The Tennessee Firearms Association has joined in an “amicus brief”, commonly called a “friend of the court” brief, in a federal case brought by Jeremy Kettler and supported by the Gun Owners of America, through its legal arm, the Gun Owners Foundation, which seeks a ruling by the United States Supreme Court that the National Firearms Act (“NFA”) is now unconstitutional as a federal law enforcement scheme and not a true or legitmate “tax”.

The Tennessee Firearms Association, representing the interests of its members, joined in on a supportive brief asking the United States Supreme Court to take up the matter to declare the NFA unconstitutional. Other organizations supporting the amicus filing are Downsize DC Foundation, the Heller Foundation and DownsizeDC.org all of which are nonprofits that support and defend the 2nd Amendment.

The case involved federal charges against Jeremy Kettler, a disable veteran who had service related hearing damage. Mr. Kettler was living in Kansas which has a “Second Amendment Protection Act” similar to one passed in 2009 in Tennessee. Those acts provide that firearms and accessories made solely in the state in which they are sold are not subject to federal jurisdiction, including the National Firearms Act. Mr. Kettler, in reliance on state law, purchased a suppressor without paying the federal tax required by the NFA. The federal government prosecuted and Mr. Kettler was convicted of possessing an unregistered (that is, untaxed) suppressor and sentence to one year on probation.

The petitions argue that any tax which seeks to restrict the exercise of a right protected by the United States Constitution is illegal on its face. The petitions further argue that the NFA is not a true revenue tax at all but that it is merely a federal gun control measure masquerading as a tax. The petitions point out that Congress lacks the authority to implement or continue a general criminal gun control scheme which harshly violators with severe criminal fines and long federal sentences that are unmatched by the consequences attaching to any other true revenue tax.

The petition seeking review notes that this “tax” is the only federal tax that is not collected by the Internal Revenue Service. It is instead collected only by the Justice Department. It is not therefore a “revenue” tax in any real or imagined sense of the word. In 1922, the Supreme Court struck down a child labor “tax” because it was really an enforcement mechanism that was used by the Department of Labor to enforce child labor laws and not a true tax.

The petition relies on prior United States Supreme Court decisions which struck down taxes on other rights protected by the United States Constitution and asked that the Court extend the reasoning of those cases, the oldest of which was rendered two centuries ago, to modern federal firearms regulatory schemes which are masquerading as taxes – taxes which never collect enough in revenue to fund the massive regulatory and criminal enforcement efforts to infringe rights protected by the Second Amendment.

If the United States Supreme Court accepts the case and strikes down the NFA’s regulatory scheme, then it is possible that suppressors could see significantly increased use on gun ranges and with hunters. The State of Tennessee deregulated suppressors entirely at the state level in recent years which is a signal that the State realized that there was no reason for it to regulate these firearms accessories which clearly have desired positive benefits for shooters.

There is no indication that the State of Tennessee would be filing any amicus pleadings supporting the petition despite the fact that it has enacted the Tennessee Firearms Freedom Act of 2009 and the fact that it has deregulated suppressors for civilian ownership.