and sir about the statute what more is that the transferee cannot pay the two hundred dollars transfer tax in order to legitimize his possession only the transfer or counsel  this is robert let's assume for the moment i agree with you completely that it is a violation of congress with taxing power as a panel member could i won't speak for my other fellow panel members get around critically here are some of the differences in spare key the defendant there was a maker not a tramp free it was a homemade pipe bomb that he may not a silencer and he raised a completely different argument  argues that it was impossible to register the pipe bomb whereas here we're arguing that the transferees punishment does not a revenue purpose of the statute and then ross we have similar distinction subsection that your client is charged with right yes yes how again then i'll go back to my question how could i possibly as a panel member not be bound by both the facially the fatal and as appl challenges to your to your client's conviction because both my client and the you're right but they were both charged with the possession however it still makes a difference in the i don't see how that to distinguish in fact for the taxation purposes which as i understand your argument rely on the fact that the department of justice rather than the i r s does it that there's very little collections that the punishment has been enhanced but th i mean you're arguing is unconstitutional because there's no distinction i'm sorry you're arguing that some constitution comes exceed our congress to tax well it exceeds the power of congress to tax here because it has nothing to do with s i think it's to answer your question requires looking at the packing power as a whole and recognizing that it is limited it is and it does not allow congress to they are the ones who are responsible for paying the tax so they're perfect could be some rational basis for punishing them for not paying the taxes they are obligated to pay but here what you're doing is you're punishing the transfer  purportedly for some tax that someone else is required to pay and that he doesn't even need to know whether it was paid or not again it's the problem the problem i'm having counseling again i can only speak for myself it is not that i'm not hearing you are unsympathetic to the argument it's that we have a case that seems to be directly on point with the same exact charges where we addressed similar although not the exact arguments that you're making i'm just having trouble getting around that we're bound by our precedent on this and it may be that we shouldn't be bound and it may be that you know the obama court the supreme court should take this issue up but for a panel member i just i'm having trouble trying to get around what i what i think the law is and that governs my decision clear we do if the court finds that the panel finds that you are bound by prior precedent we do submit that the court they issue should be taken on by on or about the supreme court however i do think that the court can we because of the differences that the very similar if not the same arguments were made in the cox case the th circuit ruled against those arguments and the supreme court very recently denied surgery yes your honor we we don't agree with  rely on that particular case because of what counsel said which is that the possession charge the statute that is whose issue here was added in one hundred and fifty four dollars it's harder for me to see that that upholding of a statute that didn't exist somehow bind we i don't know if i understand that your honor but i think what becomes important then is is how this court has subsequently applied it in other contexts including the perky and ross concept which are which has as your honor and i believe judge carnes also pointed out are are much broader and much more applicable to this particular case and i and i think that the the confiscation particular which which your honor was referring to which recently but notwithstanding that those historical developments most of which were already in place before this court decided sparky really were already you know they don't change the constitutional malices as had been established by the side just the case although so i think the court's point regarding the fact that it was a slightly different statute that the overall premise of be the use of the constitutional taxing authority in a variety of ways under the national fire all is in aid of congress's taxing power because it increases the insanity on the original possessor owner to pay the tax go i think i think that's right and i think that's what i was trying to get at before when i was bringing up the fact that some of this court cases i believe it was the ross case did talk about the fact that the registration of power so i think you know realistically to the extent that we're talking about the general question regarding the proper implementation of the taxing power and and in a way that does not run afoul of the ten  amendments reservation of police powers to the states we're talking about that you know those constitutional principles are applied without necessarily getting bogged down in the the technical aspects of the nature of the particular devices involved i think miss bailey was referring to the fact that several of the devices involved in these cases were different from a silencer none of them involve a silencer and i just i just don't see how that really makes any difference difference at all for for purposes of the the constitutional i'm allison and as i said before i do think that with respect to the the the various historical developments  sebelius relied on the n s a as recently as two thousand and twelve as a as a perfectly fine obviously regulatory tax and nothing new then how can we say that very same tax is unconstitutional for one year