See U.S. v. Dalton (1991) (HTML) (EPUB) Some choice quotes:
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The government is correct that a statute is repealed by implication only when that statute and a later statute are irreconcilable.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.
The above case relied on U.S. v. Rock Island Armory (1991) (HTML) (EPUB)
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18 U.S.C. sec. 922(o), which became effective on May 19, 1986, prohibits possession of machineguns, and thereby repealed or rendered unconstitutional the portions of the National Firearms Act which provided for the raising of revenue from the making, possession, and transfer of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.
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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.
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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.
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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.
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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
DISMISSED.
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....