A few weeks ago, two men were convicted in Kansas under the National Firearms Act for doing what was legal under state law. The feds ignored a state law that prohibited the federal government from enforcing any laws restricting firearms within the borders of Kansas.
This showdown pitted States Rights and the Second Amendment against the taxing power of the federal government. Caught in the middle were two men acting under the guidance of the state law, believing their activity to be protected from interference from Washington. That was not the case.
In this article, we will explore the history behind the NFA and why now may be the right time to challenge its constitutionality.
The year was 1934. It was a different era in America. We were in the midst of the Great Depression. Unemployment was 22 percent. Newly elected President Franklin Roosevelt pledged to bring about recovery by government intervention through his New Deal. The Public Works Administration was created to clear the slums of New York and build public housing.
The average house cost less than $6,000. Rental houses went for $20 per month. Gas was 10 cents a gallon. Average wages were about $1,600 per year.
As part of the government intervention, the U. S. Housing Authority and the Securities and Exchange Commission were formed. The Alcohol Tax Unit (ATU) was formed under the Department of Treasury and would later become the Bureau of Alcohol, Tobacco, and Firearms (ATF) in 1970.
Prohibition had just ended in December of 1933 and the country was ill-prepared to re-establish the legal liquor industry. Criminal syndicates continued to illegally produce and distribute distilled spirits. Organized crime escalated as gangs battled for control of underground distilleries and distribution networks. Machine guns continued to be the weapon of choice.
It was the time of Elliot Ness, the Special Agent in Charge of the ATU in Cincinnati. And John Dillinger, Bonnie & Clyde, Baby Face Nelson.
Congress, in an attempt to address crime, passed the National Firearms Act of 1934 under the guise of a revenue enhancement measure. As enacted, the NFA imposed a tax on the making and transfer of firearms defined by the Act, as well as a special (occupational) tax on persons and entities engaged in the business of importing, manufacturing, and dealing in NFA firearms. The law also required the registration of all NFA firearms with the Secretary of the Treasury. Firearms subject to the 1934 Act included shotguns and rifles having barrels less than 18 inches in length, certain firearms described as “any other weapons,” machine guns, and firearm mufflers and silencers.
While the NFA was an exercise of the taxing authority of Congress, it had an underlying purpose to curtail or even prohibit the transactions in NFA firearms. The $200 making and transfer taxes on most NFA firearms were considered quite severe at the time and adequate to carry out Congress’ purpose to discourage or eliminate transactions in these firearms. The $200 tax has not changed since 1934.
Furthermore, the NFA imposed a duty on persons transferring NFA firearms, as well as mere possessors of unregistered firearms, to register them with the Secretary of the Treasury. If the possessor of an unregistered firearm applied to register the firearm as required by the NFA, the Treasury Department would supply information to State authorities about the registrant’s possession of the firearm. State authorities could then use the information to prosecute the person whose possession violated State laws.
In 1938, Congress passed the Federal Firearms Act of 1938 (FFA), imposing a federal license requirement on gun manufacturers, importers, and persons in the business of selling firearms. The law also required licensees to maintain customer records, and it made illegal the transfer of firearms to certain classes of persons, such as convicted felons. These classes of persons are commonly referred to as “prohibited persons.
Both the NFA and the FFA were enforced by the ATU.
The Supreme Court in 1968 held in the case of Haynes v. United States, 390 U.S. 85 (1968), that a person prosecuted for possessing an unregistered NFA firearm had a valid defense to the prosecution — the registration requirement imposed on the possessor of an unregistered firearm violated the possessor’s privilege from self-incrimination under the Fifth Amendment of the U.S. Constitution. The Haynes decision made the 1934 Act virtually unenforceable.
That same year, Congress sought to cure the constitutional flaw the Haynes decision pointed out by enacting the Gun Control Act of 1968 (GCA).
Gun Control Act of 1968
Under the GCA, the requirement for possessors of unregistered firearms to register was removed as there was no mechanism for a possessor to register an unregistered NFA firearm already possessed by the person. Additionally, a provision was added to the law prohibiting the use of any information from an NFA application or registration as evidence against the person in a criminal proceeding with respect to a violation of law occurring prior to or concurrently with the filing of the application or registration. In 1971, the Supreme Court reexamined the NFA in United States v. Freed, 401 U.S. 601 (1971) and found that the 1968 amendments cured the constitutional defect in the original NFA, that the Act’s registration requirements do not violate the Fifth Amendment of the United States Constitution.
The GCA also amended the NFA definitions of “firearm” by adding “destructive devices” and expanding the definition of machine gun.”
The NFA was amended once more in 1986 with the passage of the Firearm Owners Protection Act to prohibit the transfer or possession of machine guns. Exceptions were made for transfers of machine guns to, or possession of machine guns by, government agencies, and those lawfully possessed before the effective date of the prohibition, May 19, 1986. It further amended the NFA definition of “silencer” by adding combinations of parts for silencers and any part intended for use in the assembly or fabrication of a silencer.
And that brings us to the case of United States v. Shane Cox and Jeremy Kettler, 6:15-cr-10150-JTM-01,02, in the United States District Court for the District of Kansas.
On November 14, 2016, Cox was found guilty of violating federal law, in particular the NFA, for the manufacture, sale and possession of unregistered firearms and silencers, and Kettler was found guilty on one count for possessing the unregistered silencer.
The NFA requires that firearms and accessories such as silencers bear the name of the manufacturer, the city or state where they are made and a serial number. Cox, owner of an Army surplus store in Chanute, KS, called Tough Guys, was manufacturing and selling silencers without a serial number, they were not registered, nor did he have a federal license to manufacture NFA items.
Sounds pretty straight forward, doesn’t it?
Not so fast.
In 2013, Kansas Governor Sam Brownback signed into law the strictest Second Amendment protection law in the nation. “The Second Amendment Protection Act, (SAPA).
Kansas legislators considered the bill to be a “jobs bill” in hopes of keeping gun manufacturers from leaving the State. SAPA provides Kansas residents protection of their Second Amendment rights by exemption from federal gun control laws, including bans or restrictions on certain guns, magazines or ammunition, for all guns and accessories within the state’s borders.
Any act, law, treaty, order, rule or regulation of the government of the United States which violates the Second Amendment to the Constitution of the United States is null, void and unenforceable in the state of Kansas.
The law also prevents any federal agent from enforcing federal gun control laws within the state, as well as allowing prosecution of federal officers who try to enforce such laws within the state’s borders. Then U.S. Attorney General Eric Holder sent a letter to Brownback saying, in his opinion, the law was in conflict with federal law and therefore unconstitutional. Further, Holder stated that “Under the Supremacy Clause of the United States Constitution, Kansas may not prevent federal employees and officials from carrying out their official responsibilities.”
Cox, relying upon SAPA, began manufacturing silencers for sale to Kansas residents, and even handed them a copy of SAPA with their purchase. Kettler purchased a “so-called illegal” silencer from Cox. Both parties believed their activities were legal in Kansas under state law.
Furthermore, silencers are legal to own in 42 states, including Kansas, but are regulated by federal law and on a state-by-state basis by the Nation Firearm Act (NFA) branch of the Bureau of Alcohol, Tobacco, Firearms and Explosives (BAFTE).
The Legal Battle Between States and the Federal Government
Cox and Kettler are caught in the “crossfire” between State’s Rights under the Tenth Amendment to the U.S. Constitution, and Article VI, Clause 2 of the Constitution, known as the Supremacy Clause. The Supremacy Clause establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the supreme law of the land. It provides that state courts are bound by the supreme law; in case of conflict between federal and state law, the federal law must be applied. Even state constitutions are subordinate to federal law.
The first challenge to the NFA occurred in the case of United States v. Miller, 26 F. Supp. 1002 (W.D. Ark. 1939). Miller involved a criminal prosecution under the National Firearms Act of 1934, challenging the relevant section of the NFA as an unconstitutional violation of the Second Amendment.
Miller, a known bank robber, was arrested for carrying an unregistered sawed-off shotgun across state lines.
The District Judge Hiram Heartsill Ragon, for the United States District Court for the Western District of Arkansas, dismissed the indictment, holding that the NFA violated the Second Amendment. The case was then quickly appealed to the Supreme Court.
But here is where it gets interesting.
The case was heard before the Court on March 30, 1939. Attorneys for the United States appeared and argued: 1) the NFA is intended as a revenue-collecting measure and therefore within the authority of the Department of the Treasury; 2) the defendant transported the shotgun from Oklahoma to Arkansas, and therefore used it in interstate commerce; 3) the Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia; and 4) the “double barrel 12-gauge shotgun having a barrel less than 18 inches in length was never used in any militia organization.
Neither Miller nor his attorneys appeared to present an argument nor evidence to counter the government’s position, including the argument that sawed-off shotguns were common in the trenches during the First World War.
Therefore, the Supreme Court reversed the lower court’s ruling, holding the Second Amendment does not guarantee the right to keep and bear a sawed-off shotgun as a matter of law and the NFA did not violate the Second Amendment. See United States v. Miller, 307 U.S. 174 (1939).
In his opinion, Justice James Clark McReynolds assumed the Second Amendment guarantees the right to keep and bear arms in order to ensure an effective militia exists. However, he concluded that whether or not the Second Amendment guaranteed an individual right to keep and bear arms, it hardly prohibited Congress from taxing particular weapons through the likes of the NFA nor from regulating firearms. Furthermore, McReynolds adopted the government’s argument presented in its brief to the Court: the Second Amendment does not protect weapons used by criminals.
And for nearly seventy years, Miller remained the only case interpreting the Second Amendment, until District of Columbia v Heller, 554 U.S. 570 (2008) that held the Second Amendment protects an individual’s right to possess a firearm for traditionally lawful purposes, and that “Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.” And no other case attempted to challenge the NFA on constitutional grounds.
But now, the Cox case may be just the right case at the right time to present the Supreme Court with another opportunity to review the restrictions of the NFA from their interpretation of the Second Amendment and with a new view towards Miller.
The Supreme Court in Miller ruled that Congress had the right to regulate certain types of firearms, as the Second Amendment existed so that citizens could acquire privately-owned weapons for militia use. For the most part, the weapons that were regulated by the NFA were not military weapons at the time, although some would argue the sawed-off shotgun, with a barrel length of less than eighteen inches, was a commonly used weapon in World War I.
In modern usage, minimum length and barrel length restrictions only apply to civilian use; military and police departments may issue short-barreled shotguns, and major manufacturers offer special models with barrels in the range of 10 to 14 inches as riot shotguns or combat shotguns for use in areas with restricted space. In fact, Mossberg offers its Model 590A1 with a 14-inch barrel to the military and to law enforcement agencies.
Originally, the NFA required rifles to have a minimum barrel length of 18 inches. However, following World War II and the Korean War, many surplus M1 carbines with 16-inch barrels found their way into the hands of civilians, so the NFA changed its regulations to require minimum barrel lengths of 16 inches for rifles. Today, however, the military commonly uses an M4 carbine with a 14 inch barrel.
How can the government reconcile the restrictions on ownership of machine guns in light of Miller since automatic weapons are commonly used by our military? The only position the government ever put forth was that sub-machine guns were used by criminals, and by taxing them, it would effectively restrict their use.
Suppressors (“silencers” as they are commonly referred to) are used by military snipers and special forces, so, once again, the restrictions put forth by the NFA conflict with the Second Amendment as interpreted under Miller.
So what does all this mean for the NFA going forward?
If Cox is appealed all the way to the Supreme Court, which could take years, it will be heard before a much different Court than even the Heller Court that first upheld the fundamental, constitutional individual right to keep and bear arms.
President-elect Donald Trump has pledged to appoint conservative justices favoring states’ rights and federalism rather than liberal justices that view the Constitution as a “living document” subject to the whims of the current panel of judges.
If a conservative Supreme Court adopts a strict interpretation of the text of the Constitution, it is not inconceivable that the Court could view the Second Amendment as a restriction upon the federal government to impose any regulation whatsoever that infringes upon the fundamental right to keep and bear arms, returning the right back to the states under the Tenth Amendment (powers not delegated to the federal government under the Constitution are reserved to the States).
If so, the National Firearms Act may just find itself relegated to the history books, like the dinosaur it is. — by Michael Wisdom, Senior Contributing Editor, Texas & U.S. Law Shield Blog