Quote of the day—Ilya Shapiro and Matthew Larosiere

In 1986, Congress enacted the Firearm Owners Protection Act (“FOPA”), which includes a ban on the transfer or possession of a machinegun not lawfully possessed and registered by May 19, 1986. 18 U.S.C. § 922(o). But before § 992(o) came 26 U.S.C § 5861(d), which makes it unlawful “to receive or possess a firearm which is not registered” (emphasis added). After FOPA, the Bureau of Alcohol,

Tobacco and Firearms (“ATF”) no longer accepted the registration of and payment of taxes on new machineguns. In stripping § 5861(d) of all revenue-raising potential, § 922(o) mooted § 5861(d)’s constitutional warrant under Congress’s Taxing Power.

In addition, § 922(o) renders § 5861(d)’s application a violation of appellant’s right to due process. Because ATF will not accept the registration of new machineguns, compliance with § 5861(d) is impossible. Section 5861(d) is thus in irreconcilable conflict with § 922(o), and since Congress enacted the latter after the former, it controls.

Amici also caution against what we perceive to be a concerning departure from fundamental rights jurisprudence. By refusing to present an analysis of why the regulation of machineguns is beyond the scope of the Second Amendment, the courts are glazing over an important constitutional question. If a class of arms can be regulated nearly to the point of a categorical ban—which machineguns may well be—the American people deserve to at least know the constitutional justification.

Ilya Shapiro and Matthew Larosiere
June 20, 2019
BRIEF OF THE CATO INSTITUTE AND FIREARMS POLICY COALITION AS AMICI CURIAE IN SUPPORT OF DEFENDANT-APPELLANT’S PETITION FOR REHEARING AND REHEARING EN BANC
[My translation is as follows:

The original constitutional justification for the regulation of machine guns was that it was a transfer tax ($200) each time the gun changed ownership. Since congress had the constitutional power to tax they could require the registration of machine guns to enable them to collect the taxes.

In 1986 congress declared the ATF shall no longer accept registration and taxation of new machine guns. This removed the possibility of collecting taxes on new machine guns. This means that the original constitutional justification for the regulation of machine guns no longer exists.

Hence, we, the people, are entitled to either the ability to purchase new machine guns or a constitutional justification as to why not.

I did not expect a challenge to machine gun law for at least several more years. I hope it’s not too soon. I would have preferred it wait until Trump has appointed another SCOTUS justice or two and we had a ruling that said semiautomatic rifles were protected.

We live in interesting times.—Joe]

14 thoughts on “Quote of the day—Ilya Shapiro and Matthew Larosiere

  1. That would be a hoot – all semi-auto AR15s are now banned, and the government is required to supply anyone owning one (or more) with sufficient drop in auto sears and other necessary parts (bolt carriers, if needed) to convert them to legal select fire weapons.

  2. I think there was a case quite a while ago where a federal judge used the same logic. The government elected not to take it to appeals because the logic was solid enough that if it was sustained at the the circuit level, there’d be precedent that unrestricted post-’86 machine guns in a whole swath of the country. So they took the loss on the conviction and shut up about it. Might have been in Wyoming or some other locale in the howling mid-continent wasteland populated by nomadic warbands of deplorables.

  3. All of this of course is to play along with the charade, which used “revenue raising” as the false pretense to establish federal restrictions of firearms. The extremely high rate of 200 dollars in the 1936 was enough to effectively ban whole classes of firearms. That fact alone, that “chilling effect” is more than enough to make null the NFA, and that’s if you totally ignore the “shall not be infringed” clause as juxtaposed with the very notion of a special tax aimed at firearms makers, sellers, buyers or users.

    We ALL KNOW that the one and only purpose of the NFA was to establish a federal authority over the right to keep and bear arms, an authority which simply does not exist, neither constitutionally nor morally. To pretend otherwise is to participate in a charade perpetrated by leftist revolutionaries. We cannot afford to ignore reality by joining in the playing of games when the very foundational precepts of liberty are being undermined by Progressive, anti-American revolutionaries.

    If such people hate the principles of liberty so much that they simply cannot abide, let them renounce their U.S. citizenship, leave this country and establish their very own dictatorships, or pope worship, anywhere they like, so long as they pledge, under pain of death, never again to threaten the liberty of any American.

    That, or we can continue to humor the enemies of liberty, playing their mind games under their pretenses, and thus be entangled in a never-ending war against us, which we support.

    Those actively opposing liberty are criminals. Nothing more and nothing less. To treat them otherwise is to participate in our own destruction.

    • Please explain how to get to a state of liberty other than by incrementally rolling back all the unconstitutional laws.

      We are seeing progress in expansion of firearms liberty in many areas. Constitutional carry is a thing in many states. 25 years ago it was only Vermont. In most states people can now purchase modern sporting rifles with flash suppressors, pistol grips, and collapsible stocks when they couldn’t 20 years ago. People can now own guns in Chicago and D.C. when they couldn’t 15 years ago.

      These gains were achieved through cultural, legislative, and judical “mind games”. Was there a quicker, more principled, path to these gains? What are the details to implementing principled victories without such “mind games” in our future?

      • An explosives factory in Idaho? Just joking!
        Boomershoot is cultural enrichment beyond measure. To bad you couldn’t throw in a machinegun shoot on top of Boomer!

        • We have had machine guns there on multiple occasions. But to the best of my knowledge the only boomers detonated were at the High Intensity events. And even then I don’t think the shooters connected with any more targets than people with semi-autos.

          • Absolutely the reason why machine guns were never that popular. Growing up where you did, with the people you did. could you imagine wasting that much ammo, and still no meat on the table?
            There quality entertainment. fun to shoot. Even liberals grin after shooting them. but that’s about all there good for.

          • That is a simple truth, that all too often even people in the .mil dont always get.

            Way back in the day (~1995ish) I was PFC Snuffy and told my 1SG(First Sergeant(top unit Non-Commissioned Officer)) that 3rd burts was just about worthless on a military rifle, and that accurate aimed semi-auto fire would work better.

            Because we were at the automated range(computer controlled pop up targets) we turned on two lanes and went to town. I kept my lane cleared longer and put more targets down with my M16-A2, vs 1SG running his M16-A2 in burst. Now to be fair on the training range a single hit pushed the targets down, vs in the real world it might take more than one, but it still I think, and at the time 1SG agreed that aimed fire is better than even aimed burst, because only getting 10 trigger pulls before having to reload really brings down ones combat effectiveness.

            That being said, I was still pissed a few years later when as one of the 3 m60 gunners in the unit, when I had to turn it in for a M249, still dont like the m249, there is just something cool about a belt fed 308 that makes one feel safe behind it.

  4. Congress’s power to tax stops at the manufacturer’s door. The 2A “amends” congressional power as its an “individual” right. That’s why you can make your own firearm, (80%), you can’t sale it.” Engaged in the business”, is the term the ATF uses. then they decide what that means.
    But exactly none of this means squat. as the people in power ain’t going to give up the power. They made “Las Vegas” work didn’t they?

  5. In Federalist #41, Madison claims — with an argument that is grammatically / linguistically quite questionable — that the the taxing power in Article 1 Section 8 is limited only to taxation for the purpose of enabling the other enumerated powers in that section. In other words, it isn’t a general power to tax for any reason, as is usually claimed.
    The grammatically dubious argument is:

    A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms “to raise money for the general welfare.”

    But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon?

    Cute, but the semicolon is a list delimiter, with each of the items in that section separated by a semicolon. It’s hard to see why the first semicolon is supposed to say that what follows is a specification of the general rule, while all later semicolons separate the individual specifications. This is why I tend to suspect Madison (though not as much as Hamilton) of deliberate obfuscation to advance his political positions.

  6. My son gifted me a 3D printer, a spool of plastic “wire” and a link to software for making Glock grips and and AR receivers. I think he wants me to make him a gift in return.

    By such technological advances are the follies of gun controllers buried in history.

  7. If all else fails they will change the $200 tax to something like $20,000. But make no mistake about it….full auto will NEVER be reasonably affordable AND legal at the same time.

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