The federal trial of a Kansas man for manufacturing and selling firearms and silencers without a federal license could very well turn out to be the pivotal case that not only challenges the constitutionality of the National Firearms Act of 1934, but also every federal firearms law ever passed in a battle that will determine whether it is the states or the federal government that has the constitutional right to pass gun laws.
Put bluntly, this could be huge.
When Shane Cox began selling his homemade firearms and silencers out of his military surplus store, he stamped “Made in Kansas” on them to assure buyers that a Kansas law would prevent federal prosecution of anyone owning firearms made, sold and kept in the state.
The 45-year-old Chanute resident also handed out copies to customers of the Second Amendment Protection Act passed in 2013 by the Kansas Legislature and signed by Gov. Sam Brownback, and even collected sales taxes. His biggest selling item was unregistered gun silencers that were flying out of the shop as fast as Cox could make them, prosecutors said later. One of those customers – 28-year-old Jeremy Kettler of Chanute – was so enthusiastic about the silencer that he posted a video on Facebook.
But last week a jury found Cox guilty of violating federal law for the manufacture, sale and possession of unregistered firearms and silencers. Kettler was found guilty on one count for possessing the unregistered silencer.
The case could reverberate across the country because it cites the Second Amendment to the U.S. Constitution, pitting the federal government’s right to regulate firearms against the rights of states. The judge overseeing the case expects it ultimately to end up before the U.S. Supreme Court.
At trial, defense attorneys contended their clients believed the Kansas law made their activities legal, arguing they are “caught in the crossfire” of the struggle between the state and the federal government over gun control.
Cox and Kettler were convicted under the National Firearms Act, which is a part of the Internal Revenue code enacted under Congress’ power to levy taxes. The case raises the question of whether that taxing authority can be used to regulate firearms that stay within state borders. Advocates for state’s rights also contend such guns do not fall under Congress’ power to regulate interstate commerce.
After a decades-long wait, we finally appear to have a case that is likely to see the United States Supreme Court have to directly examine whether the Founding Fathers meant what they said when they wrote amendments to a federal Constitution that was designed to tightly bind and constrict the reach of the federal government.
What most 21st Century Americans simply do not grasp is that the Constitution and Bill of Rights were not written to to give rights to the citizens of our then-new nation, but was instead written to tightly constrain the federal government.
The Founders had just won a long and brutal war against a far-away foreign government, and the Federalists and Anti-Federalists were locked in a power struggle on just how much power the federal government in a swamp on the Potomac River would be allowed to have. The Federalists were concerned that the federal government would be anemic and far too weak to be of any use at all, while the Anti-Federalists wanted the power to remain where they felt it belonged, with the states, so that the people in each state could determine what is best for that state’s citizens.
The Bill of Rights was added to the Constitution to placate the concerns of the Anti-Federalists, and was mean to be ten strong chains binding down the then-puny federal leviathan to prevent future abuses.
The Second Amendment of the Bill of Rights was written by Founding Fathers who understood the right to bear arms as a natural human right that the Creator bestowed upon each and every human being. How can there be any other right, if the right to defend your life is not the most paramount right of them all?
They almost felt it silly to have to codify a natural right that was so obviously self-evident to them, but knowing that a federal government unchained is a federal government tyrannical, they ratified the basic human right to bear arms within the Second Amendment.
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
The Founders and following generations thought this to be very clear language. They recognized a well-armed and well-trained citizenry as the well-regulated militia, and that having citizens both well-armed and well-trained with military-grade arms was imperative to the survival of the young Republic not just against foreign nations and native tribes, but also the ever-hungry, ever-corrupting desire of nation-states to grow and seize power for themselves, turning citizens into subjects, and subjects into slaves with both edicts and chains figurative and literal.
That the Second Amendment meant the federal government in Washington had no power to constrain or regulate arms was unquestioned reality for the first 143 years of our Republic, and then the Democrats of the 1930s, under the disreputable and dishonorable Franklin D. Roosevelt, decided that the Constitution and Bill of Rights no longer mattered.
FDR and his congress were bound and determined to enslave the states to the will of his federal government, and the National Firearms Act of 1934 was a direct challenge to the sovereignty of the states to make laws regarding firearms. It was also a thumb in the eye of the Founders who had clearly written the Second Amendment to mean that the federal government was constrained from passing gun laws.
That’s precisely what the Founders meant when they wrote that “the right of the people to keep and bear Arms, shall not be infringed” upon by the federal government. Quite simply, the Congress and President lack the constitutional authority to pass any gun laws.
Not a single one.
The only federal challenge to the constitutionality of National Firearms Act to date was U.S. vs Miller in 1939, which was uncontested when neither the defendant nor his attorney showed before the federal court.
As a result, we’ve never had these federal gun laws challenged on the fundamental level.
If Cox and Kettler’s attorneys see this challenge through the courts, we can expect it to arrive before a U.S. Supreme Court in several years time. It will be a high court shaped by the 45th President of the United States, Donald Trump, and the organization that spent more money than any other to help him win the Presidency, the National Rifle Association.
If President Trump and a Republican-controlled Senate put a textualist judge on the high court to replace Antonin Scalia, and any or all or the three elderly liberal-to-moderate justices are replaced by textualists before Cox and Kettler come before the high court, there would seem to be a high likelihood that a strict reading of the Constitution and Second Amendment would regard the National Firearms Act as clearly being an unconstitutional usurpation of powers reserved for the states.
If the “Trump Court” is composed of a textualist majority and the cult of the “living Constitution” dies off, then there is a very strong possibility that the National Firearms Act of 1934, the Gun Control Act of 1968, the Firearm Owners Protection Act of 1986, and the proposed National Concealed Carry Reciprocity Act—literally every federal gun law, both for gun rights and for gun control—will be thrown out in short order as unconstitutional laws Congress never had the authority to pass, or laws that the federal government has the authority to enforce.
It’s going to be very tempting for most of the nation to celebrate such an affirmation of states rights, but it’s also important to realize that as the Supreme Court strikes down federal powers to pass gun laws, it simultaneously places those powers in the hands of state governments, and not all state governments were smart enough to mirror the natural right to bear arms reflected in the Second Amendment.
While recognizing the Second Amendment’s intent to outlaw federal gun control is undoubtably a good thing for the nation overall, I cannot pretend to have a crystal ball to foresee what that might mean on the state level, and what that may mean in states who refuse to treat their citizens as anything other than subjects.
We indeed live in interesting times, and I look forward to living in a world where the Supreme Court upholds the laws of the land, and not the whims of activists in robes.