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10 April 2013

Gun Taxes, Ammo Licences, Liability Insurance, And Other New Ideas From The Gun-Grabbers Are As Unconstitutional As The Last New Ideas They Had





 "All laws which are repugnant to the Constitution, are null and void." 

- Marbury v Madison, 5, U.S. (Cranch) 137 (1803)


I’ve been doing some research on the ‘new’ ideas of the gun-grabbers be they on the Federal, state, or local (new Chicago gun tax) level: taxing guns & ammo, liability, requiring licences to purchase guns and ammo, etc.

This is some of what I’ve found…

The Supreme Court drew analogies between the First and Second Amendments in District of Columbia v Heller, 554 U.S. 570 (2008), in which the Court first ruled that the Second Amendment protects an individual right to keep and bear arms, as opposed to a collective right of maintaining a militia.

More fundamentally, the Court held in South Carolina v United States, 199 U.S. 437, at 448, (1905), "The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now."

Further, it held in Muller v Oregon, 208 U.S. 412, (1908), "It is the peculiar value of a written constitution that it places in unchanging form limitations upon the legislation and thus gives a permanence and stability to popular government which otherwise would be lacking." Also, in Miranda v Arizona, 384 U.S. 436, (1966), the Court held that "Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them."  

Most importantly, the Court ruled in Norton v Shelby County, 118 U.S. 425 (1886), that 'An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation as inoperative as though it had never been passed.' 

In Albright v Oliver, 510 U.S. 266 (1994), the Court said:

‘It was through these provisions of the Bill of Rights that their Framers sought to restrict the exercise of arbitrary authority by the Government in particular situations. Where a particular Amendment “provides an explicit textual source of constitutional protection” against a particular sort of government behavior, “that Amendment, not the more generalized notion of `substantive due process,’ must be the guide for analyzing these claims.’ See Graham v Connor, 490 U. S. 386, at 394-5 (1989). 

The right to keep and bear arms and other rights are to have, “freedom from all substantial arbitrary impositions and purposeless restraints” under the Fourteenth Amendment. Poe v Ullman, 367 U.S. 497 (1961), Albright v Oliver, 510 U.S. 266 (1994), among others.

The Supreme Court has concluded that the procedural protections contained in the Bill of Rights were made applicable to the States by the Fourteenth Amendment in numerous cases.

In Murdock v Pennsylvania, 319 U.S. 105 (1943), the Court said: 

‘It is a license tax – 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. McGoldrick v Berwind-White Co., 309 U.S. 33 (1940). 

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. Lovell v Griffin, 303 U.S. 444 (1938); Schneider v State, 308 U.S. 147 (1939); Cantwell v Connecticut, 310 U.S. 296 (1940); Largent v Texas, 318 U.S. 418 (1943); Jamison v Texas, 318 U.S. 413 (1943). 

It is a flat license tax levied and collected as a condition to the pursuit of activities whose enjoyment is guaranteed by the [Constitution]. Accordingly, it restrains in advance those constitutional liberties…and inevitably tends to suppress their exercise. That is almost uniformly recognized as the inherent vice and evil of this flat license tax. As stated by the Supreme Court of Illinois, a person cannot be compelled ‘to purchase, through a license fee or a license tax, the privilege freely granted by the constitution.’ Blue Island v Kozul, 379 Ill. 511, 519, 41 N.E.2d 515, 519. So it may not be said that proof is lacking that these license taxes either separately or cumulatively have restricted or are likely to restrict petitioners’ … activities, which are protected by the Constitution. On their face they are a restriction of the free exercise of those freedoms which are protected by the [Constitution].

This tax is not a charge for the enjoyment of a privilege or benefit bestowed by the state. The privilege in question exists apart from state authority. It is guaranteed the people by the Federal Constitution.' 

In Harper v Virginia Board of Electors, 383 U.S. 663 (1966), the Court said:

We have long been mindful that, where fundamental rights and liberties are asserted under the Equal Protection Clause, classifications which might invade or restrain them must be closely scrutinized and carefully confined. See, e.g., Skinner v. Oklahoma, 316 U.S. 535 (1942); Reynolds v Sims, 377 U.S. 533 (1964); Carrington v Rash, 380 U.S. 89 (1965); Baxstrom v Herold, 383 U.S. 107 (1966); Cox v Louisiana, 379 U.S. 536 (1965), 580-581 (BLACK, J., concurring).

In Lovell v City of Griffin, 303 U.S. 444 (1938), the Court said:

‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Freedom of speech and freedom of the press, which are protected by the First Amendment from infringement by Congress, [substitute the right to bear arms, individually, which is protected by the Second Amendment from infringement by Congress] are among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action. Gitlow v New York, 268 U.S. 652 (1925); Stromberg v California, 283 U.S. 359 (1931); Near v Minnesota, 283 U.S. 697 (1931); Grosjean v American Press Co., 297 U.S. 233 (1936); De Jonge v Oregon, 299 U.S. 353 (1937). See also Palko v Connecticut, 302 U.S. 319 (1937). It is also well settled that municipal ordinances adopted under state authority constitute state action, and are within the prohibition of the amendment. Raymond v Chicago Union Traction Co., 207 U.S. 20 (1907); Home Telephone & Telegraph Co. v Los Angeles, 211 U.S. 265 (1908); Cuyahoga River Power Co. v Akron, 240 U.S. 462 (1916).

In Cantwell v Connecticut, 310 U.S. 296 (1940), the Court said:

‘The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case, the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.

The State of Connecticut has an obvious interest in the preservation and protection of peace and good order within her borders. We must determine whether the alleged protection of the State’s interest, means to which end would, in the absence of limitation by the Federal Constitution, lie wholly within the State’s discretion, has been pressed, in this instance, to a point where it has come into fatal collision with the overriding interest protected by the federal compact.’

Obviously, there is a limitation imposed by the Federal Constitution.

If you are wondering how hunting licences, duck stamps, etc, are constitutional, they are licences on activities, i.e., hunting, shooting ducks, etc, not the ownership of firearms.

The government may charge a nominal fee to process a background check, for example; provided, that it is not intended to act as a prior restraint and/or burden on the constitutionally-protected right to bear arms. It can also charge a nominal fee to licence ‘dangerous and unusual weapons which are not in the common usage’ such as fully-automatic weapons, but it cannot ban or regulate ‘an entire class of arms that is overwhelmingly chosen by American society for that lawful purpose,’ especially handguns, shotguns, and most rifles. I would also add AR-15s and semi-automatic weapons of all kinds, which are commonly used by Americans for self-defence.

Also, ‘laws, regulations, or rules that render the firearm inoperable and defeat the fundamental purpose of self-defence are unconstitutional.’ District of Columbia v Heller, 554 U.S. 570 (2008). No law, regulation, or rule that ‘makes it impossible for citizens to use firearms for the core lawful purpose of self-defense and is hence unconstitutional.’ Heller, supra. The holding in Heller was applied to the states in McDonald v City of Chicago, 561 U.S. 3025 (2010).




'These taxes on firearms and ammunition obviously serve the same purpose as any poll tax ever did. But what I want to know is where exactly is the liberal outrage over these taxes? After all, they disproportionately effect minorities and the poor.'

NotCoach on April 10, 2013 at 10:31 AM


Yes, taxes on firearms and ammunition act just like poll taxes (I cited Harper, which ruled such were unconstitutional) … and soliciting licences on the Jehovah’s Witnesses and others to distribute religious material, which were the issues in some of the cases I found. As I noted, however, the Court in Heller drew analogies between the First and Second Amendments.

The liability insurance requirement is also a prior restraint and an undue burden on rights guaranteed by the Constitution.

The poll tax analogy is, especially, powerful considering the fact that the Supreme Court has ruled that there is no constitutionally-protected right to vote, per se. San Antonio Independent School Dist. v Rodriguez, 411 U.S. 1, 35 (1973).  There IS a constitutionally-protected right to bear arms and the state must prove that it has a compelling interest in restricting that right, its law, regulation, or ordinance is narrowly-tailored, and the law or policy must be the least restrictive means for achieving that interest.

The mental health requirements that are being passed – like the SAFE Act in New York, which prohibits ANYONE, who has EVER taken any psychotropic medication, which would include drugs for depression, anxiety, insomnia, ADD, ADHD, etc. – will probably fail to survive strict scrutiny.   Yes, governments have a compelling interest in keeping weapons out of the hands of those adjudicated mentally-ill or those that are 'an imminent threat to themselves or others,' but the laws are overly broad and are not the least restrictive means that the government can use to achieve that interest.  While the government can prevent those, who have been adjudicated mentally ill and those whom mental health professionals have warned are imminent dangers to themselves or others, it cannot infringe on the rights of those that have neither been adjudicated mentally ill nor reported to be an imminent danger.  That someone might have taken ADD or insomnia medication in the past is NOT proof that the person is 'an imminent threat to himself or others.'

Such laws are likewise an unconstitutional deprivation of a constitutionally-protected right without due process. Each person must be entitled to a hearing before his right to bear arms, his guns can be permanently confiscated or his licence is permanently suspended or pulled.

The state has an interest in protecting the public from those that pose ‘an imminent danger to themselves or others,’ but those that had temporary mental conditions, which have been resolved (past insomnia and mild depression after a spouse died, anxiety and insomnia during a financially-trying period in the past, etc) cannot be deprived of their right to bear arms without a hearing with the state proving that the individual is an imminent danger to himself or others. There must be some adjudication. In most of these cases, the burden on the state is going to be too high for it to survive strict scrutiny.

The state could easily show why a Jared Loughner or James Holmes should have his weapons confiscated temporarily - and maybe permanently -  based on the plethora of evidence that existed prior to their crimes, but the fact that a woman took an anti-depressant 10 years ago for 6 months after being raped is insufficient to prove that the state has a right to deprive of her constitutionally-protected right to own a gun for self-defence.  There MUST be more.  She MUST be an imminent threat to herself or others.

As far as the Left’s silence, it should surprise no one. It is apparent that they only care about the rights they choose . The fact that the phrase ‘the people’ is used in the First, Second, Fourth, Ninth, and Tenth Amendments and is considered to refer to individuals, not the collective, in 4 of those by the Left doesn’t mean that they are ever going to admit that it applies to the Second, too.

If a state attempted to put a tax on abortions or require that women carry health insurance that covers mental health before being allowed to undergo an abortion, the Left would go nuts. If the Federal government attempted to require the people and/or the ‘press,’ which is not limited to newspapers, television, magazines per prior Supreme Court rulings, and have individual bloggers obtain licences following background checks before being allowed their First Amendment rights, the Left would go nuts. If a locality attempted to require residents to get a licence before they could buy Plan B, which is what Connecticut is doing with ammo, the Left would go nuts. I long ago stopped being surprised by their selective outrage and cafeteria constitutionalism.

And, of course, the fact that Progressives believe that the poor should not have a right to self-defence is par for the course.   After all, they once argued those of the poor that they deemed mentally-defective be sterilised so that they could not breed, Buck v Bell 274 U.S. 200 (1927).  They always know what’s best for everyone else, especially the poor and most vulnerable. Dontcha know?
 
But, using the Left's own arguments, why should the poor be denied ACCESS in order to exercise their constitutionally-protected rights or have such burdened with taxes, licencing fees, or insurance requirements?

Remember, we are told that, if the poor cannot afford health insurance or abortions, they are being denied access to healthcare and the constitutionally-protected right to abort their children; thus, we need to subsidise them so that they will have equal access to basic rights and not face de facto discrimination.

If we are supposed to pay for abortions and contraceptives through Medicaid because the failure to do so would be a de facto denial of access to same for the poor, shouldn’t we also pay for the poor to exercise their Second Amendment rights?

Nah. All constitutionally-protected rights are equal, but some constitutionally-protected rights are more equal than others.




'Sorry but I think republicans are going to lose the House and not win the Senate. It won’t be over gun background checks though.(Well duh since 90% of the people support that.) It will be because of doing absolutely nothing except being obsessed with sex...God knows I hope you have a background check.'

stingray9813 on April 10, 2013 at 5:41 PM


I’ve already passed.

FYI, ALL of the scenarios that I described WOULD require a background check under Chuck Schumer’s proposed legislation, S. 374, a/k/a the Fix Gun Checks Act of 2013. EACH would be a felony for the transferor and/or the transferee and each weapon would be a distinct violation.

Pursuant to S. 374:

* If you leave home for more than 7 days and leave anyone at home, that becomes a felony illegal transfer. 5 years in prison for each of you…for EACH weapon.

* If you take a friend shooting and allow him to fire your gun, that is a felony illegal transfer. 5 years in prison for each of you…for EACH weapon.

* If you have a gun lost or stolen and don’t report it within 24 hours, you’ve committed a felony. 5 years in prison…for EACH weapon.

* If you lend a gun to someone for to try out at the range, provide a loaner for a student in training, let your son shoot a rifle you purchased while hunting, or provide a gun to a woman for self-defence, you’ve committed a felony. 5 years in prison for each of you…for EACH weapon. 

Americans do not support such requirements for background checks…and, certainly, not by 90%.
 
Schumer’s background check legislation regulates ALL transfers of EVERY kind. No sale is required.



'Leaving aside the riddle games…what exactly is your position on background checks?  Not sure you’ve really ever offered that.  Now I’m not asking about whether there are or aren’t ‘already laws’…assuming it’s a blank slate, what do you think is reasonable?'

- verbaluce on April 10, 2013 at 6:02 PM


I don’t have a problem with commercial background checks, per se. I do have problems with what should be allowed to prevent the purchase of a firearm. That a woman took anti-depressants, anxiety and insomnia medications for a period after losing her husband or being raped should not preclude her from exercising her constitutionally-protected right to bear arms, especially when her due process rights have been denied. This is happening in New York now. I have a problem with medical professionals merely having to say that they ‘suspect’ someone ‘might’ be mentally ill is, likewise, unconstitutional. The test isn’t whether someone might be mentally ill, but whether the person is ‘an imminent threat to herself or others.’

The mental health requirements that are being passed – like the SAFE Act in New York, which prohibits ANYONE, who has EVER taken any psychotropic medication, which would include drugs for depression, anxiety, insomnia, ADD, ADHD, etc. – will probably fail to survive strict scrutiny. Yes, governments have a compelling interest in keeping weapons out of the hands of those adjudicated mentally-ill or those that are ‘an imminent threat to themselves or others,’ but the laws are overly broad and are not the least restrictive means that the government can use to achieve that interest. While the government can prevent those, who have been adjudicated mentally ill and those whom mental health professionals have warned are imminent dangers to themselves or others, it cannot infringe on the rights of those that have neither been adjudicated mentally ill nor reported to be an imminent danger. That someone might have taken ADD or insomnia medication in the past is NOT proof that the person is ‘an imminent threat to himself or others.’ 

Such laws are likewise an unconstitutional deprivation of a constitutionally-protected right without due process. Each person must be entitled to a hearing before his right to bear arms, his guns can be permanently confiscated or his licence is permanently suspended or pulled.

The state has an interest in protecting the public from those that pose ‘an imminent danger to themselves or others,’ but those that had temporary mental conditions, which have been resolved (past insomnia and mild depression after a spouse died, anxiety and insomnia during a financially-trying period in the past, etc) cannot be deprived of their right to bear arms without a hearing with the state proving that the individual is an imminent danger to himself or others. There must be some adjudication. In most of these cases, the burden on the state is going to be too high for it to survive strict scrutiny.

Both Colorado and Arizona could’ve easily shown why a Jared Loughner or James Holmes should be prohibited from purchasing guns or have his weapons confiscated temporarily – and maybe permanently – based on the plethora of evidence that existed prior to their crimes, but the fact that a woman took an anti-depressant 10 years ago for 6 months after being raped is insufficient to prove that the state has a right to deprive of her constitutionally-protected right to own a gun for self-defence. There MUST be more. She MUST be an imminent threat to herself or others.

I have a HUGE problem with the fact that we supposedly need more laws, more onerous background checks, etc, even though:

1. Gun crime prosecutions under the Obama administration have decreased by 45% from the Bush administration; and,

2. Only 71 of the 71,000 people, who lied on their background checks in 2009, were prosecuted by the Obama administration; and,

3. In 2010, 72,142 were denied the right to buy a gun. 33,907 (47%) of those were denied because they lied about a felony indictment or conviction on their background check; yet, only 44 were prosecuted and 13 convicted of lying; and,

4. Even though people, who have been adjudicated mentally ill, are not allowed to own firearms under Federal law, 23 states and the District of Columbia had submitted fewer than 100 mental health records to the federal database, 17 states had submitted fewer than 10 mental health records, and 4 states had not submitted any in 2012, and the Feds cannot mandate compliance; and

5. As Vice-President Joe Biden said: “We don’t have time to prosecute everybody who lies on background checks;” and,

6. Who remembers Hadiya Pendleton, the girl who was murdered in Chicago not long after performing at Obama’s second inauguration? One of her killers, Michael Ward, pleaded guilty to AGGRAVATED UNLAWFUL USE OF A FIREARM – A CLASS IV FELONY – in January, 2012. He was sentenced to two years probation…WHICH HE VIOLATED THREE TIMES IN LESS THAN ONE YEAR.

While NONE of the proposals that Democrats have made would have prevented Hadiya Pendleton’s murder BECAUSE THE GUN WAS OBTAINED – WAIT FOR IT – ILLEGALLY, she might very well be alive today had Michael Ward been sentenced to jail or prison rather than probation or had his probation revoked after the first or second or third violation.

7. 93% of all guns used in crimes are obtained ILLEGALLY and nothing that has been proposed is going to stop that.

8. Most of the people, who are drafting these laws, have NO IDEA about which they are talking. NONE.

Let’s pass MORE GUN CONTROL LAWS for Obama NOT TO ENFORCE!!!

BTW: I am not playing games with riddles. The scenarios that I have proposed on this thread WOULD REQUIRE BACKGROUND CHECKS AND BE SUBJECT TO FELONY PROSECUTIONS.



'Ok…fair enough.  You do in fact support background checks – but with the caveat that any resulting denial be followed by a hearing.  That seems reasonable.  As far as mental health requirements being too broadly and in some cases wrongly defined and applied, also a fair concern.'

- verbaluce on April 10, 2013 at 6:31 PM



The mental health requirement is a big concern. How many people do you know that have never taken anti-depressants, SSRIs, anti-anxiety, insomnia, ADD, ADHD, etc, meds? New York is claiming that, if you’ve EVER taken any of these types of medications, it can prohibit you from exercising your Second Amendment rights. That’s just absurd. Also, in states like California, if your spouse has taken meds such as I’ve listed, YOU can lose your Second Amendment rights.

It’s crazy. Imagine if states put a mental health requirement on abortion. If you’ve taken any of these meds, you cannot have an abortion because some women have suffered mentally from the procedure in the past. You might not be able to make an informed consent or the procedure could trigger a ‘relapse.’ Such would be met with outrage.

The mental health prohibition should ONLY be allowed for those that have been adjudicated mentally ill or mental health professionals have diagnosed the person to be an imminent threat to themselves or others…and this prohibition should not be permanent.

If we just accept ‘reasonable’ or some other vaguely-defined term, then we will get the equivalent of the Pop-Tart Gun violation in the background check system. What if your neighbour is a medical professional, who has NEVER treated you, but she thinks you are mentally ill because she doesn’t like the way you respond to the mountains of shit that her 42 cats leave in your yard? Under many of these recently enacted and proposed laws, your neighbour could prohibit you from exercising your right to bear arms for self-defence or hunting. It’s absurd.


  
'The Public Safety and Second Amendment Rights Protection Act would require states and the federal government to send all necessary records on criminals and the violently mentally ill to the National Instant Criminal Background Check System (NICS). The bill extends the existing background check system to gun shows and online sales.'

- bluefox on April 10, 2013 at 6:43 PM


The Federal government cannot mandate states forward such information or require participation in particular programmes. The most that it can do is tie reasonable conditions to a portion of funding for projects or programmes that are connected to them. For example, states cannot be forced to raise drinking ages, lower BAC, or lower the speed limit. The most the Feds can do is to tie reasonable conditions to a portion of highway moneys. See South Dakota v Dole, 483 U.S. 203 (1987), and National Federation of Independent Business v Sebelius, 567 U.S. ___ (2012), Case No: 11-393, for two examples.

It also may not mandate that state, county, and municipal employees conduct background checks, see Printz v United States, 521 U.S. 898 (1997).



'Seems that this would pretty much outlaw youth hunting, yes?'

- KCB on April 10, 2013 at 6:05 PM


Yes, S. 374 would, for all intents and purposes, outlaw youth hunting AND shooting.

Under current Federal law, it is prohibited for a dealer to sell a handgun and many semi-automatics to anyone under 21 and long guns to anyone under 18.

If you expand the law to include transfers, not just sales, then kids under 18 couldn’t shoot a long gun.








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