The question for decision is whether section 2 of the National Firearms Act of June 26, 1934, c. 757, 48 Stat. 1236, 26 U.S.C. §§ 1132-1132q (26 U.S.C.A. §§ 1132-1132q), which imposes a $200 annual license tax on dealers in firearms, is a constitutional exercise of the legislative power of Congress.
Petitioner was convicted by the District Court for Eastern Illinois on two counts of an indictment, the first charging him with violation of section 2 (26 U.S.C.A. § 1132a), by dealing in firearms without payment of the tax. On appeal the Circuit Court of Appeals set aside the conviction on the second count and affirmed on the first. 86 F.(2d) 486. On petition of the accused we granted certiorari, limited to the question of the constitutional validity of the statute in its application under the first count in the indictment. 300 U.S. 648, 57 S.Ct. 491, 81 L.Ed. --.
Section 2 of the National Firearms Act (26 U.S.C.A. § 1132a) requires every dealer in firearms to register with the Collector of Internal Revenue in the district where he carries on business, and to pay a special excise tax of $200 a year. Importers or manufacturers are taxed $500 a year. Section 3 (26 U.S.C.A. § 1132b) imposes a tax of $200 on each transfer of a firearm, payable by the transferor, and section 4 (26 U.S.C.A. § 1132c) prescribes regulations for the identification of purchasers. The term 'firearm' is defined by section 1 (26 U.S.C.A. § 1132) as meaning a shotgun or a rifle having a barrel less than eighteen inches in length, or any other weapon, except a pistol or revolver, from which a shot is discharged by an explosive, if capable of being concealed on the person, or a machine gun, and includes a muffler or silencer for any firearm. As the conviction for nonpayment of the tax exacted by section 2 has alone been sustained, it is unnecessary to inquire whether the different tax levied by section 3 and the regulations pertaining to it are valid. Section 16 (26 U.S.C.A. § 1132o) declares that the provisions of the act are separable. Each tax is on a different activity and is collectible independently of the other. Full effect may be given to the license tax standing alone, even though all other provisions are invalid. Weller v. New York, 268 U.S. 319, 45 S.Ct. 556, 69 L.Ed. 978; Marshall Field & Co. v. Clark, 143 U.S. 649, 697, 12 S.Ct. 495, 36 L.Ed. 294; cf. Champlin Refining Co. v. Corporation Commission, 286 U.S. 210, 234, 52 S.Ct. 559, 564, 76 L.Ed. 1062, 86 A.L.R. 403.
In the exercise of its constitutional power to lay taxes, Congress may select the subjects of taxation, choosing some and omitting others. See Flint v. Stone Tracy Co., 220 U.S. 107, 158, 31 S.Ct. 342, 55 L.Ed. 389, Ann.Cas.1912B, 1312; Nicol v. Ames, 173 U.S. 509, 516, 19 S.Ct. 522, 43 L.Ed. 786; Bromley v. McCaughn, 280 U.S. 124, 50 S.Ct. 46, 74 L.Ed. 226. Its power extends to the imposition of exercise taxes upon the doing of business. See License Tax Cases, 5 Wall. 462, 18 L.Ed. 497; Spreckles Sugar Refining Co. v. McClain, 192 U.S. 397, 412, 24 S.Ct. 376, 48 L.Ed. 496; United States v. Doremus, 249 U.S. 86, 94, 39 S.Ct. 214, 63 L.Ed. 493. Petitioner does not deny that Congress may tax his business as a dealer in firearms. He insists that the present levy is not a true tax, but a penalty imposed for the purpose of suppressing traffic in a certain noxious type of firearms, the local regulation of which is reserved to the states because not granted to the national government. To establish its penal and prohibitive character, he relies on the amounts of the tax imposed by section 2 on dealers, manufacturers, and importers, and of the tax imposed by section 3 on each transfer of a 'firearm,' payable by the transferor. The cumulative effect on the distribution of a limited class of firearms, of relatively small value, by the successive imposition of different taxes, one on the business of the importer or manufacturer, another on that of the dealer, and a third on the transfer to a buyer, is said to be prohibitive in effect and to disclose unmistakably the legislative purpose to regulate rather than to tax.
