Gun law question
Reader Carl emails:
While reading your latest posts on the anti-gun antics taking place in Knoxville, I was thinking about our courts, and sent the message below to my correspondents. I discovered something interesting, though; a court decision which appears to invalidate the “Interstate Commerce” justification for licensing firearms dealers. I wonder if any of your readers may have knowledge of this?
Quote: A state may not impose a charge for the enjoyment of a right granted by the federal constitution. Thus, it may not exact a license tax for the privilege of carrying on interstate commerce. McGoldrick v. Berwind-White Co., 309 U.S. 33, 56-58, 60 S.Ct. 388, 397, 398, 128 A.L.R. 876
CarlS—– Original Message —–
Changing Moral Values and Criminal Courts
Moral relativism is nothing new. The courts have practiced it continuously since about, oh, 1936. How else to explain why the Supreme Court once ruled, repeatedly, that every man has a birthright to own and carry firearms without a license, that a state may not impose a charge, license, or fee for the exercise and enjoyment of a religious or (any) right, versus these craven rulings now which emasculate the First, Second, Fourth, Ninth, and other Amendments? Absent relativism, the courts would have to publicly state that a Court was wrong, either then or now. And once they admit the court is not infallible, why should anyone adhere to their rulings?We have civil and we have criminal courts. Why is right and wrong judged differently in these venues? Why is it that juries most often interpret the law in civil actions, whereas judges do the interpreting in criminal actions? Why is it that judges refuse to allow the words “jury nullification” to be used in courtrooms? Is there another reason why we have “Criminal” courts? Hence my conclusion that any court which does not hold firm to the written Constitution, any court which “interprets” the Constitution, is itself a criminal court. Q.E.D.
Carl Shires—– QUOTE TO REMEMBER —–
In philosophy, moral relativism takes the position that moral or ethical propositions do not reflect absolute and universal moral truths, but instead make claims relative to social, cultural, historical or personal circumstances. Moral relativists hold that no universal standard exists by which to assess an ethical proposition’s truth. Relativistic positions often see moral values as applicable only within certain cultural boundaries or in the context of individual preferences. Moral relativism differs from moral pluralism and from value-pluralism — which acknowledges the co-existence of opposing ideas and practices, but accepts limits to differences, such as when vital human needs get violated. Moral relativism, in contrast, grants the possibility of moral judgments that do not such accept such limits.
From WikipediaREFERENCE: U.S. SUPREME COURT, MURDOCK V. PENNSYLVANIA 319 US 105 (1942)
………. We have here something quite different, for example, from a tax on the income of one who engages in religious activities or a tax on property used or employed in connection with those activities. It is one thing to impose a tax on the income or property of a preacher. It is quite another thing to exact a tax from him for the privilege of delivering a sermon. The tax imposed by the City of Jeannette is a flat license tax, the payment of which is a condition of the exercise of these constitutional privileges. The power to tax the exercise of a privilege is the power to control or suppress its enjoyment. Magnano Co. v. Hamilton, 292 U.S. 40, 44, 45 S., 54 S.Ct. 599, 601, and cases cited. Those who can tax the exercise of this religious practice can make its exercise so costly as to deprive it of the resources necessary for its maintenance. Those who can tax the privilege of engaging in this form of missionary evangelism can close its doors to all those who do not have a full purse. Spreading religious beliefs in this ancient and honorable manner would thus be denied the needy. Those who can deprive religious groups of their colporteurs can take from them a part of the vital power of the press which has survived from the Reformation. It is contended, however, that the fact that the license tax can suppress or control this activity is unimportant [319 U.S. 105, 113] if it does not do so. But that is to disregard the nature of this tax. It is a license tax – a flat tax imposed on the exercise of a privilege granted by the Bill of Rights. A state may not impose a charge for the enjoyment of a right granted by the federal constitution. Thus, it may not exact a license tax for the privilege of carrying on interstate commerce (McGoldrick v. Berwind-White Co., 309 U.S. 33, 56-58, 60 S.Ct. 388, 397, 398, 128 A.L.R. 876), although it may tax the property used in, or the income derived from, that commerce, so long as those taxes are not discriminatory. Id., 309 U.S. at page 47, 60 S.Ct. at page 392, 128 A.L.R. 876 and cases cited. A license tax applied to activities guaranteed by the First Amendment would have the same destructive effect. It is true that the First Amendment, like the commerce clause, draws no distinction between license taxes, fixed sum taxes, and other kinds of taxes. But that is no reason why we should shut our eyes to the nature of the tax and its destructive influence. The power to impose a license tax on the exercise of these freedoms is indeed as potent as the power of censorship which this Court has repeatedly struck down.
I’m no lawyer but I’m pretty sure taxing a right is illegal (poll taxes, for example). Thoughts?
November 21st, 2006 at 10:47 am
Taxing rights may not be legal, but charging fees for them isn’t. I’m not a lawyer and don’t know TN or other state laws to any extent that you should take my word without question, but MA used to get around issues like this by charging fees instead of taxes. That’s the way that Romney has “avoided” raising taxes in Massachusetts, he raised the fees on rights such as gun ownership and to speak with government officials regularly.
November 21st, 2006 at 12:15 pm
That is not correct. Taxing a right so heavily as to effectively prohibit it is one thing, but short of that, there is no general bar on taxing rights. Courts have held, for example, that there is a right to travel, but that does not prohibit any level of government from taxing cars, gasoline, jet fuel, airline tickets, or any other expenses associated with it. Hell, they’ve even invented a separate category of “fundamental” rights, which get more “constitutional” protection than the “ha ha, just kidding” ones, yet no court has ever questioned the power of states to charge a fee and require a license to exercise the “fundamental right” to marry. Poll taxes are the exception that proves the rule: if government were generally prohibited from taxing rights, the 24th Amendment would not have been necessary.
November 21st, 2006 at 12:25 pm
I meant to say “is” in that first sentence above. Preview is my friend. I just choose to ignore her most days, something that would be obvious to anyone who reads my blog. 🙂
November 21st, 2006 at 12:33 pm
From what I remember, state supreme courts have regularly decided that there is no fundamental right to marry. New Jersey noted it in that recent gay marriage event not long ago, at the very least.
Taxes on constitutionally protected rights are not well defined. You’d never get away with a “free speech” tax, but a “right to assemble” can be taxed as anyone trying to rent a decent conference room can tell. The people will pay for the right to an attorney if you aren’t able to pay for one, but you also usually have to pay a small sum of money to get into the public defender groups lists anyway just to cover paperwork. Taxing the right to remain silent… eh, wouldn’t get much favor.
The best constitutional understanding I can figure is that only taxes proportional to the purchase of other items, or directly related to the costs, can be put in place – for example, a 5% sales tax would allow a 5% “assembly” tax, and you can charge minimal costs to get the right to an attorney. But this isn’t well covered or accepted, and I’d personally prefer that our constitutionally protected rights not go by-by because the Fedos need more cash.
I believe the 24th amendment exists because there is no explicitly defined right to vote (in fact, Jesse Jackson tried to get an amendment stating the right to vote in 2003), and that the Constitution says that states can legislate the ability of individuals to vote (which is why both the 14th and 15th amendment exist, rather than simply the 14th). A right that can be legislated away is no right at all.
November 22nd, 2006 at 9:32 am
The “right to vote” is a modern invention. Originally, only the white male owners of significant amounts of property could vote.
Also, “poll tax” means a tax per head, not a tax on voting (although this was distorted by racists in the 20th century). The federal government was originally limited to indirect taxes (customs and excise), or a direct tax which had to be allocated among the states according to population, which is a roundabout way of saying a head tax. AFAIK, they tried to collect that just once, to finance the Mexican-American War. Henry David Thoreau refused to pay and went to jail…
November 22nd, 2006 at 3:37 pm
Gattsuru:
You remember wrong. The NJ court noted that the fundamental right of marriage was well-established, but declined to extend that rule to invent a fundamental right to gay marriage, which AFAIK no court has recognized, ever. Traditional marriage as a fundamental right goes back at least as far as Loving v. Virginia, and AFAIK has not been disturbed since (and can’t be by any court other than the USSC).
Nonsense. The Constitution doesn’t say anything about an individual’s “ability” to vote, only about the right of U.S. citizens to do so. In four separate amendments, no less, two of which preceded the 24th, which is itself written in terms of “rights” rather than “abilities.” I don’t know where the popular meme about not having a constitutional right to vote comed from, but it could scarcely be more wrong. How many other constitutional rights get four separate mentions in the written Constitution?
Correction: any right that hasn’t been legislated away is indeed a right, just not a constitutional one. More importantly, even constitutional rights can be legislated some, they just can’t be legislated too much. Absent the 24th Amendment, poll taxes would be like any other taxes with the potential to undermine constitutional rights: unconstitutional if unreasonable or oppressive, but constitutional if it is not.