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Old July 23, 2010, 08:48 AM   #1
Bartholomew Roberts
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Is the firearms excise tax a tax on a fundamental right?

And if so, is that necessarily a bad thing? 26 USC 4181 imposes an excise tax on the manufacture and sale of firearms and ammunition. That tax is used to fund efforts to use government land for hunting and recreation.

Recently, [url=http://www.opencongress.org/bill/111-h510/show]H. R. 510 (117 cosponsors) and its companion bill S. 632 (29 cocponsors) have been introduced. These two bills aim to reform the firearms excise tax. In addition, Michael Bane has made a convincing argument that the tax should be reformed not by eliminating it; but by allowing it to be used to build ranges and support shooters as well as hunters (since recreational shooters actually pay considerably more in excise taxes).

On the flip side, if the right to keep and bear arms is a fundamental individual right enshrined in the Bill of Rights, it can be argued it shouldn't be taxed at all.

So, my questions are:

1. Should the excise tax exist at all?
2. If the excise tax can be reformed to benefit the people who pay the most taxes (recreational shooters), won't it ultimately benefit the shooting community by opening up more lands and ranges?
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Old July 23, 2010, 08:55 AM   #2
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I wonder how people would feel about a tax on "free" speech.... if the government used it to build really nice podiums from which to speak?

No.


Rights, "free"doms are not taxable. Should not be taxable anyway.


Freedom:

the condition of being free; the power to act or speak or think without externally imposed restraints
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Old July 23, 2010, 10:19 AM   #3
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If it is to be considered a tax on a fundamental right, then would not also sales taxes on firearms and ammunition, even those for the funding of conservation programs, also be not allowed?

You may not feel that other rights are taxed, but there are plenty of taxes involved in communication, including those levied on phone bills and internet connections. The implements of communication are taxed.
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Old July 23, 2010, 11:29 AM   #4
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The tax has been in place for a long time. The gov't. uses the money that comes from it build ranges and gun clubs, among other activities. It currently is at 11%, IIRC, and covers more than just guns and ammunition. I believe other related equipment and gear are subject to it
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Old July 23, 2010, 01:55 PM   #5
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Is the tax on a book or magazine an infringement on a fundamental right?

How about taxes on phones or TVs?

So far the only fundamental right that is not taxed in some way is religions. I tend to think they should be taxed.

I don't want to get into what constitutes a "fair" tax. Just want to point out that a tax on things associated with rights is not unusual.
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Old July 23, 2010, 03:59 PM   #6
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I don't want to get into what constitutes a "fair" tax. Just want to point out that a tax on things associated with rights is not unusual.
I tend to agree. Licensing a right is a no no, but taxing it may not be against the constitution. Besides, you can avoid the tax on a gun if you buy from a private indifividual.

We also pay taxes on computers, printers, telephones, phone bills, cable TV bills and a whole slew of other things associated with fundamental rights. In Minnesota we now have a "right to fish and hunt" listed in our state constitution, but we still have to buy a license to do either (except under some conditions). I doubt we'll get too many people incensed over the tax on firearms and ammo to pay for land to hunt.
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Old July 23, 2010, 05:22 PM   #7
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If sales tax on book sales, even religious books is not unconstitutional, then why would taxes on gun sales be unconstitutional? If we are talking about license fees, waiting periods, permits, and arbitrary denial, that would be another matter, IMO.
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Old July 23, 2010, 06:23 PM   #8
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Originally Posted by Technosavant
The implements of communication are taxed.
Yes, they are.

And people who publish small magazines have some pretty strong opinions about the way recent increases in second-class postage have affected their First Amendment rights... but those fees aren't unconstitutional either.

So it seems to me to be pretty hard to argue against excise taxes which are earmarked for uses that benefit gun owners...
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Old July 23, 2010, 06:53 PM   #9
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They why are poll taxes illegal? It costs money for those voting machines, supplies, and people to tally the results. Don't want to pay the tax, don't vote.

Either tax all of them or tax none of them. All I want is a little consistency.
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Old July 23, 2010, 07:30 PM   #10
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I think that regular sales taxes on purchacing equipment used to exercise rights will probably pass muster. However, special excise taxes are probably not constititional... I'd like to see them challanged someday. I'd also like to see any and all fees associated with getting a CWP declared unconstititional. As was mentioned, the government cannot charge a fee or tax to vote; they have to absorb the costs out of regular revenue. Exercising 2A rights should be no different.
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Old July 23, 2010, 07:37 PM   #11
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Just going off the top of my head, I believe the tax you are referring to is the Pittman-Roberts act, which put an 11% excise tax on the sale of guns and ammunition. Later this was expanded to fishing gear and archery as well.

It has been in place since at least the '30s and was widely supported buy all shooting and hunting groups at the time. It is imposed at the wholesale level (might not be the correct term), in other words, when it leaves the factory floor, the 11% is already figured in the price.

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.

Its not, and never was to be a punitive tax. Its there for our benefit, and was done willingly, at the time. This tax is one of the main reasons that sport hunting is still a viable recreational activity in the USA.

We did this. Our money, from our grandfathers down through us, we saved sport hunting from virtual extinction. The money paid for scientific research and game management. Deer populations in the 30's had hit all time lows. Game bird populations in many areas were in hard decline also. Those folks could see a day when our hunting was virtually gone, and did something about it. It was a good thing.

The thing we must guard against today is the politicians getting their hands on the tax and raising it. And also, as always, to keep the money brought in going to what it is raised for, and only that!

As to taxes on books, or tvs, etc. we already pay sales tax, and other taxes we don't see on everything. You don't see the import duty on that big screen TV, but I assure you, its there.

All kinds of taxes, figured all kinds of ways, and yes, some of them do impact some of our fundamental rights. SO? Everything costs. Our rights are granted us free, by virtue of our existence, and recognised by our government because we are US citizens. But who ever told you that exercising a right in a particular manner would be free? Everything costs, and money is only one way we pay.
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Old July 23, 2010, 08:48 PM   #12
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I wonder how people would feel about a tax on "free" speech.... if the government used it to build really nice podiums from which to speak?
That very issue came up in the Minneapolis Star Tribune case.

While we're awhile off from it, I see this as a possible challenge to the NFA, which constitutes a tax on the exercise of a right.
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Old July 23, 2010, 11:18 PM   #13
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Is the tax used in a way to prevent or restrict(or does it actually restrict or prevent even if that is not the intent) the exercise of the right?

This is why poll taxes were outlawed. They were used as a means to prevent a certain types of people from voting.

A reasonable non punitive excise tax on arms and ammunition does not burden the right to any meaningful extent nor is that the intent of the tax. Sales taxes on newspapers and firearms don't either.

The NFA tax while at one time prohibitive is no longer so. You could argue that its original intent was but when the practical effect of the law is no longer so I don't think you'll get anywhere.

A 200% excise tax on firearms and ammunition would be a different story.
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Old July 24, 2010, 04:21 AM   #14
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A reasonable non punitive excise tax on arms and ammunition does not burden the right to any meaningful extent nor is that the intent of the tax. Sales taxes on newspapers and firearms don't either.
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.

You can't have one and not the other and not be seen as a hypocrite. If a poll tax can be abused so can a tax on guns and ammo and free speech.

Quote:
The NFA tax while at one time prohibitive is no longer so. You could argue that its original intent was but when the practical effect of the law is no longer so I don't think you'll get anywhere.
So you'd be OK with a $200 poll tax for the same reasons?

The NFA tax is still prohibitive. A decent suppressor can be built and sold for $100. A quality home-built unit even less. A Shotgun barrel can be cut down for $60.

Tac-Inc builds quite nice suppressors that only sell for a few hundred dollars, the NFA tax increases the price by more than 50%.
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Old July 24, 2010, 05:34 AM   #15
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Poll taxes are illegal because of how they were historically used - as a method of absolute exclusion in preventing blacks and many poor whites from voting. They were particularly onerous in that the "tax" amount was often more than a poor black made in a month or year, were not applied fairly, and weren't done with the concept of raising revenue.

Often, Southern poll taxes also had grandfather clauses in which if your father, grandfather, etc., had voted in an election in the state prior to some arbitrary date (and that date was always prior to adoption of the 15th amendment), you were exempt from paying the tax.

At that point, that's not a tax, that's the action of repressive government at its best.

In those areas that didn't have poll taxes, they were sometimes created out of the blue to prevent blacks and others from voting. A time-honored favorite was "How many bubbles are there in a bar of Ivory soap?"

Conversely, excise taxes on firearms, books, etc., are applied to everyone regardless of race, socioeconomic standing, religious belief, or whatever.




"Why not a reasonable non-punitive poll tax?"

You certainly could have a reasonable, non-punitive poll tax in the US except for one thing...

How the poll tax was used in the past.

It's own history as a method of disenfranchisement led to the tax being declared unconstitutional in many states in the 1960s.

In order to enact a new poll tax in the United States you'd have to somehow overcome 150 years of very negative history and significant legal precedent. It would be so controversial that it would never be either politically of financially viable for a state to attempt to enact it. And I think it would have to be enacted at a state level, and not a local level.
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Old July 24, 2010, 06:54 AM   #16
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Wow

Some of you need to stop and understand what an excise tax is. It is not a sales tax, though it is generally associated with the transfer.

The excise tax is a 10 to 11% Federal tax levied by the BATF on every gun and round of ammunition, just because they are guns and ammunition. The CLAIM is that the excise tax is used to build ranges, etc. There are no Federal Ranges in my state and only two State run ranges that I am aware of.

Sales tax is usually not associated with just one item or commodity. Sales tax is not punitive in nature, excise taxes are.

No one taxes your ability to speak while standing on a street corner, but the excise tax is equivalent to just that. You pay taxes to build and maintain said street corner, but you are not taxed each time you use it.

You may have paid a sales tax when you bought your CB in your truck, but you are not taxed each time you use it. You also did not pay an additional excise tax on it.

You may pay sales tax when you buy a news paper, but you are not taxed each time you open it. The gun and ammo excise tax does just that.

If gun ownership is a fundamental right then an excise tax in order to use that right is wrong and illegal. A sales tax is not, because it applies to everything and not aimed at just this right.

There is a difference. The said part is that most gun owners do not even know that the US Gov, through the BATF, adds 10% to every gun and ammo purchase you make. It does not show up on the bill because it is hidden in the cost of manufacture.

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Old July 24, 2010, 07:15 AM   #17
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The comparisons to the FCC are interesting. The FCC maintains and regulates the airwaves. Taxes and fees are paid for that service. They still do not control your freedom to speak and communicate with other individuals or groups, the most simplest form of your right to free speech.

The BATF excise tax is one you pay each time you pull the trigger on a live round. Again, the most simplest form of your 2nd Amendment right.

Poll taxes are wrong for the same reason. My right to cast my vote should not depend on if I have money in my pocket. The rich and the poor should have the same right. This goes for gun ownership and usage as well.


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Old July 24, 2010, 07:59 AM   #18
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"There are no Federal Ranges in my state and only two State run ranges that I am aware of."

Pittman-Robertson didn't put the Federal government in the business of building ranges.

Money for things like ranges are distributed to the states by the Feds, and the states then can either establish ranges or provide grants to organizations for ranges.

NRA has a discussion on this aspect: http://www.nrahq.org/shootingrange/pitmann.asp

The act was originally passed at the behest of hunters and sportsmen nationwide for the purposes of establishing and preserving wildlife.

In the 1930s wildlife in the United States was still at levels far below what they are today. In states like Pennsylvania deer and turkey were almost driven out because of clear cut logging in the late 19th and early 20th centuries.

Pittman-Robertson funds helped enlarge Pennsylvania's State Game lands, which are among the most extensive east of the Mississippi. Prior to Pittman-Robertson, Pennsylvania hunters paid an excise tax of $2 per hunting license, and that money was specifically set aside for purchase and maintenance of game lands.

Excise taxes have been found to be Constitutional in many court cases. The only way I could see the excise tax on firearms and ammunition being unconstitutional is if it became a punitive tax designed only to prevent people from purchasing firearms and ammunition or, more directly, if excise taxes were passed to the effect of "Latino and blacks are required to pay an excise tax on the purchase of firearms and ammunition in the amount of 500% of the purchase price. Whites are exempt from this tax."

That's why poll taxes were found to be unconstitutional, not because it's a tax on the right to vote, but because the taxes were used as one of many means to exclusively prevent an entire segment of the community from exercising the right to vote and because the chosen segment was generally free from having to pay such a tax.

But to say that a tax on firearms and ammunition is unconstitutional just because is kind of silly.
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Old July 24, 2010, 09:56 AM   #19
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Poll taxes have been found to be unconstitutional for two reasons:

(1) The 24th Amendment prohibits poll taxes for federal elections.

(2) The Equal Protection Clause of the 14th Amendment prohibits discriminatory classifications of people that result in unequal protection of fundamental constitutional rights.
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Old July 24, 2010, 10:53 AM   #20
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Poll taxes are illegal because of how they were historically used - as a method of absolute exclusion in preventing blacks and many poor whites from voting. They were particularly onerous in that the "tax" amount was often more than a poor black made in a month or year, were not applied fairly, and weren't done with the concept of raising revenue.
Irrelevant. All you have done is made an argument against punitive taxation. The same was found in Minneapolis Star v. Minnesota Commissioner of Revenue, but non-punitive taxes designed to raise revenue, like sales taxes and such, were never questioned and are legal

Quote:
Poll taxes have been found to be unconstitutional for two reasons:

(1) The 24th Amendment prohibits poll taxes for federal elections.

(2) The Equal Protection Clause of the 14th Amendment prohibits discriminatory classifications of people that result in unequal protection of fundamental constitutional rights.
That still does not answer the issue of consistency that I brought up. Why is it OK to tax one right beyond legitimate sales taxes, but not another? 160 years ago we would have been asking "Why is it OK to own a black man, but not a white man?" The answer of course is that it is not OK, one should be able to own either both or neither. (Thankfully we moved toward "neither".) To argue otherwise is to simply grasp for straws to make a logically inconsistent and hypocritical position seem otherwise.

At what point does that tax become punitive? Against the poor, an 11% tax could easily be seen as punitive or exclusionary. I've met such people before. If punitive taxes are not OK at the polls why do we have the NFA tax? It's origin was for the same purpose as the poll tax, yet it remains.
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Old July 24, 2010, 12:34 PM   #21
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Originally Posted by Crosshair
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.

Quote:
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.

Quote:
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.
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Old July 24, 2010, 12:52 PM   #22
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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.
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Old July 24, 2010, 01:23 PM   #23
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Originally Posted by Crosshair
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.
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Old July 24, 2010, 02:16 PM   #24
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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.
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Old July 24, 2010, 02:45 PM   #25
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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.
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