More mythology on the Constitution

[Seth]

The plan was for government, which was to be small to begin with, to be funded by taxes levied on commerce, not on individual income.

Where in that original power of the Constitution does it say "commerce"?

"The Congress shall have Power To...regulate Commerce...among the several States....
Article I, Section 8, Clause 3" Source

That says "regulate". Where does it say that regulating commerce means that taxation can't include income tax? That's some terrible logic, even by your standards, Seth.

It doesn't, the prohibition on direct (income) taxes lie elsewhere, as pointed out by laklak. Besides, the authority to "lay and collect taxes" is granted separately from the authority to regulate commerce "among the several states." As I said, the original intent was that the federal government was to be funded with excise taxes and duties on goods, which is why "direct" taxes were regulated separately and "apportionment" of such direct taxes was required. What that means is that a "direct tax" cannot simply go into the government general fund kitty to be used by Congress as it pleases, as Congress does today, rather it must be distributed to the STATES proportionally to their population. Therefore, Congress was not technically forbidden from collecting "direct taxes," but if it did so it could not keep them for its own use in funding the federal government but rather it had to apportion the collected taxes to the states themselves for use. The liberal/Progressive Congress of Wilson's time, and the Democrat majorities that elected them did not like the fact that Congress could only collect duties and imposts on goods because it didn't give the federal government enough money to wield power over the states, which is exactly what Progressivism desires, so the 16th Amendment was passed and is now law.

The whole purpose of the apportionment constraint on direct taxes was to prevent precisely and exactly what the 16th Amendment did, which was to put the incomes of the citizenry under the thumb of Congress so it could extract more and more and more money to fund Progressive plans. The tax was originally touted as a way to pay for the costs of WWI and was promised to never exceed 7 percent of anyone's income, and it was supposed to be repealed once the bills for the war were paid, but like any good Progressive, the Democrats simply refused to let it be repealed and continually expanded the percentages it takes from citizens to fund the Progressive government.

The 16th Amendment and the 17th Amendment providing for direct election of Senators were both passed at nearly the same time, by the same Progressive majorities that flourished just prior to the "roaring 20's" when Warren Harding and Calvin Coolidge, both Republicans, freed the economy from the oppression of the Wilsonian Progressives and the economy literally roared to life and prosperity...right up until the crash of 1929, after which FDR's ham-handed Progressive/socialist attempts at fixing things only made the Great Depression worse and extended it for at least a decade.

So, it's liberal/Progressive/socialists who are ultimately responsible for turning away from the time-tested system of checks and balances created by the Founders, which worked fine for the first 125 years of this nation's history.

[Forty Two]

Article 1, Section 8 specifies the powers that Congress has:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

Oh, wait. Your hallowed Founding Fathers enshrined the right to what you regard as theft in your Constitution?

Where in that original power of the Constitution does it say "income tax?"

The problem wasn't necessarily that it was a tax on incomes. It was the fact that the income tax was not apportioned based on state populations. Prior to the 16th Amendment, direct taxes had to be apportioned by state population under the Constitution. An apportioned income tax however, was at the time considered unfair by many, but the purpose of the apportionment requirement was to restrain the exercise of the power of direct taxation to extraordinary emergencies, and to prevent an attack upon accumulated property by mere force of numbers.

The pro-progressive tax position is that the tax burden should, in fact, be on accumulated wealth rather than on consumption. So, the big push by populists and progressives 100+ years ago was to tax accumulated wealth and high incomes. And, that led to the push for the first inheritance tax, the corporate income tax, and then the 16th Amendment, which just removed the "apportionment" requirement and since then the income tax has had no real barrier.

[Forty Two]

Article 1, Section 8 specifies the powers that Congress has:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

Oh, wait. Your hallowed Founding Fathers enshrined the right to what you regard as theft in your Constitution?

Where in that original power of the Constitution does it say "income tax?"

It's somewhat below the bit where it says that automatic weapons are arms too. I take it you haven't read that far down.

Automatic weapons aren't constitutionally protected arms, and they're illegal in the US, and have been for decades.

[Forty Two]

The plan was for government, which was to be small to begin with, to be funded by taxes levied on commerce, not on individual income.

Where in that original power of the Constitution does it say "commerce"?

"The Congress shall have Power To...regulate Commerce...among the several States....
Article I, Section 8, Clause 3" Source

That says "regulate". Where does it say that regulating commerce means that taxation can't include income tax? That's some terrible logic, even by your standards, Seth.

Nowwhere. The first income tax was not invalidated because it was an INCOME tax. It was invalidated because it was ruled a "direct" tax and also was not apportioned according to state populations. https://en.wikipedia.org/wiki/Pollock_v ... 6_Trust_Co.

There was an income tax in the 1860s to fund the civil war, which was not invalidated.

It wasn't that the proceeds had to be divvied out to the states in a certain way. It's that the tax had to be IMPOSED in accordance with the populations of the states such that they were taxed in accordance with the proportion of representation. I.e., if all the millionaire landlords lived in Ohio, and all the poor landlords in Mississippi, then you can't tax their rental income at 3%, because then the Ohioans are paying a higher percentage based on population than the Mississippians.

I.e., again - The rule of apportionment required the amount of a direct tax collected to be divided by the number of members in the United States House of Representatives, with the quotient then multiplied by the number of representatives each state has to determine each state's share of the tax that it then needed to lay and collect, through its own taxing authority.

Congress has had the power to lay and collect an indirect tax on incomes (such as wages and salaries) from the beginning of the American Government under the United States Constitution of 1787. The Sixteenth Amendment was to prevent the tax on income from property, which Pollock had ruled was direct, from having to be apportioned. It did so by declaring that Congress could tax income from any source without apportionment.

The Supreme Court, in Stanton v. Baltic Mining Co., added that the "Sixteenth Amendment conferred no new power of taxation but simply prohibited the previous complete and plenary power of income taxation possessed by Congress from the beginning from being taken out of the category of indirect taxation to which it inherently belonged." 240 U.S. 112 (1916). In other words, the Pollock decision invalidating the income tax at issue in that case was controversial, was only a 5-4 decision, with strong dissents, and ultimately the SCOTUS said in Stanton that the Congress already had the plenary power of income taxation, but the 16th Amendment made sure that the power could not be limited by having an income tax determined to be "direct" and thus subject to apportionment. This effect was reaffirmed in Bowers v. Kerbaugh-Empire Co., 271 U.S. 170 (1926), in which the Supreme Court reviewed Pollock, the Corporation Excise Tax Act of 1909, and the Sixteenth Amendment. It concluded, "It was not the purpose or effect of that amendment to bring any new subject within the taxing power. Congress already had power to tax all incomes."

[Seth]

Automatic weapons aren't constitutionally protected arms, and they're illegal in the US, and have been for decades.

Actually, they are, and no, they are not. There are nearly half a million Class III NFA items in private hands, including hundreds of thousands of automatic weapons (machine guns). It is illegal in some states to own them, but those states are in the severe minority.

Under the National Firearms Act of 1934 all fully-automatic weapons have to be registered on the NFA registry, and a $200 transfer tax is levied on every transfer of ownership of any Class III item, which includes machine guns, short rifles, short shotguns, silencers and "destructive devices".

The reason that the NFA exists, and is structured as a registration/tax scheme is precisely because possession of machine guns is protected by the 2nd Amendment because machine guns are part of the ordinary equipment of the individual soldier and are thus the keeping and bearing of them by private citizens is protected by the Militia Clause of the 2nd Amendment and Article 1, Section 8, Clause 12 of the Constitution.

The Congress was fully aware of this fact when it enacted the NFA, and it was also fully aware of it when the amendment to the FOPA was passed and grudgingly signed into law by Ronald Reagan because the benefits to gun owners were substantial compared to the relatively small impacts on machine gun owners, who have always been a small numbers of all gun owners. That's why both the machine gun manufacturing ban, and the Clinton-era "assault weapons" ban were both drafted as Commerce Clause controls on the manufacture and sale of such firearms and NOT as bans on the ownership or possession of them.

If the anti-gun punditry about the 2nd Amendment foisted off by Tero were remotely true, the Clinton Congress, or the Obama Congress under democrat control most certainly would have completely banned the possession of such firearms and "rounded them all up", as Dianne Feinstein once infamously said. But such punditry is not correct, and the NFA registry proves it.

In order to obtain an NFA item, either from a licensed manufacturer or another individual, you must make application to the BATFE NFA section on a Form 4 and pay the tax. A background check is performed by the BATFE before sending back the approval for transfer, which can take a year or more to complete because the government deliberately slow-boats all NFA transactions. They were supposed to have an on-line system for Form 4 transfers some three years ago, but it's been repeatedly "delayed" by "issues," the primary issue being Obama, who has ordered the NFA section to delay paperwork as much as possible. Also, the section is swamped with tens of thousands of applications for NFA transfers, mostly for silencers, which have become all the rage these days. I myself have two, a .223 silencer for my M-4 and a .338 can for my heavy rifles of .30 caliber and up.

There is a strong lobby in Congress to amend the NFA to make the legal transfer of silencers exempt from the prior-approval requirements of the NFA.

As for machine guns, the reason you think that machine guns are "illegal in the US and have been for decades" is because of a quirk in the law put in place in 1984 that doesn't make machine gun ownership illegal, but which (rather unconstitutionally IMHO) prohibits the new manufacture of any machine gun intended for sale to anyone other than a law-enforcement agency or the military.

In essence it's a manufacturing and distribution ban which was enacted under Reagan that invokes the Commerce Clause. The Firearms Owners Protection Act of 1986 was enacted primarily to prohibit the BATFE from harassing gun owners and FFL licensees, which it had been doing for years with unscheduled and repeated audits. However, a late amendment was inserted through typical Democrat chicanery that banned the sale of machine guns to civilians. This provision can be easily repealed at any time.

The main upshot of the amendment was to drive the price of existing registered machine guns through the roof, and pretty much nothing else. An HK MP5 submachine gun sold to the police or military sells for about $800 today. A 30 year old HK MP5 machine gun on the NFA registry as of 1986 sells for in excess of $15,000 on the civilian market.

On the other hand, the purported intent of the amendment, which was to restrict machine gun sales because they were purportedly "weapons of choice" for criminals, was not achieved, and in fact was never intended to be achieved. As it happens, in the entire history of the NFA registry, from 1934 on, there has been only one verified homicide committed by a registered NFA machine gun owner with the registered machine gun.

Just one, out of more than 240,000 registered machine guns in private ownership.

So no, it is not illegal to own a machine gun in the US, it's just very hard to find one and very expensive to acquire it because of the finite number that are currently available for purchase. If we repeal that section however the price will drop and machine guns will become much more available. We'll be working on that once Obama is out of office and we have both a Republican President and a Republican Congress.

[JimC]

Seth wrote:

...We'll be working on that once Obama is out of office and we have both a Republican President and a Republican Congress...

[Tero]

And what is the purpose of the machine gun? To defend against home invasion by machine gun? The criminals will just get 2 machine guns! Because "the criminals will get any gun they want" whether we register or not.

[Jason]

That's precisely why it is necessary for law-abiding, god-fearing, Americans to arm themselves with rocket propelled grenade launchers loaded with purpose-built anti-personnel fragmenting high-explosive ammunition. To defend against criminals armed with two or more machine guns.

[Seth]

And what is the purpose of the machine gun?

To eject projectiles at high velocity in a specified direction in rapid succession.

To defend against home invasion by machine gun?

Mostly to put holes in paper, tin cans, wrecked autos and other fun stuff, but also to put holes in an enemy when necessary, which is the role of any firearm.

The criminals will just get 2 machine guns!

Er, they already have them...illegally, which is why we need them legally for self-defense...and defense of the nation.

Because "the criminals will get any gun they want" whether we register or not.

Exactly correct.

[Seth]

That's precisely why it is necessary for law-abiding, god-fearing, Americans to arm themselves with rocket propelled grenade launchers loaded with purpose-built anti-personnel fragmenting high-explosive ammunition. To defend against criminals armed with two or more machine guns.

You can own an RPG and rockets if you like, if you can find one that's been legally imported, which is pretty much impossible. You just have to put them on the NFA registry. Interestingly, if one has the proper FFL, one can MANUFACTURE an RPG and launcher, and the machine gun sale ban doesn't apply to RPGs.

[Jason]

That's precisely why it is necessary for law-abiding, god-fearing, Americans to arm themselves with rocket propelled grenade launchers loaded with purpose-built anti-personnel fragmenting high-explosive ammunition. To defend against criminals armed with two or more machine guns.

You can own an RPG and rockets if you like

I'm aware.

What I'm wondering at is where the 'defensive' arming ends. Do you feel secure enough in owning an RPG or do you require a tactical nuke or perhaps something even larger?

[Seth]

That's precisely why it is necessary for law-abiding, god-fearing, Americans to arm themselves with rocket propelled grenade launchers loaded with purpose-built anti-personnel fragmenting high-explosive ammunition. To defend against criminals armed with two or more machine guns.

You can own an RPG and rockets if you like

I'm aware.

What I'm wondering at is where the 'defensive' arming ends. Do you feel secure enough in owning an RPG or do you require a tactical nuke or perhaps something even larger?

Nukes are "weapons of mass destruction" and therefore don't qualify and that canard is but an appeal to the consequences of a belief fallacy.

But, I do know people who own tanks, artillery and other large-bore weapons, along with ammunition for them. Interestingly, the only crime committed by a civilian with a tank was committed by a guy who STOLE IT from a National Guard armory because the idiots there didn't think to put a padlock on the turret hatch. Now they remove the batteries when the tanks are in storage.

Why should there be an "end" to what "arms" a law-abiding American can own? So long as it's kept and borne in a law-abiding fashion, it's not a threat to the public at all and it's quite literally none of your business, or anybody else's, who owns what and where they keep it. And if it's misused, well, we deal with that on a case-by-case basis as they occur, just like we do every other kind of crime. For example, we don't cut the dicks off of male babies and sew up the vaginas of female babies on the premise that the male babies might one day rape someone or that the female babies might become prostitutes, now do we? That's called "prior restraint" and it's a very dangerous power to allow government to wield because it is so frequently and easily misused...to far more detrimental effects than all of the firearms owned by all of the law-abiding people anywhere in the world.

[Hermit]

Automatic weapons aren't constitutionally protected arms, and they're illegal in the US, and have been for decades.

All arms are constitutionally protected as long as someone can bear them. The prohibition of private ownership of automatic weapons is a congressional one. To date the question of its constitutionality has never been allowed to come before the Supreme Court for a decision. If it came to that, I have no doubt about the outcome. The amendment consists of one single and short sentence, expressed with a clarity that leaves no room for creative interpretation: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." It does not enumerate any exceptions. The National Firearms Act (1934) and the Hughes Amendment (1986) to The Gun Control Act (1968) are doing exactly that. The lot is unconstitutional.

I think at this stage I should mention that I am firmly in the gun control camp, but I can read. The meaning of the 2nd amendment is crystal clear: No infringement allowed to the right to bear arms whatsoever. In my opinion it ought to be superceded by the 28th.

Now back to income tax: Article 1, Section 8 of the Constitution enumerates the powers that Congress has. First in the list is the power "To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common defence and general Welfare of the United States." The only requirement is that "all Duties, Imposts and Excises shall be uniform throughout the United States". No exceptions are made in regard to what type of taxes may be levied by Congress. So, by the same token that the 2nd Amendment does not restrict the right to bear arms, Article 1, Section 8 of the Constitution does not restrict the power of what taxes it may levy.

[Jason]

That's precisely why it is necessary for law-abiding, god-fearing, Americans to arm themselves with rocket propelled grenade launchers loaded with purpose-built anti-personnel fragmenting high-explosive ammunition. To defend against criminals armed with two or more machine guns.

You can own an RPG and rockets if you like

I'm aware.

What I'm wondering at is where the 'defensive' arming ends. Do you feel secure enough in owning an RPG or do you require a tactical nuke or perhaps something even larger?

Nukes are "weapons of mass destruction" and therefore don't qualify and that canard is but an appeal to the consequences of a belief fallacy.

But, I do know people who own tanks, artillery and other large-bore weapons, along with ammunition for them. Interestingly, the only crime committed by a civilian with a tank was committed by a guy who STOLE IT from a National Guard armory because the idiots there didn't think to put a padlock on the turret hatch. Now they remove the batteries when the tanks are in storage.

Why should there be an "end" to what "arms" a law-abiding American can own? So long as it's kept and borne in a law-abiding fashion, it's not a threat to the public at all and it's quite literally none of your business, or anybody else's, who owns what and where they keep it. And if it's misused, well, we deal with that on a case-by-case basis as they occur, just like we do every other kind of crime. For example, we don't cut the dicks off of male babies and sew up the vaginas of female babies on the premise that the male babies might one day rape someone or that the female babies might become prostitutes, now do we? That's called "prior restraint" and it's a very dangerous power to allow government to wield because it is so frequently and easily misused...to far more detrimental effects than all of the firearms owned by all of the law-abiding people anywhere in the world.

Then, without the government stepping in and regulating what kind of arms you can own, where would the 'defensive' arms race end? With an M60 Patton tank in every driveway and a neighbourhood watch with a fleet of F-15 Strike Eagles?

[Seth]

Automatic weapons aren't constitutionally protected arms, and they're illegal in the US, and have been for decades.

All arms are constitutionally protected as long as someone can bear them. The prohibition of private ownership of automatic weapons is a congressional one. To date the question of its constitutionality has never been allowed to come before the Supreme Court for a decision. If it came to that, I have no doubt about the outcome. The amendment consists of one single and short sentence, expressed with a clarity that leaves no room for creative interpretation: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." It does not enumerate any exceptions. The National Firearms Act (1934) and the Hughes Amendment (1986) to The Gun Control Act (1968) are doing exactly that. The lot is unconstitutional.

Well, technically the laws are not "unconstitutional" because they "reasonably regulate" the exercise of the right without actually banning anything, and as I said the NFA is a tax law, not technically a gun control law.

The manufacturing and sale ban on machine guns, like the one on "assault weapons" is as you say of dubious constitutionality but has never been squarely set before the Supreme Court in part because it's a Commerce Clause question and the government (regardless of who is in charge) is extremely reluctant to address anything that might weaken the Congress' Commerce Clause powers because that is the clause of the Constitution that authorizes about 90 percent of all federal government activities and therefore paychecks and tax revenues.

I'm waiting for a good, clear gun ban case that the Supreme Court will hear regarding "assault weapons", which are actually merely semi-auto rifles that look like military assault rifles, that argues that such bans of effective military arms, which these rifles clearly are despite not being fully automatic, are entirely unconstitutional because they interfere with Congress' ability to call the militia to duty and form armies that are already supplied with adequate personal weapons of the soldier.

This concept, a universally-armed "part time" or "standby" militia force is what keeps Switzerland free. The vast majority of Swiss citizens of militia-duty age are equipped with fully-automatic battle rifles and ammunition which they are REQUIRED to keep in their homes, and they are likewise required to maintain manual of arms skills.

If the 2nd Amendment protects the keeping and bearing of handguns, as the SCOTUS says, for personal defense because they are particularly suitable for that purpose, then it most certainly protects those long arms that are particularly suitable for military use under the militia rationale as well, which means that semi-automatic rifles with detachable magazines, particularly those capable of using standard US military ammunition (5.56NATO), are the MOST carefully protected for private ownership. And this rationale applies not only to the Congress, but also to each state, because each state has its own militia laws and the Governors of the states are likewise authorized to call the unorganized militia to duty, and so the need is duplicated at the state level.

I don't quite understand why this argument has not been made thus far, but I conclude it's political and awaits a sympathetic administration and Congress willing to decline to vigorously object to such a case.

The fact is that nothing in the Constitution prohibits a national gun registration scheme. What keeps it from being implemented are the efforts of those who know that gun registration is never just about gun registration, it's always, in every case, about facilitating eventual confiscation of guns. In the US we have eschewed such registration schemes because we know this fact and we do not (and with good reason) trust our government to keep such records benevolently, so we don't allow it to do so in the first place. That's why NICS records checks must, by law be destroyed soon after the check is completed. Even so, the BATFE has been caught on at least two occasions blatantly violating the law by archiving the NICS records...and nobody responsible has gone to jail for doing so, ever.

And then there's the functional impossibility and expense of now creating and maintaining such a database. Canada tried it and spent three billion dollars before giving up.

It's just not going to happen.

And then there's this.

With this machine one can self-manufacture an AR lower, and I'm not sure, but I'm checking, I think you can manufacture a machine gun lower, provided that you've gotten the prior approval from the BATFE. You see, when you make your own firearm, which is perfectly legal, you CANNOT sell it without putting a serial number on it and registering it with the BATFE. Since the ban on manufacturing machine guns explicitly states "for sale" this means that so long as you are not a commercial manufacturer selling the lower receiver to anyone other than an official government agency, you as an individual are not manufacturing it for sale, and therefore it should be qualified to be registered on the NFA list just as a new silence or short barreled rifle can be self-created and so registered.

This appears to be a neat loophole that costs only $1500 to take advantage of that will allow one to make and possess a machine gun legally in spite of the "ban" on civilian machine gun sales.