Cite as U.S. v. Warin, CR 74-90 (N.D.Ohio January 24, 1975) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO WESTERN DIVISION United States of America, Criminal No. CR 74-90 Plaintiff, vs. OPINION AND ORDER Francis J. Warin, FINDINGS OF FACT Defendant. AND CONCLUSIONS OF LAW YOUNG, J: The defendant is charged in a one-count indictment with receiving or possessing a firearm, a 9 mm prototype submachine gun, which is not registered to him in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. section 5861(d), [footnote 1] Title II of the National Firearms Act as amended (hereinafter Act). The case was tried to the Court without the intervention of a jury on October 18, 1974, with argument being made by written briefs. This opinion will serve as the Court's findings of fact and conclusions of law. The defendant is an engineer and designer of firearms employed by a company which develops military weapons for the United States Government. He is an adult male, and a resident and citizen of the State of Ohio. As such, he is, by the law of that state a member of the State Militia. [footnote 2] It is not contended, however, that he is a member of the active militia, but only of the so-called "sedentary militia". [footnote 3] The evidence showed that the defendant had made the weapon in question, which is indeed a firearm as described in the Act. It is also clear from the evidence that the weapon was of a type which is standard for military use, and fires the ammunition which is in common military use for the weapons used by individual soldiers in combat. The defendant testified that he had designed and built the weapon for the purpose of testing and refining it so that it could be offered to the Government as an improvement on the military weapons presently in use. The weapon was not registered to him as required by law. Thus the case is clearly distinguishable on its facts from United States v. Miller, 307 U.S. 174 (1933). That case dealt with a sawed-off shotgun, and the Court specifically refers to "[T]he absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia." Id. at 179. Here the defendant has offered evidence which establishes his character as a militiaman, and the weapon as a proper military weapon, useable in its exact present form for military purposes. Thus he may properly argue that his situation comes squarely within the scope of the Second Amendment. However, that does not make an end to the matter, for the Second Amendment is neither the whole of the Constitution, nor superior to all other provisions of that instrument. The defendant in his arguments raises the issue as to the validity of the regulatory scheme of the Act under the broad language of the Second Amendment. It is important first to consider the overall structure of the Act. It imposes at section 5801 an occupational tax on certain firearm importers, manufacturers and dealers, with section 5802 requiring the registration of such importers, manufacturers and dealers. Section 5811 provides for a tax on the transfer of firearms covered by the Act, and section 5812 formulates the requirements for a lawful transfer of a covered firearm. Section 5821 of the Act levies a tax on the making of covered firearms. As part of the scheme to enforce the taxing provisions of the Act, section 5861 prohibits certain acts concerning firearms within the Act, including at section 5861(d) the receipt or possession of a firearm which is not registered to the receiver or possessor in the National Firearms Registration and Transfer Record. In the present case, the defendant argues that the exercise of Congress's taxing power with its attendant regulations has relegated his right to keep and bear arms to a mere privilege. Apparently, defendant claims that the Second and Ninth Amendment limit the power of Congress to enact the provisions of section 5861(d). [footnote 4] It is too late to attack the authority of Congress to pass the Act in the exercise of its taxing power. The Supreme Court in Sonzinsky v. United States, 300 U.S. 506 (1937) upheld the provisions of the occupational tax on firearms dealers, now contained in 26 U.S.C. section 5801. In Sonzinsky, the petitioner contended that the levy was not a true tax, but was imposed for the purpose of suppressing traffic in certain types of firearms, pointing out that the cumulative effect of taxes first on the importer or manufacturer, then on the dealer and finally on the transferor had a prohibitive effect and demonstrated a legislative purpose to regulate rather than to tax. In substance, defendant here makes the same argument. The Supreme Court answered these arguments, saying: On its face it is only a taxing measure, and we are asked to say that the tax, by virtue of its deterrent effect on the activities of the taxed, operates as a regulation which is beyond the congressional power. Every tax is in some measure regulatory. To some extent it interposes an economic impediment to the activity taxed as compared with others not taxed. But a tax is not any the less a tax because it has a regulatory effect . . . and it has long been established that an Act of Congress which on its face purports to be an exercise of the taxing power is not any the less so because the tax is burdensome or tends to restrict or oppress the thing taxed. . . . [footnote 5] Inquiring into the hidden motives which may move Congress to exercise a power constitutionally conferred upon it is beyond the competency of courts. They will not undertake, by collateral inquiry as to the measure of the regulatory effect of a tax, to ascribe to Congress an attempt, under the guise of taxation, to exercise another power denied by the Federal Constitution. . . . 300 U.S. at 513-14. The Supreme Court in Sonzinsky squarely held that a tax of $200 per year upon dealers of firearms was within the national taxing power, 300 U.S. at 514. Subsequent lower federal courts have treated the issue of the power of Congress to enact the taxing measures of the Act with its attendant regulations as a closed matter. United States v. Ross, 458 F.2d 1144, 1145 (5th Cir.) cert. denied, 409 U.S. 868 (1972); United States v. Giannini, 455 F.2d 147, 148 (9th Cir. 1972); United States v. Wilson, 440 F.2d 1068, 1069 (6th Cir. 1971); United States v. Smith, 341 F. Supp. 687, 688-89 (N.D. Ga. 1372). Based upon the foregoing authorities, the Court concludes that 26 U.S.C. section 5861(d) is part of the regulatory scheme which aids the enforcement of the transfer tax provisions of section 5811 of the Act. Section 5861(d) is a penalty imposed by Congress upon the receipt or possession of unregistered firearms which was enacted as a necessary and proper provision required in execution of its taxing power. The effect of the regulatory scheme upon citizens who possess or receive firearms not registered in the National Firearms Registration and Transfer Record is merely incidental to the exercise of the federal power of taxation. Even assuming that under the peculiar facts of the present case the defendant, as a militiaman has the right under the Second Amendment to keep and bear, without infringement, the weapon introduced in evidence, that right, like other rights in the Bill of Rights, is subject to reasonable limitations and is not absolute, [footnote 6] as the defendant recognizes at page 7 of his brief. The imposition of a tax and attendant regulations to insure the enforcement of the tax on the import or manufacture and the transfer of certain firearms which is within the power of Congress cannot be challenged in the courts, but only in the Congress. Congress, and not the courts, must weigh and resolve any conflicts between the taxing power and the Second Amendment. For the reasons set forth herein and for good cause appearing, the Court is constrained to make a finding of guilty, and it is therefore ORDERED that the defendant is guilty as charged in the indictment, and it is FURTHER ORDERED that this matter is continued for sentence pending the preparation of a pre-sentence report. Counsel for the defendant shall instruct him to make an appointment with Ralph H. French, United States probation Officer, Toledo, Ohio, and it is FURTHER ORDERED that defendant's appearance bond will be continued. William J. Young United States District Judge FOOTNOTES 1. 26 U.S.C section 5861(d) provides: It shall be unlawful for any person -- * * * (d) to receive or possess a firearm which is not registered to him in the National Registration and Transfer Record; * * * 2. Ohio Constitution, Article IX, Sec. 1. 3. "It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserved militia of the United States as well as of the States . . . ." Presser v. Illinois, 116 U.S. 252, 265 (1886). 4. While defendant argues about the effects of the various provisions of the Act on the manufacture of firearms, defendant has standing only the constitutionality of section 5861(d) since that is the only part of the Act he is charged with violating. 5. The Supreme Court cited the cases of Veazie Bank v. Fenno, 75 U.S. (8 Wall) 533 (1869) and McCray v. United States, 195 U.S. 27 (1904). In Veazie Bank the Supreme Court replied to the argument that a ten percent tax on the notes issued by a state bank was excessive to a point of destroying, the state franchise of the bank, The first answer to this is that the judicial cannot prescribe to the legislative departments of government limitations upon the exercise of its acknowledged powers. The power to tax may be exercised oppressively upon persons, but the responsibility of the legislature is not to the courts, but to the people by whom its members are elected. So if a particular tax bears heavily upon a corporation, or a class of corporations, it cannot for that reason only, be pronounced contrary to the Constitution 75 U.S. (8 Wall.) at 548. In McCray, Congress imposed a tax of ten cents a pound on oleomargarine colored yellow while at the same time oleomargarine free from artificial coloration causing it to look like butter was taxed at one-fourth of one cent a pound. Responding to the argument that enforcing the tax would destroy or restrict the manufacture of artificially colored oleomargarine, Mr. Justice White stated for the Supreme Court: Since . . . the taxing power conferred by the Constitution knows no limits except those expressly stated in that instrument [which are that Congress cannot tax exports, and it must impose direct taxes by the rule of apportionment and indirect taxes by the rule of uniformity] it must follow, if a tax be within the lawful power, the exertion of that power may not be judicially restrained because of the results to arise from its exercise. 195 U.S. at 59. See also United States v. Kahriger, 345 U.S. 22 (1953) (tax on persons engaged in the business of accepting wagers); United States v. Sanchez, 340 U.S. 42 (1950) (tax on marihuana); Nigro v. United States, 276 U.S. 332 and United States v. Doremus, 249 U.S. 86 (1919) (tax on narcotics). 6. Even under the First Amendment, some expressions are subject to limitations, such as speech which incites lawless action, Brandenburg v. Ohio 395 U.S. 444 (1969); and obscenity, Miller v. California, 413 U.S. 15 (1973). Also, the Court of Appeals for the Sixth Circuit has held that the Second Amendment is subject to limitations, such as the provision in 18 U.S.C. section 1202(a)(1) which makes it a criminal offense for a person convicted of a felony to receive, possess, or transport in commerce any firearm. Stevens v. United States, 440 F.2d 144, 149 (6th Cir. 1971).