Today, we filed a brief in the U.S. Court of Appeals for the Tenth Circuit as co-counsel for the defendant, Jeremy Kettler. Mr. Kettler was convicted in federal district court of possessing a firearm noise suppressor that was not registered to him pursuant to the National Firearms Act (“NFA”).
In purchasing his suppressor, Mr. Kettler had relied on the Kansas Second Amendment Protection Act which states that a firearm or firearm accessory (such as a suppressor) that is manufactured, owned, and kept entirely within the borders of Kansas is not subject to any federal law. When Mr. Kettler revealed that he purchased such a suppressor, however, agents from the Obama Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”) swooped in to make an example of Mr. Kettler, and his co-defendant Mr. Cox.
In our brief, we argued that the NFA is unconstitutional. Although for many decades, courts (including the Supreme Court) have upheld the NFA under Congress’ power to tax, times have changed. Today, the NFA is the only “tax” that is not administered by the Treasury Department, but rather by ATF — part of the Department of Justice — responsible for enforcement of federal law. What’s more, while normal taxes are crafted to ensure that people pay them, the NFA “tax” is crafted to ensure that as many people as possible are disqualified from paying it, and as many weapons as possible are disqualified from registration. That hardly sounds like a real tax.
Next, we noted that in 1934, registration of an NFA firearm was relatively simple, while today it is a regulatory nightmare, indicating that today the purpose of the NFA is regulation, not taxation.
Finally, we noted that while the NFA in 1934 actually produced tax revenue, its “taxes” have never been raised from $5 and $200, and thus today it produces no net revenue — and in fact is a huge drain on federal resources. How can the NFA be a “tax” when its net effect is to cost the taxpayer tens of millions of dollars annually?
Next, we argued that even if the NFA is considered a tax, then it is an unconstitutional tax on the constitutionally protected right to keep and bear arms. As the Supreme Court has held, in order to validly tax a constitutional right, a tax must not be a general revenue tax, but instead must be tied to defraying the expenses of administering the program. However the NFA “tax” is paid directly to the Treasury Department, and is not used by ATF to fund the administration of the NFA. And since suppressors are owned and lawfully used by millions of law abiding Americans, they are clearly protected “arms” under the Second Amendment’s protection.
Next, we noted that Mr. Kettler’s prosecution is not an ordinary criminal prosecution, but rather a constitutional dispute between two sovereign entities — the federal government and the State of Kansas. As such, the federal government should have resolved this dispute directly with the State of Kansas, rather than going after Mr. Kettler, the low hanging fruit. This case raises important constitutional questions about the scope of federal power, and its proper resolution is between the United States and Kansas — not between the United States and Mr.
Finally, we noted that in this case, Mr. Kettler had no sort of typical “mens rea” or “guilty mind” indicating he intended to violate the law. Rather, it is undisputed that he was attempting to follow the Kansas law, and that he believed (even if mistakenly) that what he was doing was lawful. For the Court of Appeals to permit his felony conviction to stand under such circumstances is indefensible.