SCOTUS Takes Strange Turns

Last week, the Supreme Court rendered two decisions that are far afield from conservative thought and constitutional jurisprudence. One is fundamentally wrong and the other shows considerable dissention and perhaps confusion among the Court’s members about the Second Amendment.

First, in Moore v. US, the Court ruled that congress can tax income before it is received. In the second decision, US v. Rahimi, the Court ruled that a person can be deprived of his Second Amendment rights under a federal law that prohibits possession of firearms by people who are subject to certain protective orders. (READ MORE from Jed Babbin: Biden’s Border Crisis Comes Home to Roost)

In Moore, the Court upheld the 2017 “mandatory repatriation tax,” which went after investors in primarily American-owned foreign corporations that held their assets overseas. The one-time tax was imposed on the investors in proportion to their ownership of the company and was imposed regardless of whether the person had actually received the income.

In the case of the Moores, they were socked with a tax bill in excess of $14,000 despite the fact that they had not received a dime’s income from the investment.

The court — divided 7-2 — ruled that the so-called “repatriation tax” was constitutional and did so by tying itself in several logical knots. Chief Justice Roberts and Justice Kavanaugh followed the illogic of Congress. Kavanaugh wrote, “It has gone without serious question in both Congress and the federal courts that Congress can attribute the undistributed income of an entity to the entity’s shareholders or partners, and tax the shareholders or partners on their pro rata share of the entity’s undistributed income.”

The correct response to that is, “yeah, so what?”

Justices Amy Coney Barrett and Sam Alito followed a vastly different path, but still — shockingly — upheld the tax. As Barrett wrote, the answer to whether Congress can tax the appreciation of property is “no.” Barrett wrote, “The Sixteenth Amendment’s reference to income ‘derived’ from any source encompasses a requirement that income, to be taxed without apportionment, must be realized.”

Barrett and Alito were right but inexplicably voted in favor of upholding the law. Think about this decision’s effect.

Let’s say you bought a house ten years ago. It has probably appreciated in value and the selling price you could get is probably double what you paid for it.

Under the Moore decision, Congress can pass a law taxing you on the amount your house has appreciated before you sell it. That’s totally against the logic — such as it is — of the Sixteenth Amendment and the tax laws.

Let’s remember that the Sixteenth Amendment, which gives Congress the power to tax says, “The Congress shall have the power to lay and collect taxes on incomes from whatever source derived.” It does not say that Congress has the power to tax anyone for anything unless and until the income is “derived,” i.e., actually received.

Before Moore, you had to actually receive the income from selling your asset — be it your house, stocks, or whatever — before it could be taxed. No more because of Moore. It will be vastly harder to accumulate anything that resembles wealth.

Moore paves the way for so-called “wealth taxes” on people who are holding their assets and not realizing any gain from their sale.

The Moore decision is entirely wrong. It matters not that the Court was probably concerned that other tax laws could be upended by a contrary decision. Income taxes can only be applied when income is actually received. Shame on Roberts, Kavanaugh, Barrett and Alito for joining the libs — Jackson, Sotomayor and Kagan — in upholding the “repatriation tax.”

Only Clarence Thomas and Neil Gorsuch dissented.

A little over a week ago, the Court struck down the Trump-era rule that banned “bump stocks” on the basis that they effectively convert a semi-automatic gun into a machine gun. The Court found that because a bump stock still requires a pull of the trigger to fire a round — machine guns fire multiple rounds with each trigger pull — that the bump stock rule was unconstitutional.

That decision makes sense in terms of firearms’ functionality.

The sole dissenter in Rahimi, Clarence Thomas, wrote the earlier decision in the Bruen case. In that decision, he wrote that for a new gun control law to be valid there had to be historical precedent for it. In this case, there wasn’t one.

Neither functionality nor historical precedent is the new rule under Rahimi.

In the Rahimi case, the Court diverted itself from its otherwise sensible Second Amendment views to rule that a federal law — akin to state “red flag” laws — is constitutional despite the fact that there is no historical precedent for it.

As Justice Thomas wrote in his dissenting opinion in Rahimi, “Not a single historical regulation justifies the statute at issue … Surety laws were, in a nutshell, a fine on certain behavior,” and “imposed a far less onerous burden” than depriving a person of his Second Amendment rights. (READ MORE: Hunter’s Laptop: The Other Story)

But now, in Rahimi, it ruled by 8-1 that simply because someone is under a civil restraining order, he can be disarmed.

By all means, Rahimi should have been disarmed. He’s a bad guy, having threatened that he’d shoot his girlfriend and firing a shot in an argument with her that was witnessed by others. He also, according to a Wall Street Journal report, fired one or more shots at the house of someone who bought drugs from him.

Rahimi was, according to that same WSJ report, sentenced to seventy-three months in prison for possessing a firearm while under a protective order.

The Constitutional question of Rahimi being disarmed arises under both the Second and Fifth Amendments.

Chief Justice Roberts, in the opinion of the Court, wrote that, “An individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed consistent with the Second Amendment.” Roberts added, “The Second Amendment permits more than just those regulations identical to ones that could be found in 1791. Holding otherwise would be as mistaken as applying the protections of the right only to muskets and sabers.”

The problem comes down to how Rahimi was afforded due process under the Fifth Amendment.

It is apparent that he was. As the Court’s decision recites, Rahimi was given notice and opportunity to defend against the civil protective order and even consented to it.

In his lone dissent, Clarence Thomas wanted to decide the matter on the question of “whether the Government can strip the Second Amendment right of anyone subject to a protective order — even if he has never been accused or convicted of a crime.”

Justice Thomas — again, the author of the Bruen “historical precedent” decision — is correct. But the fact that Chief Justice Roberts and the rest of the Court skipped over the Bruen analysis to simply declare that a person can be deprived temporarily of their Second Amendment rights proves that the Second Amendment — to this court — is not as strong a guarantee of our rights as its “shall not be infringed” language should be.

Every state with a “red flag” law will celebrate this decision because it affirms their ability to deprive someone of his Second Amendment rights at the whim of state judges with or without due process.

These two decisions should decide the presidential election. If, as is expected, both Samuel Alito and Clarence Thomas retire during the next presidential term, can we risk two more Supreme Court justices like Sotomayor, Kagan and Jackson? Do we really want a liberal majority on the Supreme Court for the next twenty years?

That question answers itself.

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