Arms, Law & Society is published quarterly. To subscribe, send name, address, and check or money order in the amount of $35 to ALS Publications, Inc., P.O. Box 2881, Fairfax, VA 22031.
ALS provides probing commentary on politics, particularly the legislative agendas of Congress and the President, unbridled law and regulation, the history and current state of Constitutional law, gun control and crime, and contemporary American culture. We are dedicated to advocacy and defense of liberty, property rights, limited, Constitutional government and an armed society.
ALS is a quarterly publication, and will appear about April 15, July 15, October 15 and January 15 of each year. This first issue contains only articles written by the editor. Beginning next issue, and as we grow in size, we will offer articles written by others in addition to those of the editor. Comments and letters to the editor are welcomed.
--Editor, Jeffrey R. Snyder
Copyright 1995, ALS Publications, Inc. All rights reserved.
So often the question of what to do about violent crime in America is addressed strictly as a problem in social engineering, a search for the public policies that will best secure the greatest safety for the greatest number. What laws do we enact, what programs do we institute, to dissuade the individual inclined to commit violent crime, or to change the material or moral conditions from which such persons emerge, to prevent crime before it occurs?
Typically, conservatives have sought to control violent crime by increasing the certainty, severity and length of punishment, proposing to build more prisons, limit plea bargaining, abolish parole, try juveniles as adults and vigorously implement the death penalty. Liberals, on the other hand, generally have sought to control violent crime by improving the material and social conditions and opportunities of the underclass, through vigorous enforcement of civil rights laws and poverty, education, job training and drug treatment programs.
Missing from the debates over the likely effectiveness of these proposals, lost in both liberal and conservative schemes to produce a safer world by preventing crime before it occurs, is recognition of the necessity of dealing with crime as it occurs. It is no answer to say the police serve this function, for they, too, are only a deterrent.
Criminals choose the time and place for their deeds, and they take care not to commit their crimes in the vicinity of the police. No matter how many police we place on city streets, the police simply will not be there at the moment they are needed.
There is, however, one person who is always at the scene of the crime who can do something about it, then and there -- the intended victim. Amazingly, our policy discussions about crime never ask whether the intended victim has a duty, to himself, to his family or community, to defend himself, and stop the criminal before he preys upon others.
The fact that both liberal and conservative policies regarding crime studiously ignore the remedy of self-help reflects our collective desire for government to "solve" the problem of crime institutionally, without our participation. Indeed, it is common for law enforcement and the media to counsel that, when confronted by violence or threat of violence, citizens should simply hand over the goods and accede to the criminal's demands, resisting only if it appears the criminal will kill anyway. Let the state deal with villains.
The fact that our proposed solutions to the problem of violent crime are fashioned to succeed without our participation, our society's counsel that, at the very moment of crime, the criminal is to be confronted with a moral vacuity and an eager accession to his demands, are themselves symptomatic of the reason violent crime flourishes in our society. In truth, the problem of rampant crime cannot be addressed without discussing the moral responsibility of the intended victim, or the expectations of society regarding the behavior of citizens confronting violent crime.
It cannot be true both that violent crime is an offense against the person and dignity of the victim, and that citizens ought not resist violent crime, but leave crime to be dealt with by the state. Consider the moral contradictions inherent in the notion that eager cooperation is the proper or best response to a violent criminal's demands.
Why should criminals respect our lives or our liberty, when we ourselves do not value them highly enough to assume the responsibility to defend them, and do not hold them worth fighting for? Why, if society counsels a ready accession to the criminal's demands, why, if law enforcement itself counsels criminals that such cooperation is their due, why, if the criminal is not to be met with outraged, immediate resistance, would a criminal believe that what he is doing is actually wrong? Because laws make it so? His crime then is solely against the state, not against the person of the victim.
To say that the victim should cooperate because no wallet, purse, car, or property is worth the victim's life is to offer a clever rationalization for moral cowardice. Robbery or carjacking are no more about property than rape is about sex. Violent crime commandeers the victim's person and liberty. It is an act of enslavement.
Your wallet, your car may not be worth your life, but your liberty and dignity are; and if they are not worth fighting for, they do not exist. To cooperate in order to preserve your life is to affirm that you may be ruled by force, and to encourage the very depredations you seek to avoid.
Violent crime flourishes in good part because society, each of us, refuses to condemn the violent criminal with our deeds at the precise moment that that condemnation is required, believing instead that laws will "communicate," and are sufficient to enforce, values we ourselves will not stand up and fight for. We marvel that crimes which thirty years ago were unthinkable become commonplace, never seeing that the increased depravity of criminals mirrors our own refusal to act upon moral judgment, our own belief that an amoral response to crime is both possible and desirable.
Let the social engineers do their best. Perhaps our institutions can save us, without our participation. More likely, however, violent crime will continue to flourish and criminals will grow bolder, for the streets of America are now a moral vacuum, the victims do not count their liberty worth fighting for, and each person believes that his safety is someone else's responsibility. Criminals will hold the upper hand until we learn, and teach, that fighting crime is everyone's responsibility. Dignity and liberty demand no less.
Gun control is principally a cultural and not a political battle. Unless we change the prevailing cultural attitudes that guns, and all things associated with them, are unclean, evil or barbaric, we will suffer further erosion of the right to keep and bear arms, regardless of our ability to elect "pro gun" legislators.
As a case in point, consider the plight of Mr. Raymond Ducharme, a licensed federal and New York State firearms dealer who for twenty-one years operated a reloading and gun customizing business out of his home in a small town in upstate New York. Mr. Ducharme's business served about 50 regular customers, including members of the local police force who purchased his reloads as practice ammunition. He reloaded about 500 - 1,000 rounds per week.
Mr. Ducharme's ordeal began when he was informed by the ATF that his federal firearms license would not be renewed unless he produced evidence that the business use of his home was in compliance with local zoning ordinances. Mr. Ducharme had never received formal approval for the business use of his home, although he had filed an application with the local zoning board around the time he began his business, and so he reapplied for a special use permit authorizing the business use of his home.
The zoning board claimed that it had denied Mr. Ducharme's original application twenty years ago. Mr. Ducharme asserted he had never received notice of such a decision and, when he challenged the board, they were unable to produce any written evidence of the denial.
A public hearing was held on the question whether to grant the special use permit Mr. Ducharme was seeking. The board received nine letters from neighbors of Mr. Ducharme opposing his application, and approximately two dozen neighbors appeared at the hearing to oppose Mr. Ducharme.
Mr. Ducharme's residence is near the local school and, notably, the school district superintendent testified that the school board supported "the concept of not having a firearms facility this close to the school." Other opponents also questioned how Mr. Ducharme's business could be permitted to operate in an area posted as a "gun-free, drug-free school zone."
(No one suggested or believed that Mr. Ducharme was selling guns to children. Evidently, those who raised this concern were worried about the "message" that would be sent to school children if the children knew that, despite the signs proclaiming it a gun and drug-free zone, the law approved of a "firearms facility" being located next door. Here it must be admitted that the opponents were simply requiring their public officials to adhere to the logic of the "drug-free, gun- free school zone" policy. Permitting a "firearms facility" next door to a school would, Mr. Ducharme's opponents perceived, be as inconsistent with this policy as a decision permitting a crack cocaine processing facility next door, and evidently just as morally reprehensible.)
Neighbors also opposed continuance of Mr. Ducharme's business from his home on grounds that the nature of his business would cause their property values to plummet. "I did not move onto Harriet Avenue to be next door to a person who sells guns," said one vocal opponent.
Because of the amount of smokeless powder stored in Mr. Ducharme's home, opponents also raised fire safety concerns. The local police and fire departments had inspected Mr. Ducharme's home and evidently found no unsafe storage or use conditions, and Mr. Ducharme testified that the smokeless powder used in his reloading business was not as flammable as a can of gasoline. Nevertheless, Mr. Ducharme was storing more flammable materials than local law allowed at a private residence.
The zoning board denied Mr. Ducharme's application for a special use permit, 5-0, on the grounds that buying and reselling firearms was not a customary home occupation and the amount of flammable materials on the premises exceeded legal limits. As it is unlikely that the volume of Mr. Ducharme's business would justify the expense of renting space in an area zoned for business use, Mr. Ducharme's business of over twenty years is at an end, and he will not obtain a renewal of his FFL.
What happened to Mr. Ducharme cannot be chalked off to simple ignorance about the nature of firearms or reloading. The town Mr. Ducharme lives in, like many small towns in upstate New York, is heavily populated by avid hunters and sportsmen. There is one other fact, however, that makes Mr. Ducharme's case particularly revealing of just how far we are from winning the cultural war over guns. Mr. Ducharme's home is Ilion, New York, home to Remington Arms, manufacturer of fine rifles, shotguns and ammunition, and the town's principal employer.
There are two lessons we might learn from Mr. Ducharme's story. First, zoning laws (and environmental laws governing hazardous substances, but that's another story) are now underutilized, but potentially powerful weapons in restricting the ability to exercise the right to keep and bear arms, for they can be used to rigorously control the existence and placement of ranges and firearms dealers, and to raise the cost of doing business so high that the business cannot exist. If firearms dealers are few and far between, if they must have a high volume of business to support the expenses of locating in business districts, if ranges are located so far away as to make shooting an infrequent luxury, shooting will be further marginalized, becoming a furtive avocation. Ultimately, gun ownership will decline.
We need to develop both legislative and, more importantly, grass roots strategies to combat this result. The newspaper reports of the zoning board hearing of Mr. Ducharme's application do not state whether any supporters of Mr. Ducharme appeared and testified, suggesting that Mr. Ducharme was on his own. Where were the local police who purchased his ammunition for practice, where were Mr. Ducharme's other regular customers, where was the fire chief to testify regarding safe storage and handling issues relating to Mr. Ducharme's business, and where were the gun owners of Ilion? Local and state gun organizations need to develop a system for monitoring and mobilizing to meet these threats.
Second, regardless of how successful those efforts are, Mr. Ducharme's problem underscores just how severe the "image" problems of gun owners, firearms and shooting are. Zoning decisions reflect the aesthetic, status, safety and ethical standards of a community and reveal, at bottom, what a community finds good and acceptable. Zoning boards generally are extremely responsive to strong neighborhood opposition, and their decisions, once made, are very difficult, if not impossible, to overturn.
The business use of homes is a common feature in small towns across America. That Mr. Ducharme could not secure approval for his small business, in a town dependant upon the firearms industry, speaks volumes of the low regard in which guns, gun owners and shooting are held. From his neighbors' claims that Mr. Ducharme's business would wreck property values, that they did not want to live next door to a man carrying on the "unclean" or evil business of selling firearms, one would deduce that his business was the moral equivalent of an adult bookstore.
This is the pit from which we must climb, and we will not climb out of it simply by securing the election of pro-gun legislators at the national or state level. Ultimately, it is the support and esteem of our neighbors that we must win, for it is upon them that the continued enjoyment of our rights depends.
Congress and the nation recently engaged in a heated debate over the wisdom of amending the United States Constitution to require a balanced budget and to pass legislation limiting the imposition of unfunded mandates upon the states. Part of the Republicans' Contract With America, these measures were hailed by their supporters as revolutionary means to stop the runaway spending and growth of the federal government and to return power to the states. While legislation was recently signed by President Clinton preventing the imposition of unfunded mandates upon the states except upon a specific, separate roll call vote, the balanced budget amendment was defeated in the Senate. Supporters, however, vow to continue the fight.
Despite the ferocity of the battle waged over these measures, they are profoundly unrevolutionary. The truth of the matter is, neither the balanced budget amendment nor a restriction upon unfunded mandates are capable of producing the result their supporters hope for -- a smaller, more limited government.
Even closing all the loopholes that would permit a wily Congress to escape its discipline, a balanced budget amendment only requires that spending equal revenues, not that both be small. In the end, the amendment is nothing more than an act of fiscal responsibility, a promise not to finance current needs on the backs of future generations unless 60%, rather than 51%, of the Congress believe it necessary to do so.
A limited government does not consist in the amount of funds the government can collect, borrow and spend, but in the activities and resources the government can command. Requiring the federal government to balance budgets cannot limit the federal government because that requirement imposes no limit on the authority the federal government now has over all aspects of our lives.
Legislation restricting the imposition of unfunded mandates is likewise incapable of creating a more limited government. That restriction does not provide that there are some things which, by their very nature, the federal government may not compel a state or its people to do.
The legislation would simply require that the federal government provide the necessary funds to carry out federal programs, according no more respect for the independent sovereignty of the states than the federal government grants to federal administrative agencies. The federal government's authority and jurisdiction continues to be as unlimited as ever, and any devolution of power to the states through legislative fixes like "welfare reform" remains an act of legislative grace, subject to revision or repeal by any succeeding Congress.
A balanced budget amendment and prohibition of unfunded mandates cannot limit the federal government because the runaway taxation and spending by the federal government are not the real problems, but only the symptoms of our real problem: the unlimited jurisdiction of the federal government. Simply put, we suffer from the fact that there is no endeavor, and no aspect of the human condition or natural world that the federal government believes is not a proper subject for its concern, and does not mean to deal with.
When established, the federal government was to have only those few powers expressly granted in the Constitution, and none other. As Madison stated in the Federalist Papers, "The powers delegated to the proposed Constitution are few and defined. Those which are to remain in the State governments are numerous and indefinite. . . . [the federal government's] jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects."
In particular, until the 20th Century it was commonly understood that the vast areas of health, education and welfare (including the environment and crime) were reserved almost exclusively to the states. In the latter 1930s, however, reeling from the Great Depression, under threat by FDR, and believing that "national problems demand national solutions," the Supreme Court agreed that the power granted Congress "to regulate interstate commerce" encompassed the power to regulate virtually anything that could affect interstate commerce.
As there is virtually nothing which does not affect interstate commerce, this expansive interpretation of the commerce clause effectively destroyed the doctrine of enumerated powers and, with it, the "inviolable" sovereignty of the states. The entire fields of health, education and welfare were thrown open to the federal government.
While the immediate result was to legitimize New Deal legislation establishing Social Security, unemployment compensation, minimum wages and agricultural subsidies, this newfound authority was also the basis for Great Society programs like welfare and Medicare, and sweeping environmental laws. The logical culmination of this process is realized today in the efforts to nationalize health care, establish national multicultural elementary and secondary education standards, and federalize crime and punishment.
Republicans have announced that their long-term goal is to honor the 10th Amendment, which affirms that the powers not delegated to the federal government by the Constitution are retained by the states or the people. If the Republicans truly mean to re-limit the federal government to its enumerated powers and permit the states to reclaim their original sovereignty in the areas of health, education and welfare, they will not achieve that result with balanced budgets and funded mandates.
If we are to truly have a limited government, and if we are to truly limit federal spending and taxing, we must truly limit the objects to which the federal government so enthusiastically applies itself. There is a far simpler, more effective way to begin this process which, although requiring a Constitutional amendment, would amend the Constitution solely to return to it: repeal the 17th Amendment.
Added in 1913 along with that other reform sought by the Populist Movement whose wisdom is now being questioned -- the 16th Amendment -- the 17th Amendment provided for the direct election of Senators by the people. Originally, the Constitution provided that Senators were to be elected by the state legislatures. The people were to be directly represented only in the House; the states were to be directly represented in the Senate.
Our Founding Fathers understood that the states could maintain their sovereignty in a federal system only if they were directly represented in Congress. Because Senators would be elected by, and therefore beholden to, state legislatures, they would act to jealously guard the states' sovereignty over those areas --health, education, welfare-- which most directly concerned the people, and least suited to the one-size-fits-all nature of federal legislation. Power over, and accountability for, those matters most intimately affecting the people would thus be kept close to home.
Further, the states, being directly represented in the Senate and acting in their self-interest, would insure that federal spending and taxation did not become so excessive as to impede the performance of their own duties. Federal budgets would be approved only upon a judgment by the states, in the Senate, that the spending was limited to matters appropriate to the federal government. Never would the states be reduced to the status of mere supplicants, relying upon a federal behemoth for "revenue sharing" or "block grants."
In sum, only legislation that successfully coordinated the desires or needs of the people with the jurisdictional prerogatives and financial resources of the states could pass. Any legislation that did pass both the House and the Senate would reflect a judgment by the states themselves, through their direct representatives in the Senate, that the object of the legislation was more appropriately addressed nationally than at the state level.
Returning the election of Senators to the state legislatures is at once a more powerful and flexible means of limiting the federal government and restoring federalism than a balanced budget amendment, prohibition of unfunded mandates, or legislative fixes such as welfare reform. Those reforms merely compel an unlimited national government to mimic the behavior of a truly limited government, and can never change the underlying reality that unlimited, discretionary power remains in the national government, nor stop the disastrous consequences that will continue to proceed from that fact.
Repealing the 17th Amendment, on the other hand, would restore real federalism. A simple majority of states, now directly represented in the Congress, would have the power to block (or approve) any unfunded mandate. But more importantly, states, now having a voice in Congress, would be able to actively reclaim their sovereignty over health, environment, crime, welfare, and education, and press for a permanent devolution of power, responsibility and resources in these areas to sources closest to the people. The states would be active, on-going participants, and not mere supplicants, in defining where the line is drawn between national and local control.
Repealing the 17th Amendment could have other advantages as well. Since their election will depend on ties to the state political party and their personal relationships with state legislators, Senators would no longer need to raise millions of dollars to blanket their states with television, radio, mass mailings and other advertisements. Thus freed from the need to raise large sums of money, Senators could consider legislation in light of its impact not on the interest groups they are beholden to for the money to get reelected, but on their particular states.
Colorado, California, Hawaii, Illinois, Michigan, Missouri, Ohio, Pennsylvania and several other states have passed resolutions demanding that Congress adhere to the Tenth Amendment. Yet absent the 17th Amendment, the states would never be reduced to petitioning or demanding that the federal government respect the Tenth Amendment, for the Constitution provided a procedural mechanism, in the election of Senators, to insure that the federal government respected state sovereignty. And without restoring direct representation of the States in Congress, it is extremely unlikely that such resolutions can accomplish a permanent devolution of authority back to the states.
Under the current interpretation of the commerce clause, the legal reality is that there is very little, if any, areas of sovereignty exclusively reserved to the states. So long as this interpretation of the commerce clause stands, the federal government retains unlimited jurisdiction, and legislative fixes like welfare reform and block grants are but temporary and expedient grants of limited authority to the states, subject to repeal, recall and revision by the federal government. Only by giving the states a voice in Congress can we insure that respect for the Tenth Amendment, and the federal government's adherence to the principles of limited government and the doctrine of enumerated powers, will be more than an act of legislative grace by an omnipotent federal behemoth who alone decides what decisions are best reserved for the states and localities.
A recognition by the Supreme Court now, at this late date, that sixty years of Constitutional jurisprudence concerning the commerce clause is, quite simply, wrong, would declare so much of the federal government's activity illegitimate, and create such an upheaval, that such action by the Court is, quite simply, unthinkable. It is likely that repealing the 17th Amendment, and giving the states direct representation in Congress once again, is the only way of effecting a peaceful, orderly transition to a return to limited government, and resolving the Constitutional crisis created by the Court's illegitimate interpretation of the commerce clause.
The question, of course, is whether we, the people, will relinquish the right to directly elect our Senators. Much depends on how well we understand that our problems do not lie in the illusion that the "wrong" people are in control so much as in the unlimited nature of that control, and the fact that it is permanently lodged far from home, in Washington.
So long as both houses of Congress depend upon the people for their election, they will continue to vie with one another to promise and deliver to us our every want and need, arrogate to themselves the resources and power to do so, and never voluntarily relinquish that power. "Reforms" like the balanced budget amendment and funded mandates do not relinquish that power, for they do not change the fact that the federal government retains unlimited jurisdiction over all aspects of our lives.
If we mean to wrest both liberty and the fruits of our labor from the federal government, we must empower our states to take back jurisdiction over those areas that most closely affect us, in health, education, welfare, crime and the environment, and so keep power, resources and accountability close to home.
Federal law currently imposes a tax on the sale, by a manufacturer or importer, of ten percent on the wholesale price of pistols and revolvers, and eleven percent on other firearms and ammunition. During 1993, in the heyday of the 103rd Congress, several bills were introduced to raise federal taxes upon firearms and ammunition with the avowed purpose of using the tax revenues for medical costs associated with gun violence.
Handgun Control Inc.'s original proposal, in its "Brady II" legislative agenda, urged Congress to raise the ten percent tax to thirty percent and the eleven percent tax to fifty percent. Assuming that wholesale prices are one-half of retail prices, HCI's proposal would have increased the cost of a $600 pistol by $60, the cost of a $600 rifle by $117, and the cost of a $12 box of ammunition by an additional $2.34. This proposal was, however, modest in comparison with Senator Moynihan's bill to tax .25, .32 and 9mm ammunition at 1,000 percent, increasing the price ten-fold, and his bill, amending President Clinton's health care plan, to tax certain hollowpoint pistol ammunition, like the "Black Talon" rounds used by Colin Ferguson in his rampage on the Long Island Railroad, at 10,000 percent. This latter tax would have increased the cost of a box of ammunition a hundred-fold, so that a $12 box of twenty rounds of 9mm "Black Talon" would have cost $1,200. The tax would not have applied to the police or other law enforcement agencies, however.
Now a proposed level of taxation of 10,000 percent, or even 1,000 percent, of any product would appear to be meant simply to price the product at such a level as to effectively prohibit, or severely curb, the manufacture and sale of the product. When viewed against the taxation of other heavily taxed items, it is plain that such a tax could not seriously be intended as a means of raising revenue. The combined federal state and local taxes on such heavily taxed articles like cigarettes, for example, have historically been as high as, but rarely exceeded, fifty-eight percent of retail price. That is, historically, the taxes have slightly more than doubled the price to the consumer.
During the "Black Rhino" ammunition hoax earlier this year, when the press was accepting, at face value, the claims of David Keen, the manufacturer, who said his new pistol ammunition would make "an incredible wound," and produce instant incapacitation, Senator Moynihan wrote an op-ed piece in The Washington Post again repeating his thesis that the key to controlling guns was to control the ammunition. By BATF estimates, he noted, "we have about 70 million handguns . . . -- a two century supply," but only a three year supply of ammunition. An "energetic regime of licensure taxing and accounting," he proposed, to control the supply and type of ammunition would render the guns useless, and severely curtail gun violence. The federal government has been in undisputed possession of the power to do this, he claimed, for at least fifty years.
Is Senator Moynihan, and the others who propose to tax firearms and ammunition as a means of controlling gun crime, correct? Can the federal government, relying on its enumerated, plenary power to lay taxes, tax firearms and ammunition at levels high enough to achieve the practical effect of prohibition without violating the Second Amendment or other provision of the Constitution?
The question is not an idle one. By relying on Congress' plenary power to tax, Congress could posture, and the Supreme Court could hold, that the tax legislation was not prohibited by the Second Amendment, even accepting that that amendment recognized an individual right to keep and bear arms. There would be, after all, no actual law banning the sale or manufacture of guns and ammunition. In form, citizens would remain fully legally entitled to keep and bear arms. In reality and as a practical matter, however, if taxes were high enough, gun ownership and use would be effectively precluded to all but the wealthy.
Despite the fact that the 104th Congress is controlled by Republicans sympathetic to gun owners, neither is this question merely theoretical. While most gun owners may not realize it, it is precisely through the federal power of taxation that the manufacture and sale of machine guns was controlled in this country from 1934, with passage of the National Firearms Act, until 1986, when sale or other transfer of newly manufactured machine guns to civilians was prohibited outright, and the constitutionality of these taxes was upheld by the Supreme Court.
The National Firearms Act imposed a series of taxes on the manufacture and sale of machine guns, the effect of which was to price them well beyond the reach of the great majority of gun owners, even to this day. First, importers and manufacturers of machine guns were required to pay an annual license fee of $1,000, and dealers in such firearms an annual fee of $500. In addition, the manufacturer was required to pay a tax of $200 for each machine gun made. Finally, a transfer tax of $200 was imposed on each transfer of the machine gun, both from the manufacturer to the dealer and from the dealer to the consumer.
Not counting the manufacturer and dealer license fees, the National Firearms Act thus added $600 in taxes to the cost of each machine gun. Circa 1934, the cost of the Thompson submachine gun, the "weapon of choice" of the mob during the twenties and supposedly the evil to be curbed by the National Firearms Act, cost about $200 - $225. The federal taxes thus increased the cost of the Tommy Gun to at least $800, a four-fold increase in the cost of the gun, equivalent to taxing the retail sale price of the gun at 300%.
In 1937, the Supreme Court considered the constitutionality of the taxes imposed by the NFA in Sonzinsky v. United States. Sonzinsky was a firearms dealer convicted for failure to pay the annual license tax imposed on dealers by the NFA. Interestingly, Sonzinsky did not claim that, and the Court did not independently consider whether, the taxes violated the Second Amendment.
The dealer conceded that Congress could tax his business as a dealer in firearms, but claimed that the taxes imposed by the NFA were not true taxes "but a penalty imposed for the purpose of suppressing traffic in a certain noxious type of firearms, the local regulation of which is reserved to the states because not granted to the national government." "The cumulative effect on the distribution of a limited class of firearms, of relatively small value, by the successive imposition of different taxes, one on the business of the importer or manufacturer, another on that of the dealer, and a third on the transfer to a buyer," the dealer argued, was prohibitive in effect and unmistakably disclosed that Congress' purpose was to regulate rather than to tax. As Congress had no power to regulate in this area, the control of firearms being an exercise of the police power reserved by the Constitution to the states, the regulation in the guise of a tax was unconstitutional.
Why did the dealer attack the NFA on these grounds? Prior to the expansive interpretation of the commerce clause to permit Congress to legislate in the areas of health and welfare, begun by the Supreme Court later in 1937 in National Labor Relations Board v. Jones & Laughlin Steel Corporation, the Supreme Court routinely struck down federal legislation that directly regulated health and welfare, on the grounds that jurisdiction over these matters was reserved under the Constitution to the states. To avoid this result, Congress had for some time been using the federal taxing authority as a means of achieving regulatory effects which, if imposed directly, would have been struck down by the Court, and the Supreme Court had upheld this use of the taxing power as long as the statute did not disclose on its face a purpose to engage in impermissible regulation.
The Supreme Court, however, had struck down tax statutes when they were patently used to regulate in an area over which Congress had no jurisdiction. The most famous instance of this was Bailey v. Drexel Furniture Co., known as the Child Labor Tax Case. There, the Supreme Court struck down a federal law that imposed a tax of 10 percent on the net income on any person operating any mine or quarry that employed any children under the age of sixteen, and on any person operating a mill, cannery, workshop, factory or manufacturing establishment which employed children under the age of fourteen, or in which children between the ages of fourteen and sixteen were permitted to work for more than eight hours a day or more than six days a week. Drexel Furniture attacked the constitutionality of the tax on the grounds that it was a regulation of the employment of child labor in the states, an exclusively state function within the reservations under the Tenth Amendment, and the federal government defended the tax on the ground that it was merely an exercise of the federal taxing authority.
The Supreme Court found that the statute's "prohibitory and regulatory effect are palpable," noting that the law was blatantly a use of the power of taxation as a penalty to coerce compliance with the detailed regulations concerning the employment of children. Since the regulation of child labor was a matter of health and welfare reserved to the states by the Constitution, the Court struck down the tax. Sonzinsky, then, believed that the burdensome nature of the cumulative amount of taxes imposed by the NFA also made the prohibitive and regulatory effect of the taxes "palpable," and asked the Court to declare the NFA taxes unconstitutional as an impermissible regulation of firearms that was reserved to the states.
The Supreme Court had no trouble, however, distinguishing the Child Labor Tax Case. The NFA was, on its face, merely a taxing statute. Unlike the law at issue in the Child Labor Tax Case, the NFA prescribed no detailed means for avoiding the tax. The NFA, in other words, did not impose taxes to coerce compliance with regulations that were otherwise constitutionally impermissible.
The Court was unwilling to infer that Congress acted with an intent to engage in impermissible regulation merely from the size of the tax imposed. The Court noted that every tax imposes in some measure an economic impediment to the activity taxed, as compared to activities that are untaxed, and as long as an Act of Congress appears on its fact to be an exercise of the taxing power, the Court would not inquire into the hidden motives which move Congress to exercise the taxing power, or make "collateral inquiry as to the measure of the regulatory effect of a tax, to ascribe to Congress an attempt, under the guise of taxation, to exercise another power denied by the Federal Constitution." The Court thus upheld the NFA taxes as a valid exercise of Congress' power to lay taxes.
Sonzinsky explains why Senator Moynihan is confident of the constitutionality of his plan to control guns by imposing high taxes on ammunition. So long as the statute is merely a taxing statute on its face "and is not attended by an offensive regulation," the Court will not inquire whether the tax is motivated by a desire to accomplish an unconstitutional goal, nor will declare a tax unconstitutional based on a determination by the court that the tax is so burdensome as to achieve, in effect, an impermissible regulatory effect that would be unconstitutional if it were attempted directly.
Sonzinsky, if correct, would appear to be a significant threat to exercise of the right recognized by the Second Amendment, regardless of whether that amendment is understood to recognize a right of individuals to keep and bear arms or a right of the states to maintain or equip militias. Certainly taxes imposed on firearms or ammunition need not reach the exorbitant levels proposed by Senator Moynihan -- 1,000 or 10,000 percent -- before they would have a "chilling" effect on the exercise of those rights. A four-fold increase in the price of all firearms and ammunition -- the level of taxation approved in Sonzinsky -- would certainly severely curtail (legal) demand for these products and result in a massive "downsizing" of the (legal) firearms industry.
Is Sonzinsky correct, though? Notably, the Supreme Court did not directly test the NFA against the Second Amendment, and a case from the 1980s striking down a state's attempt to tax newsprint and ink as a violation of the First Amendment strongly suggests that the decision in Sonzinsky is quite wrong.
Since 1967, Minnesota had imposed a sales tax on most sales of goods at retail and, like most states with sales taxes, also imposed a use tax on the same goods if purchased by residents out of state and brought into the state. Sales of periodic publications like newspapers were, however, exempt from theses taxes until 1971. In that year, Minnesota, while leaving the sales tax exemption in place, imposed a separate use tax (at 4%) on the cost of paper and ink products consumed in the production of a publication. In 1974, it amended this special tax to exempt the first $100,000 worth of ink and paper consumed by a publication in each calendar year.
After this exemption was enacted, only 11 of the state's publishers, in 1974, and 13 of the state's publishers, in 1975, were liable for the tax, and in each of these years the special use tax paid by Minneapolis Star and Tribune Company ("Star Tribune") was roughly two-thirds of Minnesota's total receipts from this tax. Star Tribune brought suit for a refund of the taxes paid in 1974 and 1975 alleging that the special use tax on ink and paper used in publications violated the freedom of the press in the First Amendment and the guarantee of equal protection under the Fourteenth Amendment. The Minnesota Supreme Court upheld the validity of the use tax against this challenge, but the United States Supreme Court reversed.
The Court began by noting that the First Amendment does not prohibit all regulation of the press. A series of Court cases established that the federal government can subject newspapers to generally applicable economic regulations (such as minimum wage laws) without creating constitutional problems. Minnesota, however, chose not to apply its general sales and use tax to newspapers, but enacted a special use tax applicable only to publications, thus singling out the press for special treatment. The question for the Court was whether the First Amendment permitted such special taxation, and the Court concluded that a power to tax the press differentially, as opposed to taxing generally, imposed an impermissible burden on the exercise of First Amendment rights that could not be permitted in the absence of a legitimate and compelling state interest that could not be achieved without differential tax treatment. The Court's analysis here cannot be faulted:
"A power to tax differentially, as opposed to a power to tax generally, gives a government a powerful weapon against the taxpayer selected. When the State imposes a generally applicable tax, there is little cause for concern. We need not fear that a government will destroy a selected group of taxpayers by burdensome taxation if it must impose the same burden on the rest of its constituency. . . . When the State singles out the press, though, the political constraints that prevent a legislature from passing crippling taxes of general applicability are weakened, and the threat of burdensome taxes becomes acute. That threat can operate as effectively as a censor to check critical comment by the press, undercutting the basic assumption of our political system that the press will often serve as an important restraint on government."
Minnesota endeavored to defend the tax on the grounds that it was not more, but less burdensome on the press than application of the general sales tax would have been, because the special use tax applied the same rate of tax as the sales tax (4%), but only to the cost of some of the components of newspapers, and not to the overall retail sales price. Significantly, the Court refused to accept a rule that differential tax treatment of the press was acceptable as long as the tax burden was lighter than that imposed on other taxpayers, and did so for two reasons. First, "the very selection of the press for special treatment threatens the press not only with the current differential treatment, but also with the possibility of subsequent differentially more burdensome treatment. Thus, even without actually imposing an extra burden on the press, the government might be able to achieve censorial effects," because the mere threat of sanctions might deter the exercise of First Amendment rights.
Second, repeating a theme that was also sounded in Sonzinsky, the Court indicated a strong reluctance to determine the constitutionality of taxes by reference to how high or burdensome the taxes were. "[C]ourts as institutions are poorly equipped to evaluate with precision the relative burdens of various methods of taxation. The complexities of factual economic proof always present a certain potential for error, and courts have little familiarity with the process of evaluating the relative economic burden of taxes. In sum, the possibility of error inherent in the proposed rule [to permit differential treatment as long as it is less burdensome than other taxation of general applicability to taxpayers] poses too great a threat to concerns at the heart of the First Amendment, and we cannot tolerate that possibility." Because Minnesota could offer no adequate justification for the special treatment accorded to newspapers, the Court found the special use tax an unconstitutional violation of the First Amendment.
The existing ten percent and eleven percent federal taxes on pistols, revolvers, all other firearms and ammunition (the "Section 4181 Taxes"), and the National Firearms Act taxes on the manufacture and transfer of machine guns (the "NFA Taxes"), single out firearms and ammunition for special, differential treatment. If the Second Amendment merely guarantees the right of states to equip and maintain state militias, the NFA Taxes would not likely violate the Second Amendment, under the standards of Minneapolis Star, for the manufacture and transfer taxes do not apply to sales to states or their political agencies or subdivisions. No such exemption exists for the Section 4181 Taxes, however, and these taxes would be unconstitutional by the standards of Minneapolis Star insofar as they applied to sales of firearms to states or their agencies or political subdivisions.
If, however, the Second Amendment guarantees a right of individuals to keep and bear their private arms suitable for self-defense and for militia use, as is the emerging consensus of historians, constitutional and legal scholars, then by the standards of Minneapolis Star the existing Section 4181 Taxes and, since the standard issue weapon of our nation's military forces, the M-16, is likely persuasive evidence of the type of weapon suitable to militia use, the NFA Taxes, and proposals to further selectively tax firearms or ammunition presented in bills in the 103rd Congress, are unconstitutional violations of the Second Amendment.
Were firearms and ammunition simply subject to a tax of general applicability, such as national sales tax, the tax would present no issue under the Second Amendment, by the logic of Minneapolis Star. However, the threat to the exercise of Second Amendment rights imposed by a differential tax that singles out firearms owners for special and singular treatment imposes a burden on the exercise of those rights that is impermissible in the absence of a legitimate, compelling state interest (i.e., one unrelated to the suppression of firearms ownership, the very right to be secured by the Second Amendment) that cannot be met by the state except by differential treatment. Since the federal government can always raise revenue through taxes of general applicability, it is extremely unlikely that the government can present any such justification.
As in Minneapolis Star, the reasonableness or modest amount of the Section 4181 Taxes is no defense or justification of the differential treatment, for the mere existence of differential taxation whose burden falls on the exercise of a fundamental right guaranteed by the Bill of Rights threatens the exercise of that right through the specter of burdensome taxation in the future. Unlike the facts in Minneapolis Star, this risk is more than merely theoretical in the context of the exercise of Second Amendment rights, for the NFA itself imposed effective levels of taxation of 300 percent on certain firearms (arguably protected by the Second Amendment), and numerous bills have been introduced in Congress providing precisely for higher and unprecedented levels of taxation upon select classes of firearms and ammunition.
Given the Court's avowed reluctance to judge the reasonableness of taxes, its admitted inability to evaluate with precision the relative burdens of various methods of taxation, and its assertion that the possibility of error in this type of analysis is itself intolerable and too great a threat to the security of the rights guaranteed under the First, and presumably all other Amendments that recognize fundamental individual rights under the Bill of Rights, the Court would have little option but to strike down even the modest Section 4181 Taxes. So long as the Court recognized that the Second Amendment guaranteed a right of individuals to keep and bear arms, it could not avoid such a holding without either finding that the right recognized by the Second Amendment was somehow less fundamental than the rights guaranteed by the First Amendment, or, what amounts to the same thing, without getting into the business of judging the reasonableness of taxes imposed on firearms and ammunition.
Gun owners, manufacturers of firearms and ammunition, and firearms dealers need not wait, therefore, until a future bill is enacted imposing further taxes upon firearms or ammunition, or wait until the level of taxes crosses some ill-defined line to become "onerous" or "confiscatory" before challenging this threat to the exercise of Second Amendment rights. The means to effectively challenge such laws have existed since at least 1983, following the lead of Minneapolis Star. Manufacturers or dealers could pursue a deliberate strategy of bringing challenges to the existing federal taxes on firearms and ammunition in various federal courts around the country, and possibly obtaining conflicting decisions among various federal Circuit Courts, to attempt to bring the issue at last before the Supreme Court. Of course, the plaintiffs would have to establish that the Second Amendment protected an individual right to keep and bear, and therefore acquire, private arms suitable to self-defense and militia use.
Doubtless a major obstacle to pursuing this strategy is the fear that, ultimately, the Supreme Court would decide that the amendment did not protect an individual right, or decide that it did protect an individual right but of very narrow scope. Yet in many ways, a case challenging federal excise taxes on firearms and ammunition may be an ideal way to bring the Second Amendment challenge, for the facts can be tailored to avoid requiring the Supreme Court to decide immediately the more difficult, and politically sensitive questions whether the Second Amendment protects the right to own machine guns or "assault weapons," or prohibits background checks on prospective purchasers of firearms. For example, Remington, Winchester and Savage, who manufacture no machine guns or "assault weapons," could challenge the applicability of the Section 4181 Taxes to their entire line of bolt-action and lever-action rifles, and pump-action, semiautomatic and breach loaded shotguns, and thereby establish that the Second Amendment guarantees and individual right to own, at the least, precisely those firearms classified by gun-control proponents as legitimate "sporting" weapons.
Such a suit would be a political powderkeg, for it would force the federal government, through the Departments of Treasury and Justice, to openly take a position in court whether the Second Amendment protected an individual right to keep and bear arms with respect to precisely those firearms that most of America's 70 million gun owners, from bona fide "rednecks" to the most status-conscious members of Ducks Unlimited, regard as acceptable for "sporting purposes," and which cannot be readily branded as the "weapons of choice" of criminals. Any administration and political party concerned with its long-term viability would likely think long and hard before publicly declaring that the Second Amendment did not protect an individual right to keep and bear arms in this context.
Great as the fear is that the Supreme Court, if given the chance, would hold that the Second Amendment did not recognize a right of individuals to keep and bear arms, there is another obstacle to bringing a suit contesting the validity of the federal excise taxes on firearms and ammunition. The Section 4181 Taxes were proposed and enacted with the approval of the Sporting Arms and Ammunition Manufacturers' Institute (SAAMI) to support conservation, wildlife management and hunter safety programs, and currently raise over $140 million a year for wildlife management and habitat acquisition and improvement programs. Depending on the current strength of industry support for the Section 4181 Taxes and the popularity of the programs funded with the proceeds of those taxes, manufacturers, dealers, and perhaps even gun rights organizations may be loath to bring any constitutional challenge to these taxes regardless of its legal merits.
This collaboration of the firearms industry, through its trade organizations, with the federal government to further the recreational interests of hunters and other outdoor sportsmen is a dangerous entanglement that threatens our Second Amendment rights. Without a doubt, the history of support of these taxes by "gun owners" would be raised in any case involving the constitutionality of excise taxes on firearms, as a reason for upholding their constitutionality. This would have to be challenged on the obvious grounds that the Second Amendment is not about the recreational use of firearms or furthering the economic interests of firearms or ammunition manufacturers and dealers. Further, the Second Amendment guarantees a right of individuals, and no industry trade association or gun rights organization has the representational authority to "waive" the constitutional rights of all individuals. That result can be accomplished, if at all, only by a constitutional amendment repealing the Second Amendment.
We know, from Minneapolis Star, that the Supreme Court will not countenance differential tax treatment that burdens or threatens the exercise of a fundamental individual right. What the Court will not do, we also know, is render judgment about the constitutionality of taxes based on an economic assessment of just how burdensome they are. We cannot, therefore, simply condone the imposition of specific excise taxes on firearms so long as they remain modest in amount, believing that we can wait to raise the question when the taxes reach truly burdensome levels, and then contest them on grounds that they have become burdensome. The Supreme Court has already gave its blessing, in Sonzinsky, to taxes of 300 percent, a level high enough to severely curtail exercise of Second Amendment rights by pricing a sizable percentage of the population out of the (legal) market for firearms and ammunition.
To preserve our Second Amendment rights, we need to end the support of the firearms industry for excise taxes that further its interests, and rest on the simple principle the Supreme Court has given us, that differential taxation that selectively burdens the exercise of a fundamental individual right is impermissible. We will not deter, nor prevent the future enactment of proposals like Senator Moynihan's, on any other ground.
. . . wherever any precept of traditional morality is simply challenged to produce its credentials, as though the burden of proof lay on it, we have taken the wrong position. The legitimate reformer endeavors to show that the precept in question conflicts with some precept which its defenders allow to be more fundamental, or that it does not really embody the judgement of value it professes to embody. The direct frontal attack "Why?" -- "What good does it do?" -- "Who said so?" is never permissible, not because it is harsh or offensive but because no values at all can justify themselves on that level. If you persist in that kind of trial you will destroy all values, and so destroy the bases of your own criticism as well as the thing criticized."
--C.S. Lewis, The Abolition of Man (1943)