The so-called Byrd Bath removes anything in a budget reconciliation bill that isn’t directly related to taxation or spending. In anticipation of the Senate Parliamentarian’s imminent ruling on whether the Hearing Protection Act and the SHORT Act provisions included in the reconciliation bill, here are some pieces of evidence that NFA was clearly a tax act.
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The issue starts with then Attorney General Homer Stille Cummings’ famous testimony on the National Firearms Act of 1934.
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“Oh, we do not attempt to escape it. We are dealing with another power, namely, the power of taxation, and of regulation under the interstate commerce clause. You see, if we made a statute absolutely forbidding any human being to have a machine gun, you might say there is some constitutional question involved. But, when you say, “We will tax the machine gun” and when you say that “the absence of a license showing payment of the tax has been made indicates that a crime has been perpetrated,” you are easily within the law.”
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Here are a few court decisions that clearly had the same understanding.
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“Petitioner does not deny that Congress may tax his business as a dealer in firearms. He insists that the present levy is not a true tax, but a penalty imposed for the purpose of suppressing traffic in a certain noxious type of firearms, the local regulation of which is reserved to the states because not granted to the national government. . . But a tax is not any the less a tax because it has a regulatory effect. . . Here the annual tax of $200 is productive of some revenue. We are not free to speculate as to the motives which moved Congress to impose it, or as to the extent to which it may operate to restrict the activities taxed. As it is not attended by an offensive regulation, and since it operates as a tax, it is within the national taxing power.”
Sonzinsky v. United States, 300 U.S. 506, 512-514 (1937).
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“Section 5851 forms part of the National Firearms Act, an interrelated statutory system for the taxation of certain classes of firearms. . . We do not doubt, as we have repeatedly indicated, that this Court must give deference to Congress’ taxing powers, and to measures reasonably incidental to their exercise. . ..”
Haynes v. United States, 390 U.S. 85, 87, 98 (1968).
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“As we stated above, the NFA is part of a comprehensive scheme to levy and collect taxes upon the making and transfer of certain firearms. The NFA’s regulatory provisions need only bear a “reasonable relation” to the statute’s taxing purpose.”
United States v. Aiken, 974 F.2d 446, 448 (4th Cir. 1992)
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“To the contrary, it is well-settled that § 5861(d) is constitutional because it is ‘part of the web of regulation aiding enforcement of the transfer tax provision in § 5811. Having required payment of a transfer tax and registration as an aid in collection of that tax, Congress under the taxing power may reasonably impose a penalty on possession of unregistered weapons.’”
United States v. Gresham, 118 F.3d 258, 262 (5th Cir. 1997) (citing United States v. Ross, 458 F.2d 1144, 1145 (5th Cir.1972)).
