Misguided ‘Second Amendment Protection Acts’ Have the Opposite Effect of Their Intent

Last week, the Supreme Court declined to review the convic­tions of Shane Cox and Jeremy Kettler, who were found guilty of viol­at­ing federal restric­tions on the posses­sion and trans­fer of silen­cers and short-barrel rifles. Media cover­age focused on a purely Second Amend­ment angle — whether silen­cers are protec­ted by the right to keep and bear arms — over­look­ing another signi­fic­ant issue: the two men were convicted despite Kansas’s attempt to nullify federal fire­arms law through its Second Amend­ment Protec­tion Act (SAPA). The total fail­ure of the SAPA defense, as well as the devast­at­ing reper­cus­sions for Cox and Kettler, should serve as a warn­ing to each state that has passed or is consid­er­ing such a meas­ure.

In 2013, Kansas enacted the law, which declared it “unlaw­ful” for “the govern­ment of the United States . . . to enforce or attempt to enforce any act . . . of the govern­ment of the United States upon a fire­arm, a fire­arm access­ory, or ammuni­tion that is owned or manu­fac­tured . . . in the state of Kansas and that remains within [its] borders.” After read­ing the SAPA, Cox, who owns a milit­ary surplus store, decided to make a short-barreled rifle as well as manu­fac­ture and sell silen­cers without abid­ing by the regis­tra­tion require­ments in the National Fire­arm Act (NFA). Cox was so sure the SAPA insu­lated him from the NFA that he displayed the SAPA’s text along­side the silen­cers in his store. Kettler purchased one of Cox’s silen­cers and, because of the SAPA, neglected to pay a tax required by the NFA. Federal prosec­utors charged both men with felon­ies.

At trial, Cox and Kettler argued that they relied on the SAPA’s asser­tion that it over­rode federal laws like the NFA. Unfor­tu­nately for the defend­ants, the federal judges who heard their case and subsequent appeal rejec­ted that argu­ment out-of-hand. After all, the Consti­tu­tion provides that federal law is super­ior to state law, which means that Kansas cannot willynilly create defenses to federal crimes. Even if Kansas legis­lat­ors believed that the NFA was some­how uncon­sti­tu­tional, federal judges, not state legis­lat­ors, have the final say. In fact, the Supreme Court affirmed the consti­tu­tion­al­ity of the NFA taxing scheme in 1937 and reaf­firmed that preced­ent in 2012. Finally, even though Cox and Kettler appear to be unwit­ting victims of an irre­spons­ible and mislead­ing state repres­ent­a­tion, that does not exempt them from the general prin­ciple that a mistaken under­stand­ing of federal law is no defense.

The irony of Kansas’s effort to affirm Second Amend­ment rights through a SAPA is that now Cox and Kettler are barred from lawfully possess­ing a fire­arm. Under a differ­ent federal law, both men are exposed to up to 10 years impris­on­ment if they possess a gun. To get out from under that prohib­i­tion, Cox and Kettler would need to be pardoned by the pres­id­ent. So far as Cox and Kettler are concerned, the SAPA is more aptly called the Second Amend­ment Surrender Act.

Kansas is not alone in passing mislead­ing legis­la­tion in the name of the Second Amend­ment. Alaska, Arizona, Idaho, South Dakota, Tennessee, and Wyom­ing currently have a SAPA on the books. Missouri, North Dakota, and Texas intro­duced SAPA bills this year. The bills follow a similar pattern. For example, Missour­i’s proposed SAPA boldly declares certain federal fire­arm laws to be “null and void and of no effect” within the state. Like the SAPA that failed to protect Cox and Kettler, it takes direct aim at federal fire­arm restric­tions like those asso­ci­ated with sawed-off shot­guns, machine guns, and silen­cers.

And it is not just state legis­lat­ors who are mislead­ing constitu­ents about the enforce­ab­il­ity of fire­arm regu­la­tions. Recently, a grow­ing number of muni­cip­al­it­ies have passed ordin­ances empower­ing local sher­iffs to declare state and federal gun laws uncon­sti­tu­tional and unen­force­able in their juris­di­citions. These muni­cipal ordin­ances could misguide citizens into the same trap as Cox and Kettler, at not just the federal level but the state level, as well.

It is no secret that show­ing support for gun rights can be polit­ic­ally useful in much of the coun­try. But as Cox and Kettler’s case shows, SAPAs don’t actu­ally protect anyone’s right to keep and bear arms, while expos­ing hapless gun owners to crim­inal prosec­u­tion. Elec­ted offi­cials should find a better way to express their gun-rights bona fides than risk­ing the very same rights they claim to endorse.

(Image: jonath­an­parry)