"the power to tax involves the power to destroy,"

M

mehavey

New member
so said Chief Justice John Marshall in McCulloch v. Maryland circa 1819 in that states "have no power, by taxation or otherwise, to retard, impede, burden or in any manner control the operations of the constitutional laws enacted by Congress."

Apparently that's lost on the good city of Seattle
http://www.foxnews.com/us/2015/12/2...despite-challenge-from-gun-rights-groups.html

And make no mistake, the power to preferentially tax something out of common access by The People will be used no less than direct attack on the object it self -- and a way for counties/municipalities to get around any State preemption laws.

As Tom Servo says in another, related, post:

"This has one, and only one, purpose. It has only one intention.
That is to make life harder on all gun owners."

.
 
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...King County Superior Court Judge Palmer Robinson...
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Around me, county judges are often either appointed or run unopposed in elections after being nominated by county central committees, especially in areas as unilaterally dominated as Seattle seems to be. Usually for pretty limited terms. Much more important who you drink with than knowledge of law or objectivity. Very unlikely to go against the party line. I'm willing to bet everyone was expecting this and it was viewed from the offset as a stepping stone to another court.
 
Does anyone have a link to the text of the actual decision? I'm wondering if this is another 2A case in which the lower-court judge punted and issued a grossly simplistic and partisan decision, under the assumption that the decision would be appealed no matter what he/she said.
johnwilliamson062 said:
Around me, county judges are often either appointed or run unopposed in elections after being nominated by county central committees, especially in areas as unilaterally dominated as Seattle seems to be.
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Same here, although one foible of TX law is that most county judges do very little actual judging; their main duty is to oversee the County Commissioners' Court, whose main duty is to oversee the county budget. That said, the process is the same – my understanding is that, in most cases, the Democratic and Republican Party committees determine the candidates by literally holding a meeting and asking "OK, who in the room wants to run for County Judge?" :rolleyes: There's seldom any real jockeying, and it's a reasonable assumption that a reliably partisan lackey will usually hold the position.

I'm curious if someone more familiar with WA will chime in on this.
 
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Cities are not allowed to enact their own gun laws in WA, but that hasn't kept them from trying.
Restraining any other comments as they are not directly related to L&CR....
 
So lets see a tax, for the public benefit, on registered voters, and another on permits for protest gatherings. Maybe a nickel tax on blog posts, and $25 on keyboard purchases, too.
 
So lets see a tax, for the public benefit, on registered voters
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IIRC, that was called a "Poll Tax" in days of yore and was abolished by the 24th amendment.
 
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mehavey said:
She says that the Fees "...are not to regulate... but to tax for public benefit...."
The grease on that slope is mighty slick indeed.
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To me, this is the first obvious flaw in the decision. It's plainly evident that a tax can serve as a regulation (re: the NFA).

The second obvious flaw is encapsulated in this quote from Page 3 of the Memorandum Opinion, my emphasis in boldface.
[The tax] does not place any burden or restriction on the plaintiffs in terms of their conduct other than to require payment of fees and it does not prescribe any other activity other than the non-payment of sums set forth in SMC 5.50.030(B).
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This facile statement overlooks the readily evident fact that the tax places sellers operating inside Seattle at an obvious competitive disadvantage to those outside the city, as the ordinance creating the tax does not restrict Seattle residents from buying firearms and ammo elsewhere, including by mail-order. This obviously imposes a specific and unfair burden on local Seattle sellers.

This burden is particularly acute because the ordinance applies to everyone "engaging... in the business" of selling firearms and ammo in Seattle.
5.50.030 Tax imposed; rates

A. There is imposed a tax on every person engaging within the City in the business of making retail sales of firearms or ammunition. The amount of the tax due shall be equal to the quantity of firearms sold at retail and the quantity of ammunition sold at retail multiplied by the applicable tax rates that are stated in Section 5.50.030.B.

[5.50.030(B) thru 5.50.050 omitted]

5.50.060 Exemptions

A. A person who sells no more than one firearm within the City in any quarterly tax reporting period is exempt from the tax on the business of making retail sales of firearms for that period.
B. A person who sells fewer than 50 rounds of ammunition within the City in any quarterly tax reporting period is exempt from the tax on the business of making retail sales of ammunition for that period.
C. A licensed dealer is exempt from the tax for retail sales of firearms in which the licensed dealer’s only role is to facilitate sales of firearms between two unlicensed persons by conducting background checks under chapter 9.41 RCW.
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There are no other exemptions.

"Engaging in the business" per the Seattle Municipal Code means...
5.30.030 - Definitions, E—F
[A. omitted]
B. "Engaging in business"
1. The term "engaging in business activity" means commencing, conducting, or continuing in business, and also the exercise of corporate or franchise powers, as well as liquidating a business when the liquidators thereof hold themselves out to the public as conducting such business.
2. This section sets forth examples of activities that constitute engaging in business in the City, and establishes safe harbors for certain of those activities so that a person who meets the criteria may engage in de minimis business activities in the City without having to register and obtain a business license tax certificate or pay City business and occupation taxes. The activities listed in this section are illustrative only and are not intended to narrow the definition of "engaging in business" in subsection (1), above. If an activity is not listed, the issue of whether it constitutes engaging in business in the City shall be determined by considering all the facts and circumstances and applicable law.
3. Without being all inclusive, any one of the following activities conducted within the City by a person, or its employee, agent, representative, independent contractor, broker or another acting on its behalf constitutes engaging in business and requires a person to register and obtain a business license tax certificate:
[a.-b. omitted]
c. Soliciting sales;
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Pretty broad, huh?

So anyone selling more firearms or ammo than what is spelled out in 5.50.060 is "engaging in the business", which means they must get a license...
5.55.030 - License requirements

A. No person, unless specifically exempted, shall engage in any business activity, profession, trade or occupation in the City without having first obtained and being the holder of a valid and subsisting license to do so, to be known as a "business license tax certificate." The fee for the business license tax certificate shall be $110 for persons with worldwide gross income of the business and value of products of more than $20,000 in the current calendar year that engage in any business activity, profession, trade or occupation in the City prior to July 1st and $55 for persons beginning their activity on or after July 1st. The business license tax certificate fee for persons with worldwide gross income of the business and value of products of $20,000 or less in the current calendar year will be $55 if prior to July 1st and $27.50 for persons beginning their activity on or after July 1st. The fee shall accompany the application for the license.
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The requirement for a license subjects the licensee to all sorts of record-keeping requirements, which I'll omit for the sake of brevity.

However, here's the bottom line: selling ONE 500-ROUND BRICK OF .22LR in Seattle legally makes one subject not only to the tax, but also to the business license requirements!

This sure seems like a burden to me, although it may not apply to the plaintiffs specifically, and I don't know if they made this argument in court.
 
My question is, is it even legal to tax any right whatsoever, because at some point, regardless of how small the tax is, there will be those who cannot exercise that right because of lack of funds. This should apply to firearms as well as any other right granted us by the Constitution.
 
ronl said:
My question is, is it even legal to tax any right whatsoever, because at some point, regardless of how small the tax is, there will be those who cannot exercise that right because of lack of funds.
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The counter-argument seems to be that the city isn't taxing the possession of the items – only their acquisition within Seattle. People are still welcome to purchase the items outside of Seattle, including via mail-order; the ordinance specifically exempts FFL transfers.

However, I'd argue that the ordinance clearly seeks to drive lawful commerce in arms and ammunition out of the city, and is thus an illegal regulation dolled up as a lawful tax. :mad: Notably, as I detailed in my prior post, the ordinance makes it near-impossible to hold a gun show in Seattle, as anyone selling at such a show would invite the Seattle tax authority's scrutiny by "soliciting sales" in an open public forum.
 
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My question is, is it even legal to tax any right whatsoever, because at some point, regardless of how small the tax is, there will be those who cannot exercise that right because of lack of funds. This should apply to firearms as well as any other right granted us by the Constitution.
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Whoa there matey, always remember, the Constitution does not "grant" us any of our rights. They are pre-existing rights we have from Nature (or God for the religious). The only entity granted anything by the Constitution is the federal government. And the Bill of Rights was originally not even seen as necessary by the Founders who were Federalists, because as they saw it, the government couldn't infringe on rights as it was granted no power to do so by the Constitution. To quote Alexander Hamilton (who himself was a proponent of a much more powerful federal government then the one created by the Constitution):

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.

~~~Federalist 84
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The reason why the Bill of Rights was added to the Constitution after ratification was because the anti-Federalists would not support ratification without one, and the Federalists needed their support. In hindsight, IMO, both the Federalists and the anti-Federalists were correct, as the existence of the Bill of Rights has meant that many have seen fit to interpret its existence as the government having certain powers it does not have (Federalist position), however on the other hand, given how the government has sought to infringe on the rights listed in the BoR, the anti-Federalists were also smart for calling for its addition.

Another common misconception is when people say, "X is not a Constitutionally-protected right..." that takes the view that if something is not mentioned explicitly in the BoR, that it was not seen by the Founders as being a natural right that the government has no power to infringe upon. But the BoR only was a list of ten rights that were seen as most important to list, but not all the natural rights. For example, the right to acquire food and water also was understood, but that was considered so obvious that it was not seen that an amendment be written to protect those.
 
Much of America does not have the right to acquire food and water. Not without making a monetary contribution.
Many cities will fine for gardens. Let you hunt without strict rules?
Don't let modern politics fool you into thinking that you are free. And they will tax every civil right if they could get away with it.
 
It should be pointed out that—RKBA arguments aside—excise taxes specific to firearms and ammunition are pretty much settled law.

I think the best argument here is narrower: WA state law preempts cities from enacting regulations on firearms or ammunition, and although the City of Seattle argues that this ordinance is a lawful excise tax, it actually functions as a regulation by placing an unfair burden on local Seattle sellers, and is therefore in conflict with the WA preemption statute.
 
Much of America does not have the right to acquire food and water. Not without making a monetary contribution.
Many cities will fine for gardens. Let you hunt without strict rules?
Don't let modern politics fool you into thinking that you are free. And they will tax every civil right if they could get away with it.
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I never said that there weren't infringements on the right to food and water, I said that it was a right seen as not being at risk enough of infringement to be added to the BoR.
 
It should be pointed out that—RKBA arguments aside—excise taxes specific to firearms and ammunition are pretty much settled law.
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Remember though that the argument that the Second Amendment protects a right of states to maintain militias was pretty much "settled law" until it was found to be completely bogus.
 
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