Mike
Site Co-Founder
OpenCarry.org is pleased to have provided the following comments in response to ATF's invitation for comments on their proposed new rules for NFA item registration posted at http://www.gpo.gov/fdsys/pkg/FR-2013-09-09/pdf/2013-21661.pdf.
Summary of comments:
OpenCarry.org argues in its first comment that the ATF does not have the authority under the NFA's taxing powers to shut off Americans' end run around CLEO certification of NFA item applications via legal entities because the ATF's stated purpose of its proposed rule change is “to ensure that prohibited persons do not gain access to NFA firearms," an exercise of general criminal power not delegated to the ATF by Congress. Additionally, ATF’s proposed rule will necessarily impede the transfer of NFA items and therefore hinder the collection of taxes – the constitutional purpose of the NFA - because transferors will be substantially less able to find transferees who can obtain CLEO certification. Moreover, the ATF-proposed rule justifies the mass registration of legal entities’ responsible parties not to obtain tax revenue but rather “to ensure that prohibited persons do not gain access to NFA firearms."
In its second comment, OpenCarry.org urges the ATF to simply repeal the NFA item CLEO certificate requirement for individuals. This CLEO certificate requirement – which most CLEOs refuse to certify - is the reason Americans are turning to legal entities to own NFA items. If the CLEO certificate requirement for individuals is repealed by ATF, use of legal entity ownership arrangements for NFA items will decline without hindering the collection of taxes under the NFA.
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Your Comment Tracking Number: 1jx-897f-njgd Your comment will be viewable on Regulations.gov after the agency has reviewed it, which may be an indefinite amount of time. Use your tracking number to find out the status of your comment.
Note: You submitted your comment to an agency that does not publish comments on Regulations.gov. To check the status of your comment or obtain further information, please follow-up directly with the agency contact listed in the document soliciting your input.
Your comment:
Comment #1:
OpenCarry.org opposes the ATF’s proposed rule to both retain the NFA item CLEO certificate requirement for individuals, and to expand the CLEO certificate requirement to all “responsible persons” of legal entities (e.g., even a newborn baby who is one of several beneficiaries of an NFA item holding trust).
The reason that Americans acquire and register NFA items through legal entities is to by-pass the current ATF requirement for local CLEO certification of natural person NFA owners. Most CLEOs will not certify such applications, as is their right do to so under Printz v. United States (1997) (striking down the federal Brady Act’s command for CLEOs to perform firearm transfer background checks). Moreover, ATF’s proposed “tweaking” of the CLEO certification language to merely verify that CLEOs “are satisfied that the photographs and fingerprints match those of the responsible persons” will not deter CLEOs from continuing to refuse to certify NFA item registration applications – CLEOs refuse to certify NFA item registration applications on general policy or Tenth Amendment grounds, and not because they object to the current phraseology of ATF forms.
ATF’s proposed rule will necessarily impede the transfer of NFA items and therefore hinder the collection of taxes – the constitutional purpose of the NFA - because transferors will be less able to find transferees who can obtain CLEO certification. Moreover, the ATF- proposed rule justifies the mass registration of legal entities’ responsible parties not to obtain tax revenue but rather “to ensure that prohibited persons do not gain access to NFA firearms.” This proposed action by ATF is therefore not a constitutional exercise of delegated rulemaking to fill in the gaps of the underlying tax revenue statute in furtherance of its Congressional purpose – it is rather a blatant exercise of general criminal power not delegated to the [ATF by Congress or even] to Congress by the Constitution.” United States v. Rock Island Armory, Inc. (1991) (dismissing indictment under NFA for failing to register a machine gun where federal law precluded registration).
“Since its passage in 1934, the registration, taxation, and other requirements of the National Firearms Act ("NFA") have been upheld by the courts under the power of Congress to raise revenue.” Id. “Congress has no enumerated power to require registration of firearms. However, since registration of firearms may assist in the collection of revenue, Congress passed the National Firearms Act in 1934 pursuant to its power to tax.” Id. “The Seventh Circuit was the first to enunciate the rule that the National Firearms Act is solely a tax measure. In Sonzinsky v. United States, 86 F.2d 486 (7th Cir.1936), aff'd, 300 U.S. 506, 57 S.Ct. 554, 81 L.Ed. 772 (1937), the Court of Appeals considered the validity of the requirement that a dealer in firearms register with the collector and pay a special excise tax of $200 per year. The Court found the NFA to be constitutionally valid as under the taxing power of Congress in Article I, § 8 of the Constitution. Rejecting the argument that the NFA's real purpose was suppression of crime, the Court held: The act ... evidences no announced purpose outside the constitutional authority. [It is] unusually free from regulative provisions, merely providing for a tax in varying amount upon different classifications of persons and requiring such persons to register.” In other words the Supreme Court upheld the NFA in Sonzinsky “because the National Firearms Act was a revenue measure only and did not purport to exercise any general criminal power not delegated to Congress by the Constitution.” Rock Island Armory, Inc.
The ATF cannot rule-make beyond its delegated statutory power to collect taxes on taxable NFA items any more than Congress can legislate beyond its enumerated constitutional powers. E.g., United States v. Lopez, 514 U.S. 549 (1995) (striking down the federal Gun Free School Zone Act as beyond the enumerated power of Congress). “United States v. Ross, 458 F.2d 1144, 1145 (5th Cir.1972), cert. denied, 409 U.S. 868, 93 S.Ct. 167, 34 L.Ed.2d 118 states that “[t]he test of validity is whether on its face the tax operates as a revenue generating measure and the attendant regulations are in aid of a revenue purpose.” The ATF’s proposed rule to both retain the CLEO certificate requirement for individuals, and to expand the CLEO certificate requirement to all “responsible persons” of legal entities fails the Ross test because the purpose of the rulemaking is to exercise general criminal power that the ATF, under the NFA, does not have, at the expense of its statutory mission it does have, under the NFA, to collect taxes.
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First Name:Mike
Last Name: Stollenwerk
Organization Name: OpenCarry.org
----------------------------------------
Your comment will be viewable on Regulations.gov after the agency has reviewed it, which may be an indefinite amount of time. Use your tracking number to find out the status of your comment.
Note: You submitted your comment to an agency that does not publish comments on Regulations.gov. To check the status of your comment or obtain further information, please follow-up directly with the agency contact listed in the document soliciting your input.
Your comment:
Comment #2:
OpenCarry.org urges that instead of its proposed new rules, that ATF instead simply repeal the NFA item CLEO certificate requirement for individuals. This CLEO certificate requirement – which most CLEOs refuse to certify - is the reason Americans are turning to legal entities to own NFA items. If the CLEO certificate requirement for individuals is repealed by ATF, use of legal entity ownership arrangements for NFA items will decline without hindering the collection of taxes under the NFA.
Uploaded File(s)(Optional)
No files uploaded
This information was sent to the agency: This information will appear on Regulations.gov:
None of the information will be displayed on Regulations.gov
First Name: Mike
Last Name: Stollenwerk
Organization Name: OpenCarry.org
Summary of comments:
OpenCarry.org argues in its first comment that the ATF does not have the authority under the NFA's taxing powers to shut off Americans' end run around CLEO certification of NFA item applications via legal entities because the ATF's stated purpose of its proposed rule change is “to ensure that prohibited persons do not gain access to NFA firearms," an exercise of general criminal power not delegated to the ATF by Congress. Additionally, ATF’s proposed rule will necessarily impede the transfer of NFA items and therefore hinder the collection of taxes – the constitutional purpose of the NFA - because transferors will be substantially less able to find transferees who can obtain CLEO certification. Moreover, the ATF-proposed rule justifies the mass registration of legal entities’ responsible parties not to obtain tax revenue but rather “to ensure that prohibited persons do not gain access to NFA firearms."
In its second comment, OpenCarry.org urges the ATF to simply repeal the NFA item CLEO certificate requirement for individuals. This CLEO certificate requirement – which most CLEOs refuse to certify - is the reason Americans are turning to legal entities to own NFA items. If the CLEO certificate requirement for individuals is repealed by ATF, use of legal entity ownership arrangements for NFA items will decline without hindering the collection of taxes under the NFA.
------
Your Comment Tracking Number: 1jx-897f-njgd Your comment will be viewable on Regulations.gov after the agency has reviewed it, which may be an indefinite amount of time. Use your tracking number to find out the status of your comment.
Note: You submitted your comment to an agency that does not publish comments on Regulations.gov. To check the status of your comment or obtain further information, please follow-up directly with the agency contact listed in the document soliciting your input.
Your comment:
Comment #1:
OpenCarry.org opposes the ATF’s proposed rule to both retain the NFA item CLEO certificate requirement for individuals, and to expand the CLEO certificate requirement to all “responsible persons” of legal entities (e.g., even a newborn baby who is one of several beneficiaries of an NFA item holding trust).
The reason that Americans acquire and register NFA items through legal entities is to by-pass the current ATF requirement for local CLEO certification of natural person NFA owners. Most CLEOs will not certify such applications, as is their right do to so under Printz v. United States (1997) (striking down the federal Brady Act’s command for CLEOs to perform firearm transfer background checks). Moreover, ATF’s proposed “tweaking” of the CLEO certification language to merely verify that CLEOs “are satisfied that the photographs and fingerprints match those of the responsible persons” will not deter CLEOs from continuing to refuse to certify NFA item registration applications – CLEOs refuse to certify NFA item registration applications on general policy or Tenth Amendment grounds, and not because they object to the current phraseology of ATF forms.
ATF’s proposed rule will necessarily impede the transfer of NFA items and therefore hinder the collection of taxes – the constitutional purpose of the NFA - because transferors will be less able to find transferees who can obtain CLEO certification. Moreover, the ATF- proposed rule justifies the mass registration of legal entities’ responsible parties not to obtain tax revenue but rather “to ensure that prohibited persons do not gain access to NFA firearms.” This proposed action by ATF is therefore not a constitutional exercise of delegated rulemaking to fill in the gaps of the underlying tax revenue statute in furtherance of its Congressional purpose – it is rather a blatant exercise of general criminal power not delegated to the [ATF by Congress or even] to Congress by the Constitution.” United States v. Rock Island Armory, Inc. (1991) (dismissing indictment under NFA for failing to register a machine gun where federal law precluded registration).
“Since its passage in 1934, the registration, taxation, and other requirements of the National Firearms Act ("NFA") have been upheld by the courts under the power of Congress to raise revenue.” Id. “Congress has no enumerated power to require registration of firearms. However, since registration of firearms may assist in the collection of revenue, Congress passed the National Firearms Act in 1934 pursuant to its power to tax.” Id. “The Seventh Circuit was the first to enunciate the rule that the National Firearms Act is solely a tax measure. In Sonzinsky v. United States, 86 F.2d 486 (7th Cir.1936), aff'd, 300 U.S. 506, 57 S.Ct. 554, 81 L.Ed. 772 (1937), the Court of Appeals considered the validity of the requirement that a dealer in firearms register with the collector and pay a special excise tax of $200 per year. The Court found the NFA to be constitutionally valid as under the taxing power of Congress in Article I, § 8 of the Constitution. Rejecting the argument that the NFA's real purpose was suppression of crime, the Court held: The act ... evidences no announced purpose outside the constitutional authority. [It is] unusually free from regulative provisions, merely providing for a tax in varying amount upon different classifications of persons and requiring such persons to register.” In other words the Supreme Court upheld the NFA in Sonzinsky “because the National Firearms Act was a revenue measure only and did not purport to exercise any general criminal power not delegated to Congress by the Constitution.” Rock Island Armory, Inc.
The ATF cannot rule-make beyond its delegated statutory power to collect taxes on taxable NFA items any more than Congress can legislate beyond its enumerated constitutional powers. E.g., United States v. Lopez, 514 U.S. 549 (1995) (striking down the federal Gun Free School Zone Act as beyond the enumerated power of Congress). “United States v. Ross, 458 F.2d 1144, 1145 (5th Cir.1972), cert. denied, 409 U.S. 868, 93 S.Ct. 167, 34 L.Ed.2d 118 states that “[t]he test of validity is whether on its face the tax operates as a revenue generating measure and the attendant regulations are in aid of a revenue purpose.” The ATF’s proposed rule to both retain the CLEO certificate requirement for individuals, and to expand the CLEO certificate requirement to all “responsible persons” of legal entities fails the Ross test because the purpose of the rulemaking is to exercise general criminal power that the ATF, under the NFA, does not have, at the expense of its statutory mission it does have, under the NFA, to collect taxes.
Uploaded File(s)(Optional)
No files uploaded
This information was sent to the agency: This information will appear on Regulations.gov:
None of the information will be displayed on Regulations.gov
First Name:Mike
Last Name: Stollenwerk
Organization Name: OpenCarry.org
----------------------------------------
Your comment will be viewable on Regulations.gov after the agency has reviewed it, which may be an indefinite amount of time. Use your tracking number to find out the status of your comment.
Note: You submitted your comment to an agency that does not publish comments on Regulations.gov. To check the status of your comment or obtain further information, please follow-up directly with the agency contact listed in the document soliciting your input.
Your comment:
Comment #2:
OpenCarry.org urges that instead of its proposed new rules, that ATF instead simply repeal the NFA item CLEO certificate requirement for individuals. This CLEO certificate requirement – which most CLEOs refuse to certify - is the reason Americans are turning to legal entities to own NFA items. If the CLEO certificate requirement for individuals is repealed by ATF, use of legal entity ownership arrangements for NFA items will decline without hindering the collection of taxes under the NFA.
Uploaded File(s)(Optional)
No files uploaded
This information was sent to the agency: This information will appear on Regulations.gov:
None of the information will be displayed on Regulations.gov
First Name: Mike
Last Name: Stollenwerk
Organization Name: OpenCarry.org
Last edited: