BIDEN WILL BE ONE OF THE MOST HOSTILE PRESIDENTS TO GUN OWNERSHIP IN RECENT HISTORY

BIDEN WILL BE ONE OF THE MOST HOSTILE PRESIDENTS TO GUN OWNERSHIP IN RECENT HISTORY
by
Julio Gonzalez, M.D., J.D.

Former Vice President Joe Biden's tenure as President, should he attain it, will no sooner evoke American unification than will the riots that have plagued Portland. If the Former Vice President were to prevail, he will be the first president in modern history to have won his race without so much as mounting a campaign. He will have won it under circumstances suspicious to all but his servants.

All that aside, former Vice President Biden is certainly making no inroads at winning the hearts of those who opposed him with his plans of taxing America's gun owners. It seems that despite Biden's campaign rhetoric, he has recognized the existence of a Second Amendment that prohibits him from being able to actually take Americans' weapons. As a result, he has had to find a different avenue through which to accomplish his draconian plan of leaving Americans defenseless in an increasingly hostile world. He will tax them out of you.

Enter the National Firearms Act of 1934 (NFA). The statute was passed nearly ninety years ago by Congress with the end of "curtail[ing] if not prohibit[ing] the sale of NFA firearms." There were multiple provisions to the NFA, but one required those possessing NFA firearms to register with the Treasury Department. Under this provision, the Treasury Department was then free to share the information contained in the registration with the various states, particularly those where possession of such weapons was illegal. Bear in mind that under the 1934 Act a "firearm" was defined as a "pistol, revolver, shotgun having a barrel less than sixteen inches in length, or any other firearm capable of being concealed on the person a muffler or a machine gun," the latter term included any "weapon designed to shoot automatically or semiautomatically twelve or more shots without reloading." As such, any modern pistol with a 15 round magazine would be considered an NFA firearm."

The constitutionality of the NFA was challenged such that in Haynes v. United States (U.S. 1968), the Supreme Court struck the law down. Here, the Supreme Court considered the narrow question regarding the constitutionality of being forced to fill out a registration in order to legally own a firearm when that information could then be submitted to a state agency to assist it in prosecuting a violation of state law. The Supreme Court found the NFA repugnant to the Fifth Amendment's prohibition against self-incrimination, making the federal statute essentially meaningless. Congress subsequently amended the NFA to address the issues of self-incrimination.

The NFA had another provision, a transfer tax of $200.00. Former Vice President Biden wishes to apply this tax on all owners of any semiautomatic weapon. It's obvious that, just like Congress did in 1934, the former Vice President intends to use this provision as a method of curtailing, if not prohibiting, the sale and possession of NFA firearms. The question is, can he?

There are a number of issues with his approach. First, AR-15-styled weapons were not in existence in 1934 when the NFA was passed so an argument can easily be made that the NFA does not specifically apply to AR-15s. Yes, Congress did pass the Violent Control and Law Enforcement Act ("VCLA") in 1994, which defined the Colt AR-15 and its copies or duplicates as "Semiautomatic Assault Weapon[s]." However, the statute expired in 2004 and did not apply the NFA's transfer tax upon these weapons. Second, although Congress's taxation powers are indeed broad, there are problems with the application of a transfer tax to an already owned property, especially when ownership of that property is protected under a constitutional amendment. Third, since the VCLA made it illegal for the government to use the information in the registration of a legally purchased NFA firearm in support of a prosecution, it becomes difficult for Biden to counteract the amended version of the NFA in order to prosecute those already in possession of an NFA firearm. Fourth, the Court generally looks unfavorably upon the use of ex post facto laws punishing those who engaged in an activity, criminal or not, prior to the enactment of the law. Finally, since the passage of the NFA and the VCLA, the Supreme Court has maintained in District of Columbia v. Heller and McDonald v. City of Chicago that the Second Amendment protects an individual's right to possess a firearm for the purpose of self defense and the weapons thus protected include any firearm in common use. The AR-15 is the most popular rifle in America and one commonly used by the police. It will be difficult for the court to support legislation that essentially acts to confiscate weapons protected in Heller and McDonald.

In the end, should former Vice President Biden attain the office of President of the United States, we can expect one of the most hostile positions towards gun ownership and self-defense of any recent administration, an absurd position when one considers a similar assault by those same proponents on law enforcement. The bottom line is if there is a time for Congress and the judiciary to keep the executive in check, the next four years will be it.


Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He served in the Florida House of Representatives. He is the author of numerous books including The Federalist Pages, The Case for Free Market Healthcare, and Coronalessons. He is available for appearances and book signings, and can be reached through www.thefederalistpages.com.

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