Kansas gun case may preserve 2nd Amendment for a generation or more

After Kansas passed its Second Amendment Protection Act in 2013, entrepreneur Shane Cox began manufacturing and selling homemade firearms and silencers stamped “Made in Kansas.”


The Kansas Second Amendment Protection Act, which passed in 2013, says firearms, accessories and ammunition manufactured and kept within the borders of Kansas are exempt from federal gun control laws. By selling them to Kansans, Cox figured he could get around the National Firearms Act of 1934. He also collected state sales taxes on each sale.


But the federal authoritarians were not amused. And they considered the state law as irrelevant – then-Attorney General Eric Holder told the state as much after the bill passed. So they charged Cox with manufacture, possession and sale of unregistered firearms and silencers. They also charged one of Cox’s customers, Jeremy Kettler, for possession of an unregistered silencer.


The two were convicted in federal court last November. In February, during their sentencing hearing, U.S. District Judge J. Thomas Marten spared the men from prison but sentenced them to supervised probation; Cox for two years and Kettler for one. The judge told the men that while the state law was not applicable in their case, he was taking into consideration their confusion that it might be in handing down the sentence.


Kettler plans to appeal the conviction. If he does, and if the appeal makes it to the Supreme Court in a couple of years, it will be first serious challenge to the National Firearms Act of 1934 since U.S. v. Miller. But Miller wasn’t really a serious challenge because he didn’t present a defense before the Supreme Court.


Miller, a bank robber, was charged with violation of the NFA for possessing a sawed off shotgun without the proper license. He filed a demurrer challenging the applicable section of the NFA, and District Judge Heartsill Ragon accepted the claim and dismissed the indictment, stating, “The court is of the opinion that this section is invalid in that it violates the Second Amendment to the Constitution…”


The case was appealed to the SCOTUS, but neither Miller nor his counsel showed up. The Supreme Court reversed the district court, holding that the 2nd Amendment does not guarantee an individual the right to keep and bear a sawed-off double barrel shotgun. With Justice James Clark McReynolds writing for the majority, the Court reasoned that because the possession of a sawed-off double barrel shotgun does not have a reasonable relationship to the preservation or efficiency of a well-regulated militia, the 2nd Amendment does not protect the possession of such an instrument.


Miller has been cited as precedent in a number of 2nd Amendment cases including most recently in McDonald v. City of Chicago and District of Columbia v. Heller.


If it makes it to the SCOTUS, the decision will likely end once and for all the debate about whether the federal government has the authority to pass laws infringing gun ownership.


Of course, students of history know that the Founders intended for Americans to be armed. They knew that gun laws have the sole purpose of enslaving the populace. Let them explain:


“Are we at last brought to such humiliating and debasing degradation, that we cannot be trusted with arms for our defense? Where is the difference between having our arms in possession and under our direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?” — Patrick Henry


“O sir, we should have fine times, indeed, if, to punish tyrants, it were only sufficient to assemble the people! Your arms, wherewith you could defend yourselves, are gone; and you have no longer an aristocratical, no longer a democratical spirit. Did you ever read of any revolution in a nation, brought about by the punishment of those in power, inflicted by those who had no power at all?” Henry said during the Virgina Ratifying Convention.


“The supposed quietude of a good man allures the ruffian; while on the other hand, arms like laws discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside…Horrid mischief would ensue were one half the world deprived of the use of them…” — Thomas Paine


“The Constitution shall never be construed … to prevent the people of the United States who are peaceable citizens from keeping their own arms.” — Samuel Adams


“Americans have the right and advantage of being armed; unlike the citizens of other countries whose governments are afraid to trust the people with arms.” — The Federalist, No. 46, James Madison


“Firearms stand next in importance to the Constitution itself. They are the American people’s liberty teeth and keystone under independence … From the hour the Pilgrims landed, to the present day, events, occurrences, and tendencies prove that to insure peace, security and happiness, the rifle and pistol are equally indispensable . . . the very atmosphere of firearms everywhere restrains evil interference – they deserve a place of honor with all that is good” — George Washington


“Laws that forbid the carrying of arms . . . disarm only those who are neither inclined nor determined to commit crimes . . . . Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.” — Cesare Beccaria On Crimes and Punishment, quoted by Thomas Jefferson in Commonplace Book


“A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be your constant companion of your walks.” — Jefferson


“One loves to possess arms, though they hope never to have occasion for them.” — Jefferson


“No freeman shall be debarred the use of arms [within his own lands].”– Jefferson


“[T]he people are not to be disarmed of their weapons. They are left in full possession of them.” — Zachariah Johnson, The Virginia Ratifying Convention


“[W]hen the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, –who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them…” — George Mason, The Virginia Ratifying Convention.


“Who are the militia? Are they not ourselves? It is feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American . . . . [T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.” — Tench Coxe


“What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty…. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.” – Elbridge Gerry


In his An Examination of the Leading Principles of the Federal Constitution, 1787, Noah Webster wrote: “Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom of Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.”


In a speech at the Virginia Ratifying Convention, George Mason said: “I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them.”


“A militia when properly formed are in fact the people themselves … and include… all men capable of bearing arms. … The mind that aims at a select militia, must be influenced by a truly anti-republican principle,” wrote Richard Lee as The Federal Farmer.


“[W]hereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it,” Lee also wrote.


It’s clear the Founders intended that everyone be armed — not just for hunting or for self-defense, which were givens — but to protect themselves from tyranny.


If President Donald Trump is able to appoint a constitutional originalist or two to the Supreme Court before Kettler’s case makes it that far, the 2nd Amendment may be safe for a generation at least.


But it will likely also open up a new can of worms: A discussion over whether the 2nd Amendment bars states from regulating gun ownership.



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