DOJ Dismisses Indictment of Machine Gun Prosecution While Cert Petition Was Pending

[danb]

I did not find another thread on this case:

https://reason.com/2020/04/22/doj-d...-prosecution-while-cert-petition-was-pending/

Does Congress's power to tax give it the power to punish the possession of unregistered machineguns under § 5861(d) of the NFA, even though it is impossible to register and pay tax on those machineguns, the law generates no revenue, and the only enforcement mechanism is prosecution?

The DOJ decided to dismiss the indictment without confessing error.

Petitioner contends (Pet. 5-13) that 26 U.S.C. 5861(d), as applied to unregistered machineguns, exceeds Congress's taxing power under Article I of the Constitution. In view of the government's pending application to dismiss the indictment, this Court should grant the petition, vacate the judgment below, and remand the case.

So that has not happened in 40 years. Actually quite a Big Deal.

Why did the SG take this strange course? The Affordable Care Act litigation may have played a role in its decision. In Texas v. U.S., the federal government argues that the ACA, which no longer raises revenue, cannot be construed as imposing a tax. The National Firearms Act no longer raises revenue, because the government won't collect the payment. Bronsozian argued that his provision cannot be sustained under NFIB v. Sebelius. As a result, the DOJ would have had to argue that the National Firearms Act, which raises no revenue must be construed as imposing a tax. There is a tension between the two positions. Perhaps the easier path was to simply dismiss the indictment to sustain the Obamacare case.

When is a tax not a tax... when it does not raise revenue.

This is a real problem. Thanks Roberts!

So, when can we all start paying taxes on post 1986 machineguns again...

You know, if this kind of dismissal keeps happening, they will have to open up the registry.

 

[GunBum]

I’d gladly pay the $200 tax

 

[HaveBlue]

Very interesting indeed.

 

[nedsurf]

One can dream...

 

[Tungsten]

I can afford the $200, I can't afford the ammo.......... but I sure would try.

 

[Boats]

If the premise "it isn't a tax because it raises no revenue" was correct.....

why is it called a "tax stamp"?

 

[777GSOTB]

Ooops, looks like someone made a prosecutorial mistake. Another lucky one escapes the hand of corruption.

"The government observed to the court that "a Department of Justice policy direct prosecutors to charge the unlawful possession or transfer of a machinegun made after May 19, 1986 under 18 U.S.C. § 922(o), rather than, as in this case, under 26 U.S.C. § 5681(d)."

 

[HaveBlue]

I can afford the $200, I can't afford the ammo.......... but I sure would try.

Let's take money away from the rotten stuff we already subsidize for people who don't need it and use it to subsidize ammo for those who do!

If I were running for President, I would certainly approve this message.

 

[JMangle]

Can a Lawyer chime in on this one - I'm old enough to have seen about 50 false-hope court cases regarding NFA.

 

[fightinbluhen51]

I think we need the Obamacare cases to finalize before we could use the "it's not a tax if you don't collect it." Which, if I am not mistaken, the whole Miller argument with regards to the tax being the "regulatory" scheme, falls on it's face.

IANAL.