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Judge: Federal firearms regulations trump Kansas gun law

Renegadez

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Lees Summit
Source Credit: Lawernece Ks. Journal http://www2.ljworld.com/news/2017/feb/01/judge-federal-firearms-regulations-trump-kansas-gu/

Wichita — A federal judge on Tuesday rejected arguments that a Kansas law can shield from federal prosecution anyone owning firearms made, sold and kept in the state — a ruling that casts doubt on the legality of similar laws passed in nine states across the nation.

The decision handed down by U.S. District Judge J. Thomas Marten allows federal firearms charges against Shane Cox and Jeremy Kettler to stand. The ruling clears the way for their sentencing on Monday.

Jurors in November returned eight guilty verdicts against Cox, the owner of Tough Guys gun store in Chanute, under the National Firearms Act for illegally making and marketing unregistered firearms, including a short-barreled rifle and gun silencers. Kettler was found guilty on one count of possession of an unregistered silencer.

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. Kansas modeled its law on a Montana law that an appeals court has found to be invalid, according to court filings.

Similar firearm nullification laws have been signed into law in nine states. In addition to Montana and Kansas, other states having them include Alaska, Arizona, Idaho, South Dakota, Tennessee, Utah and Wyoming, according to Everytown For Gun Safety, which advocates common-sense gun control laws.

Noting the significant interest the case against Cox and Kettler has generated in Kansas and beyond, Marten wrote in his 13-page decision that he is bound to uphold the U.S. Constitution and laws as interpreted by the U.S. Supreme Court and the 10th Circuit Court of Appeals. The judge then proceeded to cite those earlier rulings in rejecting every constitutional argument raised by the defense in the Kansas gun case.

"As a district court judge, I am not empowered to do what I think is most fair — I am bound to follow the law," Marten wrote.

Defense attorneys argued that the National Firearms Act — a part of the Internal Revenue code enacted under Congress' power to levy taxes — is unconstitutional because it amounts to "regulatory punishment" rather than imposition of a valid federal tax. They also contended that the federal law violated the Second Amendment as well as Tenth Amendment state rights protections of the U.S. Constitution.

But Marten was unpersuaded, noting that the nation's highest court ruled 80 years ago that the National Firearms Act is valid exercise of Congressional taxing power. As such, it supersedes a state law, he said. Marten also rejected the Second Amendment arguments raised.

Kettler's attorney, Ian Clark, separately asked the court for leniency at sentencing, calling his client a good man "caught in the crossfire of a political strong arm contest." The two men, like many other Kansans, were under the mistaken belief that the Kansas Second Amendment Protection Act was valid and protected them from federal prosecution.

"Now that this prosecution has taken place and received fairly wide media attention, any need for deterrence has been satisfied simply by making the community aware that the federal government will prosecute possession of firearm accessories like these regardless of the Kansas law," Clark said.
 

Maverick9

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Interesting. One can't help but feel 'sympathy' for these men caught in a cross-fire, but it strains credulity that they had a 'mistaken' belief. It makes more sense that they were flaunting and exploiting something they thought would fly as a 'loophole'.

They got caught.

Does seem like a good idea to apply leniency, but they knew that this had been challenged and lost.

Hopefully, they can delay events until the current appointee can issue new instructions. IANAL, but I believe it will at least be vetted as an 'opinion' as we move to get rid of this tax stamp thing and let people practice their hobby without incurring hearing loss. The justice department and the legislature should be ashamed of themselves for allowing this to happen simply because they watched too much television.
 

color of law

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And let's not forget that the US Supreme Court decision in Wickard v. Filburn states that the Federal government can regulate anything and everything they choose to regulate under the Interstate Commerce Clause, even if what is being regulated is confined to one state only. The reasoning is if enough people consumed or used the subject in question (let's say guns made and used in a single state) that it would affect interstate commerce and, therefore, the Federal government has the authority to regulate it.
This is why we need a conservative supreme court. Judge Scalia was trying to shove the commerce clause genie back into the bottle. Hopefully Trump will get the conservative court we need to accomplish this.
 

Renegadez

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I believe before I made a business move like this I would certainly have consulted rigorously with an expert attorney and i may have waited for someone else to try and become the test case to see the actual results of the law upheld. This now makes me question State conceal / open carry laws in KS without any type of licensing.
 

OC for ME

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I believe before I made a business move like this I would certainly have consulted rigorously with an expert attorney and i may have waited for someone else to try and become the test case to see the actual results of the law upheld. This now makes me question State conceal / open carry laws in KS without any type of licensing.
Why are you concerned for OC/CC laws in Kansas? To my knowledge the feds have no say in the matter in KS , MO, or any other state.
 

Renegadez

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I have concern again the law the Feds shutdown was a Kansas law so it would not surprise that the feds can / could squash any other firearms law at this distance. hence concern.
 
Last edited:

solus

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here nc
FEBRUARY 6, 2017 2:27 PM
A federal judge spared from prison two Kansas men convicted of federal firearms violations after taking into account Monday their mistaken belief that a Kansas law can shield from federal prosecution anyone owning firearms made, sold and kept in the state.
The sentence handed down by U.S. District Judge J. Thomas Marten still leaves intact the federal felony convictions against Shane Cox and Jeremy Kettler, both of Chanute, Kansas. Cox, 45, was given two years of supervised probation, and Kettler, 28, got one year of supervised probation.

As convicted felons, neither man is allowed to own or possess a firearm.


http://www.mcclatchydc.com/news/politics-government/national-politics/article131034284.html

ipse
 

OC for ME

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White Oak Plantation
I have concern again the law the Feds shutdown was a Kansas law so it would not surprise that the feds can / could squash any other firearms law at this distance. hence concern.
Understood.

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. Kansas modeled its law on a Montana law that an appeals court has found to be invalid, according to court filings.
A little due diligence and a chat with a attorney would likely have mitigated any legal entanglements.
 

VinnAY

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May 17, 2012
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Platte City, MO
I continue to believe that these laws are merely symbolic, they don't mean anything, as demonstrated here. The Fed can regulate interstate commerce and I think therein lies the trap, if you will. As soon as you bring one piece or part across state lines and assemble it, you're Federally F'ed. There's not one firearm that you could construct that is totally sourced within the state, all the parts, the pieces, makes no matter that you totally assemble it within the state. The point is is that you got the parts for it, from other states and thus = you're breaking the law.
 

color of law

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FEBRUARY 6, 2017 2:27 PM
A federal judge spared from prison two Kansas men convicted of federal firearms violations after taking into account Monday their mistaken belief that a Kansas law can shield from federal prosecution anyone owning firearms made, sold and kept in the state.
The sentence handed down by U.S. District Judge J. Thomas Marten still leaves intact the federal felony convictions against Shane Cox and Jeremy Kettler, both of Chanute, Kansas. Cox, 45, was given two years of supervised probation, and Kettler, 28, got one year of supervised probation.

As convicted felons, neither man is allowed to own or possess a firearm.


http://www.mcclatchydc.com/news/politics-government/national-politics/article131034284.html

ipse
Need a petition sent to Trump pardoning these two.
 
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