Tenth Circuit Cans Unregistered Silencer Sales, Suppresses State Law
On October 16, 2018, three judges of the Tenth Circuit ruled on an appeal from the District of Kansas in a case called United States v. Cox. To make this article less boring and easier to read for normal people, I have omitted the legal Bluebook citations after every quote. All indented paragraphs are quotes from the Tenth Circuit decision above. Other cases are quoted or cited as appropriate to the flow of an Internet article.
The case centered on the actions of two people, Shane Cox and Jeremy Kettler, under a state law explicitly exempting the manufacture of any personal firearm, firearm accessory, or ammunition manufactured, owned, and kept inside the border of just one state. Although such laws percolated across the country roughly five to ten years ago, the particular law in question was passed by Kansas in 2014 and titled Second Amendment Protection Act (SAPA).
When these laws were passed, the big question in my mind – and I’m sure others had the same thought as well – was not whether the federal government would choose to stomp on people who made unregistered silencers, SBRs, and machine guns while complying with these state laws, but how hard they would choose to stomp. Cox and Kettler, perhaps unintentionally, set out to answer this question.
The Feds Don’t Like Their Authoritah Challenged
In a nutshell, Cox and Kettler’s argument is that because their actions were protected under state law, they should not be convicted under federal law. However, federal laws supersede state laws when the two are in conflict. For an illustration of this point, see state legalization of marijuana laws and Attorney General Jeff Sessions’ insistence that he will enforce federal marijuana laws even if the states allow possession and use of marijuana. The principles are nearly identical.
In the event you missed it, this case was argued in federal court (because the Feds brought charges under Federal law). Federal courts have traditionally taken a dim view of the idea that federal laws shouldn’t be enforced because state laws are in conflict. Such was the case here:
“Here, though, allowing state legislatures to estop the federal government from prosecuting its laws would upset the balance of powers between states and the federal government and contravene the Supremacy Clause. See U.S. Const. art. VI. We can’t countenance that result, so we decline to adopt Cox’s proposed defense.”
As far as the claim that the federal government doesn’t have the power to regulate items which don’t move in interstate commerce – that is, never cross state lines – the court dispenses with that argument here:
“These provisions protect only homegrown, local firearms, so the Kansas legislature didn’t need to utter the magic words, “Commerce Clause,” to make clear its intent to preserve constitutional limits on the federal government’s power over intrastate activity. Kansas wasn’t considering, and didn’t purport to limit, Congress’s taxing-clause authority. Any other interpretation ignores the SAPA’s emphasis on the local nature of the firearms’ (and accessories’) manufacture and ownership.”
On a related note, it also appears to have originally been part of the Government’s argument (at the District Court level) that Cox bought the titanium tubing used in the manufacture of the silencers from Canada, and thus they moved in interstate commerce. Interstate commerce wasn’t an issue raised at the Circuit Court level.
What Did Cox and Kettler Do?
First, we must understand what these men did. Shane Cox ran a surplus store called Tough Guys in Chanute, Kansas. Cox had posted a copy of the then-new Kansas SAPA law in his store and was apparently selling silencers of his own manufacture along with making destructive devices and short barreled rifles, though it does not appear to be alleged that he sold anything other than the silencers. Jeremy Kettler, an Army veteran, saw the law posted, bought one of the silencers, and praised it in a Facebook post.
Neither this nor anything else in this post is legal advice. However, don’t break federal law. If you do break federal law, don’t brag about it on social media. I feel this is a good standard for life in general.
Cox and Kettler were charged with violating, you guessed it, the National Firearms Act of 1934. The NFA prohibits manufacturing, selling, possessing, and maybe even thinking unapproved thoughts about possessing silencers and short barreled rifles and so on unless they are registered with the ATF and a $200 transfer tax is paid per device.
Cox and Kettler argued that the NFA didn’t apply because the SAPA protected their activities.
“Cox argued that because of the SAPA, enforcing the NFA against him would exceed the federal government’s constitutional authority and usurp “powers reserved to the States” in violation of the Tenth Amendment. Cox R. vol. 1 at 39. Kettler, in turn, asserted entrapment by estoppel. By enacting the SAPA, argued Kettler, the Kansas legislature had “specifically” told him that federal laws didn’t apply to his Kansas-made and -owned suppressor, and his reasonable reliance on Kansas’s promise rendered the federal prosecution unjust.”
The District Court rejected those arguments, saying that the NFA was within Congress’s powers and that Kansas officials don’t have powers related to federal laws such as the NFA. This is United States v. Cox (Cox I) .
Kettler and Cox then tried to point out that because the $200 tax has not changed in value since 1934, the tax no longer produces revenue for the government and prior court rulings citing such revenue as a reason to uphold the NFA no longer apply. Instead, they argued, the NFA tax had become “regulatory punishment” which usurped the powers reserved to the states under the Tenth Amendment. This line of argument did not succeed. This is from United States v. Cox (Cox II).
The discussion of whether or not the NFA tax was a tax or a regulatory punishment was rather involved and it appears the defense staked most of their effort on this point, if the amount of ink devoted to it by the 10th Circuit is any indication. I am not going to discuss this portion in detail because I do not have the experience to dive deep into whether something is or is not a tax. Also, the defendants clearly argued this point thoroughly, and their arguments were not well received by the court; I don’t see what any analysis I could provide would add to the discussion.
The Court Ignored Physics
The panel of the 10th circuit seemingly relied heavily on Supreme Court precedent for this portion of their decision, most notably District of Columbia v. Heller. This was especially true in their conclusion that short-barreled rifles should not be protected by the Second Amendment. The Heller court, the 10th Circuit says, mentioned short-barreled shotguns as not being protected – that decision stems from another case called Miller, which should be properly covered in another article.
Here, the 10th circuit conflated short-barreled rifles and short-barreled shotguns, and Cox’s counsel, according to the court, “offered no meaningful distinction between the two.”
This might have been a good opportunity for change, because the 10th Circuit relied on quotes from other court decisions which concluded shortening a barrel results in a “heightened capability to cause damage.” United States v. Marzzarella.
Here the laws of man conflict with the laws of physics; shortening the barrel of a rifle necessarily reduces the velocity of the projectiles it fires, resulting in a reduced, not heightened, capability to cause damage. How would the court have ruled if it had been shown evidence that short barreled rifles have a reduced capacity to cause damage?
As we will see next, they most likely would have just invented a reason, without precedent, as to why short-barreled rifles should be banned.
The Court Ignored Federal Law
You see, the court made a critical error relating to silencers. While apparently ceding the fact that silencers are in common use, or at least not thoroughly challenging the claim, the 10th Circuit said that because silencers are not bearable arms, they are not protected by the Second Amendment.
“Even if silencers are commonly used by law-abiding citizens for lawful purposes, are they a type of instrument protected by the Second Amendment? According to Heller, “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms.” 554 U.S. at 582 (emphasis added). An instrument need not have existed at the time of the founding to fall within the amendment’s ambit, but it must fit the founding-era definition of an “Arm.” Id. at 581 (citing two dictionaries from the eighteenth, and one from the nineteenth, century). Then and now, that means, the Second Amendment covers “[w]eapons of offence, or armour of defence,” or “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” Id. at 581 (alteration in original) (citations omitted). A silencer is a firearm [*30] accessory; it’s not a weapon in itself (nor is it “armour of defence”). Accordingly, it can’t be a “bearable arm” protected by the Second Amendment.
Thus, because silencers are not “bearable arms,” they fall outside the Second Amendment’s guarantee.”
The 10th Circuit pulled this definition out of thin air. There are no federal cases or statutes to support this argument. There are, however, cases and statutes which appear to counter it. Consider that the National Firearms Act, the statute upon which conviction depended, explicitly defines silencers as firearms. “The term “firearm” means… any firearm muffler or firearm silencer…” 18 U.S.C. § 921(a)(3). See also Sig Sauer, Inc. v. Brandon (“The NFA defines a “firearm” to include certain guns and gun parts, including “silencers.”).
Are not all firearms, in a legal sense, weapons? If not, which other firearms are not weapons? Does their non-weapon status exclude them from laws against the carrying or storage of weapons?
As a final insult, the 10th Circuit acknowledges the NFA defining silencers as firearms in a footnote – footnote 10, to be exact – when discussing the dollar amount of the tax stamp, but this acknowledgement does not extend to the discussion of whether or not firearms are weapons or “bearable arms” above.” Indeed, the claim that silencers are “firearm accessories” on page 30 is in direct contradiction to the acknowledgement that they are “firearms” in footnote 10.
The Court Ignored Defendant’s Argument on This Point
When I first read this decision, I was under the impression that defendant’s counsel had made an insufficient argument on this point. I thought that perhaps if they had clearly stated to the court that federal law defined silencers as firearms, the court would have been forced to openly acknowledge the discrepancy between their line of thinking and the reality of federal law. I initially wrote, “I do not know if Cox’s counsel raised this point, but it would be much more difficult for the 10th Circuit to have avoided defining silencers as weapons if they had to first contend with federal law and case law defining silencers as firearms.”
Then I read their reply brief to the court. As I read it, I saw that I was wrong in my initial assumptions. Defendant’s counsel cogently made these arguments and highlighted the failure of the Government’s brief to address them.
This was somewhat shocking to me. Rather than acknowledge, consider, and disagree with the argument for rational reasons, the court simply ignored this entire portion of the defendants’ reply brief. I will assume this decision by the court was made because having to acknowledge defendants’ argument would have forced the court to acknowledge its correctness. In other words, neither the court nor the Government could come up with a rational response to the assertion that silencers were weapons in part because federal law defined them as firearms, so they simply chose to pretend this line of reasoning didn’t exist.
This Decision Opens the Floodgates for Irrational Gun Control
Taking this line of questioning to its logical end, only weapons are protected. Only frames and receivers can be considered weapons, if silencers are not considered weapons. Indeed, because pistol slides or rifle triggers or shotgun bolts are not by themselves weapons, but “firearm accessories,” only receivers and frames are protected by the Second Amendment. Even ammunition could be construed under the 10th Circuit’s decision as “not bearable arms” and thus not protected under the Second Amendment.
As I scrolled to the end of the document, though, I saw that the very short concurring opinion specifically addresses this point. Judge Hartz wrote,
“I join Judge Phillips’s opinion in full. I add this comment solely to caution against overreading our holding regarding silencers. In determining that silencers are not protected by the Second Amendment, we explain that they are not “bearable arms.”
We had no occasion to consider whether items that are not themselves bearable arms but are necessary to the operation of a firearm (think ammunition) are also protected.”
In other words, “hey, I know that part of the decision busts the door to banning just about anything wide open, but we didn’t mean it that way – except we did, because what Judge Phillips wrote is the only binding part since he didn’t include this disclaimer in his opinion. Good luck!”
You see, a concurring opinion is a vote for the majority opinion expressed for slightly different reasons. However, because it’s not part of the majority opinion, it’s not “binding” and thus no lower court in the Tenth Circuit would have to follow Judge Hartz’s opinion if it didn’t want to.
At the same time, the decision inadvertently leaves open the possibility that certain silencers would be protected under the Second Amendment. Consider, for example, an integrally suppressed firearm, or in the alternative a firearm which will not cycle without a silencer attached to the muzzle. Certainly, this would be, to varying degrees, “necessary to the operation of (the) firearm,” but this mess of a decision leaves us without a clear answer as to the legality of the suppressor/barrel device.
Is it not necessary to the operation of the firearm? Well, without the barrel, you’re not going to fire a bullet very far. Is it not a weapon? Well, we know it’s a firearm under federal law, and how is something a firearm but not a weapon? If it’s a firearm under federal law, and firearms are weapons, and it’s necessary to the operation of the firearm, and it’s something in common use, how is it not protected by the Second Amendment?
If there is a silver lining in this case, it is that Cox and Kettler received only probation from the District Court – Cox two years and Kettler one year. Avoiding prison time is good, but small comfort considering that both are now prohibited possessors.
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