The Death Of Federal Gun Law Nullification In Kansas
BY Herschel Smith
7 years, 10 months ago
KTVH:
WICHITA, Kan. (AP) — 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.
This has been a horrible disaster for not only the defendants but for the concept of nullification generally. As we’ve discussed before, state legislators who make nullification laws for the purpose of making a statement of protest before the voters are cowards and are doing no service to anyone except themselves.
Second, the jury had their turn at the wheel as well. Apparently, they weren’t ready to see the states put the federal government in its place. But the ideas that this tax would have ever occurred, or that the federal government had the right to legislate anything concerning firearms would have been considered abominable 150 years ago. Unfortunately, there are too many collectivists among us today to trust that jury nullification would be an effective remedy against federal power. Again. Consider this. A jury of their peers had a shot at this and refused to do anything about it other than kowtow to the federal government.
Finally, the federal judge found that they broke federal laws. What else do you expect a federal judge to do? For state lawmakers to have any effect with these laws, much more needs to be done. An education needs to take place with the people, and laws need to be enacted that essentially prevents federal agents from doing the job of arresting people like the defendants. Throw a few fedgov agents in the state penitentiary with the general prison population for attempting to arrest the defendants, and you might have a different outcome.
Finally, the state police would have to be on board and ready to conduct whatever operations the governor needs in order to prevent federal policing in this matter, up to and including things like imprisoning federal agents (such as the IRS) if the fedgov attempted to use those employees as punitive agents. Of course, from here it could go to withholding federal education funds, the state withholding taxes to the fedgov, and on and on it escalates.
Like I said to state lawmakers, unless you’re serious about nullification, don’t bother with the drama shows. You’re just a preening coward.
On February 2, 2017 at 3:39 am, Pat Hines said:
The Supremacy Clause only applies to the enumerated powers granted the US government. The Second Amendment expressly forbids ANY power to exert authority over weapons, including firearms, therefore the US government’s court had no standing to rule in this case.
Sadly, the defendant apparently surrendered to the US government, once they had him in chains, there was little he could do.
The government of Kansas should have protected him from the US government via force of arms if necessary.
On February 2, 2017 at 7:42 am, Frank Clarke said:
I crack enamel off my teeth every time I read something like “…a machine gun made in the State of Wheresoever and that has not traveled in interstate commerce cannot be regulated by the Federal Government under the interstate commerce clause.”
First the I/C clause was intended to grant Congress the power to prevent STATES interfering in the free transfer of value, not persons actually transferring value.
Second, it is a fundamental principle of jurisprudence that later law trumps earlier law. if the I/C clause ever gave Congress any power over firearms, the Second Amendment revoked that grant.
Any lawsuit over such issues that doesn’t take that tack is doomed. If the –federal– judge rejects that argument, that federal judge needs to be arrested by state authorities and charged with malfeasance. As you said, if states aren’t willing to go that far, they shouldn’t start down that path.
On February 2, 2017 at 12:00 pm, Fred said:
Pat is correct and, this is simply a further refutation of the commerce clause as it was written and it’s plain meaning is understood. The federal government had zero authority given it by the states to regulate intrastate commerce. The fedgov has flipped the commerce clause upside down by using the supremacy clause and now claims to own authority over every single tiny little private transaction on the entire face of the earth conducted by an American. Maybe the anarchists are only half wrong.
On February 2, 2017 at 12:07 pm, Duke Norfolk said:
Indeed, they were called on their empty bluff. And the poor saps that unwisely counted on the governor, etc. to go to bat for them are screwed. That was a baaaaad call.