Friday, April 24, 2020

Hard to Believe

A prosecution for unlawful machine gun possession was granted cert by the Supreme Court--and the Justice Dept. filed a motion applying to vacate the judgment and drop the indictment.  (It appears that the defendant challenged the constitutionality of the indictment before this went to trial.)  Huh?

The argument that scared DOJ into dropping felony charges is that:

1. Federal authority to regulate machine guns is derived from their authority to tax them.
2. Since 1986, it is has been unlawful to make them for private ownership.
3. If they will not collect that tax, do they have authority to regulate their possession?

Apparently this is a side effect of ACA which required you to pay a tax for not being insured.  The penalty was reduced to 0 recently by Congress, so the individual mandate no longer has any basis, because it was derived from Congressional taxing authority.  It appears that DOJ has figured what that my friend Stephen Halbrook argued in U.S. v. Rock Island Armory (C.D. Ill. 1991) could sink machine gun regulation, very quickly:
As applied to machineguns alleged to be possessed after May 19, 1986, prosecutions may no longer proceed under 26 U.S.C. § 5861. This is because the National Firearms Act is part of the Internal Revenue Code, and its provisions — including registration of machineguns possessed after May 19, 1986 — are valid only to the extent they aid in the collection of tax revenue. Since BATF would not register and accept tax payments for any machinegun after May 19, 1986, registration of machineguns made and possessed after that date no longer serves any revenue purpose, and such registration requirements are invalid. Since 18 U.S.C. § 922(o) is interpreted to ban registration and taxation of machineguns under the National Firearms Act, § 922(o) effectively repeals such registration and taxation provisions. Congress has no enumerated power to require registration of firearms. However, since registration of firearms may assist in the collection of revenue, Congress passed the National Firearms Act in 1934 pursuant to its power to tax. Section 922(o) destroys the constitutional basis of registration.
The U.S. Attorney did not appeal that decision, likely afraid it would become precedent for the whole circuit.


  1. Any chance that this could turn into something that future cases could lean on? Or is this just a one off?


  2. I think DOJ knows which way the Court might rule.

  3. The SC just allowed itself to be snookered by NYC when the city changed the offending law in media res and the court subsequently sent the case back to lower courts as moot. This looks like the same game plan. I hope the SC has learned its lesson, but I doubt it.
    Curious that both cases are 2A ones, not.

  4. Here is an interesting turn of events regarding the ACA.

    Supreme Court Orders Government To Fund $12 Billion Obamacare Bailout.

    Congress created the risk corridors but never appropriated funding for them. The USSC essentially is forcing the appropriation.

    I wonder if they'll do this in regards to machine gun taxes? One of the reasons you can't effectively buy a machine gun is that you can't pay the tax to do so. What if the courts ordered the government to start collecting said taxes?