense. What does the INGO bar say about that?

The Rule of Lenity normally applies when a statutory provision is unclear in itself, In that case deference is to be given to a reasonable reading by the defendant. I don’t believe it is normally applied when there is a conflict between a state and a federal law.

 

[HoughMade]

States can decide what laws they will enforce. They can not decide what laws the feds will enforce. Period. End of story.

This goes for the law mentioned in this case and it goes for those laws that seemed popular a few years ago purporting to make criminals out of federal law enforcement enforcing federal laws.

What’s more, I have to believe that the legislators and governors enacting such laws know this.

 

[GodFearinGunTotin]

Yeah...sorry to say, NFA items don't enjoy the same sort of....eh...approved "scofflaw" status by the public like marijuana does. Unfortunately, judging by watching Jim Lucas' FB page, we shouldn't count on the "legalize marijuana" crowd lending us their support for the same sort of civil disobedience when it comes to gun stuff.

 

[Tryin']

That's not much of a surprise.

Absolutely.

But interesting to me from a language standpoint. Especially since the court refers to them as regulated firearms further along in the opinion.

**I don’t have an agenda and I’m not looking for loopholes or false hope of some turn of language green lighting the way to whatever utopian outcome might be inferred. Just thought it interesting/humorous.

 

[T.Lex]

Yeah, that's a language problem with the NFA. Suppressors/silencers are included in the definition of "firearm." But, we know they really aren't. (Arguably, this is a "legal fiction.")

So, a court trying to interpret the issue has to acknowledge the reality that they are accessories, while also accepting that a statute includes them as "firearms."

 

[HoughMade]

Yeah, that's a language problem with the NFA. Suppressors/silencers are included in the definition of "firearm." But, we know they really aren't. (Arguably, this is a "legal fiction.")

So, a court trying to interpret the issue has to acknowledge the reality that they are accessories, while also accepting that a statute includes them as "firearms."

Statutory "firearm" =/= "arms" for Constitutional purposes...but may. This is far from the most egregious legislative language sin that there is out there.

 

[T.Lex]

Statutory "firearm" =/= "arms" for Constitutional purposes...but may. This is far from the most egregious legislative language sin that there is out there.

Agreed.

Let's not try to catalog those, though. That'd be depressing....

 

[ziggy]

It seems to me this case stands for three things. 1) The NFA - or most any regulatory system designed primarily as a punitive box - can be made constitutional by tying the box with a ribbon of taxation which will let the courts focus on the ribbon while ignoring the box itself. (E.g., this case and Obamacare, aka, The Affordable Care Act.)
2) The states cannot overrule federal law if the feds want to press the issue.
3) A suppressor is an accessory. Period.
I wonder if a firearm could be designed and constructed in such a way that the suppressor elements were integral to its design and construction so that the suppressed firearm could come within the Second Amendment's protection. If they could, they would sell like ice cream on the 4th of July.

 

[d.kaufman]

It seems to me this case stands for three things. 1) The NFA - or most any regulatory system designed primarily as a punitive box - can be made constitutional by tying the box with a ribbon of taxation which will let the courts focus on the ribbon while ignoring the box itself. (E.g., this case and Obamacare, aka, The Affordable Care Act.)
2) The states cannot overrule federal law if the feds want to press the issue.
3) A suppressor is an accessory. Period.
I wonder if a firearm could be designed and constructed in such a way that the suppressor elements were integral to its design and construction so that the suppressed firearm could come within the Second Amendment's protection. If they could, they would sell like ice cream on the 4th of July.

As far as number 3, i Cant think of the name of company right now, but they made a suppressed muzzleloader that skirts the bs laws. I know I've seen integrally suprressed handguns and i believe ruger is making an integrally suppressed 10/22, but i don't believe they skirt the law for some reason

 

[HoughMade]

I don't think it stands for the proposition that something that violates the 2d Amendment is constitutional because you call it a tax. They found that the 2d Amendment is not violated by restricting "silencers" because they are not constitutional "arms" and SBRs do not fit the Heller definition of the kind of arms that cannot be prohibited. Since neither, in their view, have 2d Amendment protection, then if they are subject to regulation, then they can be taxed even if the tax is a backdoor ban.

 

[T.Lex]

Personally, I have a backdoor ban.

 

[HoughMade]

Personally, I have a backdoor ban.

 

[ziggy]

Partial agreement

I don't think it stands for the proposition that something that violates the 2d Amendment is constitutional because you call it a tax. They found that the 2d Amendment is not violated by restricting "silencers" because they are not constitutional "arms" and SBRs do not fit the Heller definition of the kind of arms that cannot be prohibited. Since neither, in their view, have 2d Amendment protection, then if they are subject to regulation, then they can be taxed even if the tax is a backdoor ban.

Suppose the NFA is amended to impose a tax of $5.00 per bullet for any round that can be fired in a modern firearm. While I agree that this case does not "stand for the proposition that something that violates the 2d Amendment is constitutional," what I am saying is that a court can easily use this case, and some of the cases cited therein, to make the argument that because it it a tax, and the constitution specifically gives congress the "power to lay and collect taxes, duties, imposts and excises," (Art 1, Section 8) that it is constitutional irrespective of a burden on the exercise of our 2A rights.
You and I may agree that is completely wrong, but the door is certainly open to that if there are 5 progressives on the Supreme Court.

What do you think?

 

[HoughMade]

Suppose the NFA is amended to impose a tax of $5.00 per bullet for any round that can be fired in a modern firearm. While I agree that this case does not "stand for the proposition that something that violates the 2d Amendment is constitutional," what I am saying is that a court can easily use this case, and some of the cases cited therein, to make the argument that because it it a tax, and the constitution specifically gives congress the "power to lay and collect taxes, duties, imposts and excises," (Art 1, Section 8) that it is constitutional irrespective of a burden on the exercise of our 2A rights.
You and I may agree that is completely wrong, but the door is certainly open to that if there are 5 progressives on the Supreme Court.

What do you think?

I think that:

1) the court decided that NFA items are not covered by the 2d Amendment at all. That underlies all of the decision, even the taxation part, and

2) It is recognizd that taxation at a certain level is, in effect, a ban. If taxation were to rise to that level on firearms and ammunition that have been recognized as protected by the 2d Amendment, a court should find that unconstitutional.

Will some try that? I'm sure some politicians would like to try, but as you pointed out, taxes (federally) come from legislative action, not courts, so it would be a long road to get there.

 

[CampingJosh]

Interesting to me was the statement that silencers are entirely viewed as an accessory, not an actual “arm”, and therefore fall outside of the purview of the second amendment.

I think it's easy to see that a silencer is not an arm, but I think it could fit as "armour of defense" if we recognize that utilizing an arm within the confines of a home can itself cause serious, irreversible bodily harm. The court seemed to skip over that without even considering it.