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.
