Skip to comments.GOP Senator Cruz: New Gun Control Proposals Are ‘Unconstitutional’ (Fox New Sunday Video at Link)
Posted on 01/06/2013 3:12:08 PM PST by Red Steel
Senator Ted Cruz (R-TX), a freshman Congressmen, appeared on Fox News Sunday and said he did not support most new gun control legislation because it is unconstitutional.
Cruz was discussing his belief that after the tragic shooting at Sandy Hook Elementary School, politicians used the opportunity to try to exploit and push their political agenda of gun control. Cruz said he would not back an assault weapons ban or a ban on high capacity magazines.
RELATED: Former Marine Responds To Sen. Feinsteins Gun Proposal: Unconstitutional Laws Arent Laws
Asked if there was any new gun legislation he might be willing to approve, Cruz replied, I dont think the proposals being discussed now make sense. Senator Dianne Feinstein, he said, is proposing a national gun owner registry, which he disagrees with. I dont think the federal government has any business having a list of law-abiding citizens who choose to exercise their right to keep and bear arms, Cruz added.
However, he said he would support an improvement in the quality of the federal gun database. He also noted we need common sense measures like ensuring criminal conviction barriers and mental health barriers to gun ownership.
Watch the full clip below, via Fox News:
It worked again for me. You should get a large arrow in the video screen after the first click and then click it again and again if need be. It’s hard to start. You could also try another browser.
I think the Mediaite link may go to Fox News.
Fox owner Murdoch who doesn’t like ARs may have one of his henchman messing with the video clip. /sarc sort of...
Ted Cruz the most conservative and most articulate, and about the only one of the “new conservatives” you can believe when he says something. Get used to saying his name. One day he’ll be called President Ted Cruz.
I use firefox. Refresh does not work even tough I have allowed all for the site. Oh well.
“Ted is not going to buy any bs from anybody.”
If you are a fellow Texan, then you got to enjoy him standing up to the local Rino/Republican establishment and telling them to F -off. Unfortunately, in Washington he is one of a very small number. If the rest of the country had held up there end and there were about 20 - 30 Ted Cruz’s in the Senate, there would be some hell raised!
The Second Amendment Pledge
I pledge to uphold defend and comply with the Second Amendment to the bill of rights in our United States constitution. Abiding by the original intent of our founding fathers in recognizing the preexisting God given, inalienable right of we the people together and individually to acquire, keep and bear arms.
The advance of technology does not alter nor affect this right. Any action, edict, decree or demand by any entity which negatively impacts or infringes on our right to modern state of the art arms and magazines is a treasonous criminal act, an unjust and an illegal law null and void.
It is my highest duty and honor to respond to such a despotic lawless act with peaceful civil disobedience, contempt, defiance and resolute hyperactive resistance.
That will be an interesting proposition should he undertake it as he was born in Calgary, Alberta, Canada.
The words of a politician are worth nothing. Cruz could turn on a dime, then turn again, and again.
Will you at least give the man a chance before labeling him a RINO.
Finally, the government argues that the Gun Control Act, of which section 922(o) is a part, should not be viewed as repealing the National Firearms Act, citing a provision of the Gun Control Act passed in 1968 to that effect. The court in Rock Island Armory rejected the same government argument, observing that "the 1968 Congress cannot bind the Congress of 1986, which decided to ban transfer and possession of machineguns. P.L. 99-308, 100 Stat. 453 (May 19, 1986). Further, a Congressional declaration in 1968 does not solve a constitutional problem which arose in 1986. The ban enacted in 1986 and the government's refusal to accept registrations and tax payments, simply left the registration requirements with no constitutional basis."
773 F. Supp. at 126 (footnote omitted).
The government is correct that a statute is repealed by implication only when that statute and a later statute are irreconcilable. See, e.g., Morton v. Mancari, 417 U.S. 533, 549-51 (1974). In our view, however, that is exactly the situation here. Sections 5861(d) and (e) punish the failure to register a machinegun at the same time that the government refuses to accept this required registration due to the ban imposed by section 922(o). As a result of section 922(o), compliance with section 5861 is impossible.
Accordingly, we vacate Dalton's conviction and reverse with instructions to dismiss the indictment. In so doing, we recognize that the illegal possession of a machinegun is a most serious matter. However, it is precisely because this conduct raises such grave concerns that the government must exercise its prosecuting responsibility with care. The decision to proceed under an inapplicable statute has resulted in a constitutionally infirm conviction.
VACATED AND REMANDED.
Since its passage in 1934, the registration, taxation, and other requirements of the National Firearms Act ("NFA") have been upheld by the courts under the power of Congress to raise revenue. (Footnote 5) However, 18 U.S.C. sec. 922(o), which became effective on May 19, 1986, prohibits possession of machineguns, and thereby repealed or rendered unconstitutional the portions of the National Firearms Act which provided for the raising of revenue from the making, possession, and transfer of machineguns made after such date. As the government conceded at oral argument, the United States refuses to register or accept tax payments for the making or transfer of machineguns made after 1986. (Footnote 6) Thus, sec. 922(o), as applied to machineguns made after May 19, 1986, left the registration and other requirements of the National Firearms Act without any constitutional basis.
The National Firearms Act was originally passed as a taxing statute under the authority of Nigro v. United States, 276 U.S. 332, 48 S.Ct. 388, 72 L.Ed. 600 (1928). See National Firearms Act: Hearings Before the Committee on Ways and Means, supra, at 101-02, 162. Upholding the Harrison Anti-Narcotic Act, Nigro noted:
"In interpreting the act, we must assume that it is a taxing measure, for otherwise it would be no law at all. If it is a mere act for the purpose of regulating and restraining the purchase of the opiate and other drugs, it is beyond the power of Congress and must be regarded as invalid ....
276 U.S. at 341, 48 S.Ct. at 390. The Court added:
Congress by merely calling an act a taxing act cannot make it a legitimate exercise of taxing power under sec. 8 of article I of the Federal Constitution, if in fact the words of the act show clearly its real purpose is otherwise." Id. at 353, 48 S.Ct. at 394.
The prosecution argues that the NFA is still a tax act because criminal violators only will be assessed the "tax." Response to Defendant's Motion to Dismiss the Indictment at 6. This begs the question, because the government refuses to register the making or transfer of a post-1986 machinegun on behalf of an applicant who is not being prosecuted, and will not register any firearm even when it imposes a tax assessment. Thus, the registration requirement - which the government interprets as repealed by sec. 922(o) is still left without any tax nexus.
In its motion to reconsider, the prosecution reiterates that the government can tax an item or activity which is illegal. Yet the very framing of this proposition presupposes that the activity can and will be taxed. By contrast, in the case at bar, the government interprets 18 U.S.C. sec. 922(o) to prevent the registration and taxation of post-1986 machineguns made for private purposes under the National Firearms Act, 26 U.S.C. sec. 5801 et seq.
The enactment of 18 U.S.C. sec. 922(o) in 1986 removed the constitutional legitimacy of registration as an aid to tax collection. This is because the government interprets and enforces sec. 922(o) to disallow registration, and refuses to collect the tax. Farmer v. Higgins, 907 F.2d 1041, 1042-44 (11th Cir.1990), cert. denied, - U.S. - , III S.Ct. 753, 112 L.Ed.2d 773 (1991). Thus, sec. 922(o) undercut the constitutional basis of registration which had been the rule since Sonzinsky.
Finally, the prosecution quotes an enactment passed in 1968 that the provisions of Title I of the Gun Control Act shall not modify or affect the National Firearms Act. (Footnote 15) However, the 1968 Congress cannot bind the Congress of 1986, which decided to ban transfer and possession of machineguns. P.L. 99-308, 100 Stat. 453 (May 19, 1986). (Footnote 16) Further, a Congressional declaration in 1968 does not solve a constitutional problem which arose in 1986. The ban enacted in 1986, and the government's refusal to accept registrations and tax payments, simply left the registration requirements with no constitutional basis. It is the duty of the judiciary to declare such laws unconstitutional. Marbury v. Madison, I Cranch. 137, 176-77, 2 L.Ed. 60 (1803).
In sum, since enactment of 18 U.S.C. sec. 922(o), the Secretary has refused to accept any tax payments to make or transfer a machinegun made after May 19, 1986, to approve any such making or transfer, or to register any such machinegun. As applied to machineguns made and possessed after May 19, 1986, the registration and other requirements of the National Firearms Act, Chapter 53 of the Internal Revenue Code, no longer serve any revenue purpose, and are impliedly repealed or are unconstitutional. Accordingly, Counts l(a) and (b), 2, and 3 of the superseding indictment are
Now, ask yourself this: Why is it, that almost noone has heard of either of the above cases, which essentially throw out the 1934, 1968, and 1986 victim disarmament acts? The government never appealed either of these cases, and they have been cited elsewhere and to the best of my knowledge are still good caselaw.
Why does the even the NRA ignore something as potentially earthshaking as this?
Does precident and caselaw only matter when said caselaw is adverse to the interests of freedom?
Mark your post for later read....
However, he said he would support an improvement in the quality of the federal gun database.
Sounds like typical politician / RINO doublespeak! Cruz disagrees with a "national gun registry" but would support an improvement in the "quality of the federal gun database".
Huh? Does that make any sense to anyone? He's opposed to a gun registry but wants to make improvements to a gun database? What's the difference? Registry vs Database?
Hey Cruz, how 'bout you just pour yourself a heeping cup of "not this shit again" and just STFU. You're barely sworn in as senator and it sounds like you're already backpedaling furiously from your conservative/tea party support base.
I believe his next words were referring to paying more attention to whackjobs and criminals in the federal database.
I'll see if I can find the transcript.
Your interpretation is correct, he was referring to more accuracy disqualifying the mentally ill and criminals.
I note that the NRA is an advocate for improving mental illness screening.
CRUZ: The reason we are discussing this is it the tragedy in Newtown. And every parent, my wife and I, we've got two girls aged 4 and aged 2 -- every parent was horrified at what happened there. To see 20 children, six adults senselessly murdered, it takes your breath away.
But within minutes, we saw politician running out and trying to exploit this tragedy, try to push their political agenda of gun control.
I do not support their gun control agenda for two reasons. Number one, it's unconstitutional.
ROBERTS: But is there that you would accept?
CRUZ: I don't think the proposals being discussed now makes sense. Look, are there things we can do? Sure. One of the things we can do is we could improve the quality of the federal database.
Right now, a lot of states, a lot of local jurisdiction are not reporting criminal conventions, not reporting mental health barriers to ownership. So, the federal database is not nearly as good as it should be. That would be a common sense improvement.
But that's not what is proposed. Senator Dianne Feinstein's bill would create a national gun registry. I don't think the federal government has any business of having a list of law-abiding citizens who choose to their right to keep and bear arms.
Thanks for your gracious response and quick follow-up!
Whether Cruz knows it or not, he has already taken the first step as evidenced by his statement.
we need common sense measures like ensuring criminal conviction barriers and mental health barriers to gun ownership.
He is either uninformed of such barriers already in place or he is leaving the door open for so-called common sense measures with the socialist
They’re doing tons of things that are unconstitutional.
And no one is stopping them.
I have heard nothing at all that would indicate that the shooter in Newtown would have been barred from buying guns or that his mother would have been barred from owning guns, even if the improvements suggested had already been made.
The anti-gunners are always after the next thing to pass, even when the next thing would not have solved the problem. The last thing to pass has never made any difference.
Without the federal FFL system, many of the infringements in Kalifornia would be hugely impractical to implement. These are all infringements and are simply another example of the courts ignoring the clear intent of the Constitution.
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