Is the firearms excise tax a tax on a fundamental right?

[gc70]

Then answer me this. Why not a reasonable non-punitive poll tax? If you can have it on guns and free speech why NOT on voting to allow counties to cover the costs of running an election? Seriously, give me a reason.

Strict scrutiny requires that laws that infringe a fundamental constitutional right must be justified by a compelling government interest that is achieved in a narrowly tailored manner that is the least restrictive manner to address the interest. Poll taxes fail the 'compelling government interest' requirement as stated in Harper v. Virginia Board of Elections.

But we must remember that the interest of the State, when it comes to voting, is limited to the power to fix qualifications. Wealth, like race, creed, or color, is not germane to one's ability to participate intelligently in the electoral process. ... To introduce wealth or payment of a fee as a measure of a voter's qualifications is to introduce a capricious or irrelevant factor.

Note that Harper prohibited poll taxes as a condition of voting; states could still assess poll taxes, but could not prevent people from voting if the taxes were not paid.

In this context -- that is, as a condition of obtaining a ballot -- the requirement of fee paying causes an "invidious" discrimination that runs afoul of the Equal Protection Clause. Levy "by the poll," as stated in [p669] Breedlove v. Suttles, supra, at 281, is an old familiar form of taxation, and we say nothing to impair its validity so long as it is not made a condition to the exercise of the franchise.

Is the excise tax on firearms constitutional? Maybe it is; maybe it is not. We will have to see whether anyone wants to challenge the law in court and then see what creative arguments can be presented regarding the compelling government interest that is served by the excise tax and whether there is a less restrictive way in which that interest could be achieved.

 

[Crosshair]

Strict scrutiny requires that laws that infringe a fundamental constitutional right must be justified by a compelling government interest that is achieved in a narrowly tailored manner that is the least restrictive manner to address the interest. Poll taxes fail the 'compelling government interest' requirement as stated in Harper v. Virginia Board of Elections.

OK I can see how that could let taxes on guns and ammo slip by, but on those same grounds then you would admit that the NFA tax would be in violation.

/Very good discussion we are having here.

 

[gc70]

OK I can see how that could let taxes on guns and ammo slip by, but on those same grounds then you would admit that the NFA tax would be in violation.

My opinion is that the NFA might run afoul of the Equal Protection Clause due to the amount of the tax.

The starting point for analysis would be identifying the compelling government interest that the NFA is trying to achieve. You can't evaluate the least restrictive means of doing something until you know specifically what you are trying to do.

BTW, the above assumes that all aspects of the Second Amendment right would qualify for strict scrutiny, which has not been established at this point.

 

[44 AMP]

The NFA TAX....

Was, at the time clearly intended to be prohibitive. A $200 tax on a $5 item (a cheap sawed off shotgun, as just one example) that had never been taxed before.

No matter what the stated intent, the effect was clearly prohibitive for the majority of citizens. Also gave a bunch of Feds something to do, since Prohibition had been recently repealed.

We have a couple of different things under discussion here, and I think we ought to separate them a bit.

CAN you tax a fundamental (natural) right? (legally, Constitutionally, etc.)

SHOULD you tax a fundamental (natural) right? (morally)

Pretty obivous you can, since we are in that situation currently. At least until we can get a court to rule otherwise. And at what point does the tax become onerous to the exercise of the right?

And which rights are to be taxed, and how? How are we taxed on our right to a speedy trial?

To me, the answer is basically simple. We pay taxes to the govt for it to run. Anything that does not have a specific dedicated revenue stream is paid for from the general fund. And that money comes from our taxes, big and small, from us as individuals, and as corporations in various ways, and from import duties and levees.

Govt services protecting every right you can think of are paid for with taxes, so you could consider them taxation on basic fundamental rights, couldn't you?

But specific taxes on some rights? With guns, the taxation is not denying you or I our right. All it is, is a small charge on the most common method used to exercise that right. You can still exercise your 2nd Amendment rights without paying the govt any tax for doing so. It just isn't easy, or as efficient.

And no law prevents you from doing so. As long as the law doesn't prohibit you, the govt is not denying you the right. Officially.

 

[full.tang.halo]

My question/argument of the NFA isn't so much the $200 tax stamp being excessive, but more the 86 closing of the full-auto registry becoming a de-facto tax on the 2nd amendment rights. In the same way that the poll tax restricted "poor" blacks/whites from voting, the 10 fold increase in prices for full auto due to that closing, a colt m16 that can be bought by police forces for 1k are 12k+ for a transferable example, is 1/3 or more the yearly income of a working class American. If that isn't a restriction of a "fundamental right" via economic means, I really don't know what is.

 

[Glenn E. Meyer]

Isn't the problem with full auto guns is that we don't have a decision saying that they are protected by the 2nd Amend. for civilians to own freely.

If they are not and the government wants you to pay to own them, then they are not specially protected by constitutional rights. We tax all kinds of stuff that isn't protected.

 

[Mike Irwin]

"Irrelevant. All you have done is made an argument against punitive taxation."

Actually, my examples are perfectly relevant, Crosshair.

The original question was one of taxing a fundamental right. I and others have shown that, as long as the tax is not applied in a punitive manner designed to prevent something, it's legal.

"Why is it OK to tax one right beyond legitimate sales taxes, but not another?"

Because the Constitution allows the Federal Government to levy taxes, including excise taxes - Section 8.

Nothing in the Bill of Rights says that "You shall not tax any of this stuff because it's sacrosanct," nor have the courts said that, either.

Nor does the BOR say "If you do one, you HAVE to do them all."

The same concept applies to regulation of a fundamental right. Nothing in the Constitution or Bill of Rights says that those listed rights are absolutely involatile; even the Framers recognized that, and the Supreme Court has upheld that repeatedly.

 

[Tom Servo]

I agree with 44 Amp: the NFA was meant to be prohibitive. 1934 was the trough of the Depression, and $200 was a king's ransom. Only the richest segments of society could hope to pay the tax, which had the effect of punishing the middle and lower classes.

My question/argument of the NFA isn't so much the $200 tax stamp being excessive, but more the 86 closing of the full-auto registry becoming a de-facto tax on the 2nd amendment rights.

Good point, but proving that an explicit tax is unconstitutional is one thing. Proving that a measure counts as a defacto tax, then challenging its constitutionality, is another.

 

[n7qvu]

TTB

Just for the record, BATF does not collect or have anything to do with excise tax.

TTB.gov collects excise tax for the US Treasury Dept.
TTB=Tax & Trade Bureau.
They collect excise tax also for Alcohol and Tobacco sales.

One of the most recent issues with TTB was that they want it paid every two weeks. Many folks were complaining that NO other tax agency collects this often, thus creating a hardship on manufacturers.

They only collect from manufacturers on complete items(firearms & ammo), so I've heard of people buying parts(no tax) and assembling a rifle w/o paying any excise tax.

BTW: They want their excise tax, even if the firearm isn't sold but kept in-house...

 

[Crosshair]

Actually, my examples are perfectly relevant, Crosshair.

No they are not

The original question was one of taxing a fundamental right. I and others have shown that, as long as the tax is not applied in a punitive manner designed to prevent something, it's legal.

True, but then a non-punitive poll tax should be legal.

"Why is it OK to tax one right beyond legitimate sales taxes, but not another?"

Because the Constitution allows the Federal Government to levy taxes, including excise taxes - Section 8.

You are again missing the point. The point is not "can they levy taxes?", but "Why are the taxes leveled inconsistently." No tax for voting, but an 11% tax on guns?

Nothing in the Bill of Rights says that "You shall not tax any of this stuff because it's sacrosanct," nor have the courts said that, either.

Red herring. I'm not arguing that.

Nor does the BOR say "If you do one, you HAVE to do them all."

No, but any legal system requires CONSISTENCY in the law, otherwise the legitimacy and respect for that law is undermined.

Lets have an example. Milk is taxed at 4%, Orange Juice is taxed at 4% Coffee is taxed at 4%, but soda is taxed at 20%. How can someone justify the low taxes on one beverage, but high taxes on another beverage?

Another real example is how blacks are far more likely to be sent to prison than whites for the same offense. Inconsistency in application of the law undermines the laws legitimacy and respect for the law. Just as blacks are jailed more than whites, the right to bear arms is taxed far more than the right to vote. Even though there exists legitimate reasons to tax both. Punitive taxation has been applied to both at some time in the past.

The same concept applies to regulation of a fundamental right. Nothing in the Constitution or Bill of Rights says that those listed rights are absolutely involatile; even the Framers recognized that, and the Supreme Court has upheld that repeatedly.

Another Red Herring, I'm not arguing that.

I'm asking why the inconsistency

 

[vranasaurus]

True, but then a non-punitive poll tax should be legal.

Poll taxes are illegal because of the 24th amendment. Why should something be legal if specifically prohibited in the constitution?

Excise taxes, which are taxes levied on the production or sale of specific products, are authorized by the constitution.

If and when an amendment to the consitution states: "No excises shall be levied on the production or sale of firearms" then your argument would hold water.

Lets have an example. Milk is taxed at 4%, Orange Juice is taxed at 4% Coffee is taxed at 4%, but soda is taxed at 20%. How can someone justify the low taxes on one beverage, but high taxes on another beverage?

There is nothing to prevent the government from doing just that. There have been some state and local governments that have put in place additional taxes on non diet sodas.

 

[brickeyee]

the right to bear arms is taxed

It is not the bearing of arms that is taxed, but the sale of arms.

So build your own gun.

There are sales taxes on newspapers and books, and these have been upheld.

 

[gc70]

You are again missing the point. The point is not "can they levy taxes?", but "Why are the taxes leveled inconsistently." No tax for voting, but an 11% tax on guns?

Your focus on what you perceive as inconsistency oversimplifies the question. A tangible item such as a gun has a monetary value and tangible items are traditionally taxed at a portion or percentage of their monetary value (i.e. 5% X $100 = $5). Voting is an intangible that has no monetary value - well, except possibly in cities like Chicago - so it is impossible to assess a tax at a percentage of a value that does not exist (i.e. 5% X $0 = $0).

Lets have an example. Milk is taxed at 4%, Orange Juice is taxed at 4% Coffee is taxed at 4%, but soda is taxed at 20%. How can someone justify the low taxes on one beverage, but high taxes on another beverage?

It may only be your perception that soda is inconsistently taxed. If all beverages are taxed at 4%, but all products with a certain sugar content are also taxed at 16%, a 20% soda tax would be perfectly consistent with the tax structure.

 

[Buzzcook]

The money goes for conservation related activities. As far as I know, it is one of the few dedicated funds that the vultures in Congress have not been able to rob blind to fund their pet social projects.

Conservation "is" a social project.

 

[TexasFats]

The tax on sporting arms and ammunition were put in place, at the request of sportsmen, as part of the Pittman-Robertson Act as a way of raising money for state conservation departments. This happened back in the 1930's. More recently, it has also been extended to archery equipment and fishing tackle. I know that this does not address the original question, but it is a brief history of the act.

 

[Al Norris]

To add to what TexasFats wrote, some years later, the Congress proposed to lift the tax and sportsman literally howled! They didn't want the tax removed. It was working and they wanted it to keep working.

So what we have is a very compelling governmental interest (keeping game at levels sportsmen could live with) that narrowly tailored a law (a tax used to manage game) and has the least effect on a right (hunting) in relation to the interest of the government.

As long as the Congress keeps their hands off of this revenue stream, the tax meets strict scrutiny.

 

[Mike Irwin]

"No, but any legal system requires CONSISTENCY in the law, otherwise the legitimacy and respect for that law is undermined."

Now that's a true red herring as it pertains to this discussion.

Please trot out one piece of case law that states, or even infers, that if one item is taxed, ALL items of that same class must be taxed at the same rate in an effort to promote some sort of "consistency".

I'll save you the effort - there isn't one.

The best example of this is alcohol. In the earliest days of the Republic different types of liquor were taxed at different rates depending on the actions of Congress.

Imported wines were taxed at various times at rather high rates as luxury items, while imported distilled liquors and domestically produced distilled liquors were taxed at different rates.

To the best of my knowledge, no suit ever brought challenging the rates charged on various types of alcohol was ever upheld.

 

[BlueTrain]

I didn't know we had a right to go hunting.

 

[oneounceload]

Besides, you can avoid the tax on a gun if you buy from a private indifividual.

No, it is levied at the manufacturing level - buying a gun from an individual just means it has already been paid.

There are no Federal Ranges in my state and only two State run ranges that I am aware of.

As to Federal gun ranges - I lived out West for years and in two locales it was P.R. money that we applied for that enabled us to build our ranges, including machines, a large club house, hunter-ed supplies, etc.

No tax for voting, but an 11% tax on guns?

You're missing the point - this excise tax was self-imposed at the request of the populace, not arbitrarily imposed by a government seeking general funding

 

[Al Norris]

I didn't know we had a right to go hunting.

It's nestled right next to the right to travel.