The Gun Owners of America’s legal arm, the Gun Owners Foundation, is pressing further in their full-throated defense of Jeremy Kettler, a disabled US Army combat veteran. Mr. Kettler was convicted of possession of an unregistered firearm in violation of the National Firearms Act (NFA) in November 2016.

The original complaint against Mr. Kettler and his co-defendant Shane Cox accused them of:

1. Making false statements during a federal investigation,
2. Conspiring to make, receive, and transfer an NFA firearm, and
3. Possessing an unregistered NFA firearm.

The Defense of Jeremy Kettler

What makes this case particularly interesting is Mr. Kettler and his co-defendant’s original defense. Kansas law includes the “Second Amendment Protection Act”. The Act states that any firearm accessories manufactured, owned, and remaining within Kansas are not subject to the provisions of the NFA or any Federal law. Further, the Act specifically mentioned suppressors as one of those protected accessories. Because of this when Mr. Kettler bought his suppressor, he fully believed he was acting in accordance with the law. The ATF disagreed, as did a jury, and then most recently the 10th Circuit Court, upholding Jeremy Kettler et. al.’s convictions under the National Firearms Act.

GOA’s Argument against the NFA

Mr. Kettler and the GOA make three arguments as to why his conviction should not be upheld. Firstly, they argue that the NFA “can no longer be justified as a valid exercise of Congress’ power to tax”. The NFA tax’s legality stems from a 1937 case called United States v. Sonzinsky. In the Sonzinsky case, the Supreme Court upheld the NFA tax as constitutional, despite the burden it presented to otherwise legal activity. In the petition, attorney Joseph W. Miller has argued that the Sonzinsky case is outdated, and needs to be re-evaluated. In addition, Mr. Miller makes specific mention of the undue burden that portions of the NFA place on gun owners, and argues for their unconstitutionality.

Secondly, the GOA argues that the 10th Circuit misinterpreted DC v. Heller. The 10th Circuit argued that the Heller decision only applied to bearable arms and that suppressors were accessories, not arms, and thus not protected by the 2nd Amendment. Because of the wide availability of suppressors as well as their status under Federal law, the GOA is arguing that suppressors constitute bearable arms, and are therefore protected under the 2nd Amendment.

Thirdly, the GOA argues that previous case law banning taxes on certain constitutional rights should apply to the 2nd Amendment. Their argument is that any tax on a protected right like speech, religion, or the right to keep and bear arms, is unconstitutional and that the NFA is such a tax.

So whY does this matter?

Until the Supreme Court grants a writ of certiorari, or until they agree to hear the case, it matters only a little. Unfortunately, the Supreme Court has shied away from taking controversial 2nd Amendment cases recently. Justice Thomas famously called it the Court’s “constitutional orphan” in a dissent from February 2018 for that reason. However, the landscape of the court has shifted in recent years, with the confirmations of Justices Gorsuch and Kavanaugh in 2017 and 2018 respectively. Hopefully, these three Justices will sway a fourth and agree to hear the case.

The original GOA statement can be found here, and the petition itself can be found here.

Sources:

“2 Kansas Men Spared Prison In Prosecution Over State Gun Law”. The Washington Times. Accessed January 15, 2019. https://www.washingtontimes.com/news/2017/feb/6/2-kansas-men-spared-prison-in-prosecution-over-sta/.

“Jeremy Kettler v. United States of America, On Petition for Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit.” GunOwners.org. Accessed January 15, 2019. https://gunowners.org/images/Kettler-Petition-for-Certiorari.pdf

“Thomas, J., dissenting. Jeff Silvester, et al. v. Xavier Becerra, Attorney General of California. On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit.” Supremecourt.Gov. Accessed January 15, 2019. https://www.supremecourt.gov/opinions/17pdf/17-342_4hd5.pdf.