May 18, 2007

Butter Me Up

In a tax case from 1904 called McCray v. U.S. I found the following:

"Let us concede that, if a case was presented where the abuse of the taxing power was so extreme as to be beyond the principles which we have previously stated, and where it was plain to the judicial mind that the power had been called into play not for revenue, but solely for the purpose of destroying rights which could not be rightfully destroyed consistently with the principles of freedom and justice upon which the Constitution rests, that it would be the duty of the courts to say that such an arbitrary act was not merely an abuse of a delegated power, but was the exercise of an authority not conferred. This concession, however, like the one previously made, must be without influence upon the decision of this cause for the reasons previously stated -- that is, that the manufacture of artificially colored oleomargarine may be prohibited by a free government without a violation of fundamental rights."

The case itself was about an allegation of improper taxation on oleomargarine & it was argued (in part) that because the tax was designed not to raise revenue, but to regulate &/or proscribe a product then it was unconstitutional. The court decided against the plaintiff but left open, through implication, the idea that if a tax was enacted with the purpose or perhaps even the primary effect of regulating an act that it could not otherwise lawfully touch, then it may perhaps be ruled unconstitutional.

All that is to say that it seems to be a good angle to attack the NFA on if a 2nd amendment based argument might not prevail in a certain jurisdiction. The reader who sent me this case also opined:

"BTW, the fact that the '86 FOPA forbids the registration of new full-autos is, IMHO, a violation of both the 2nd Amendment (because the '34 NFA is unconstitutional, as you've brought out in this article), but because it forbids the government from collecting a tax (as I understand it) - and what could more emphatically prove that the tax in question (imposed by the NFA) was designed to destroy/regulate?. I'd love to see a challenge to the '86 FOPA based on this."

So many thanks to reader PW for the link to the case as well as the commentary on its possible effects on the NFA. Maybe someone could do something with it someday.

Posted by Publicola at May 18, 2007 02:31 AM | TrackBack