The Firing Line Forums

Go Back   The Firing Line Forums > The Conference Center > Law and Civil Rights

Reply
 
Thread Tools Search this Thread
Old April 26, 2017, 07:39 PM   #1
steve4102
Senior Member
 
Join Date: December 23, 2005
Location: Minnesota
Posts: 2,871
Second Amendment Protection Act

This thread was closed as a drive-by and I thought it might be interesting to discuss it.

https://thefiringline.com/forums/sho...d.php?t=586289

The article states that the case of Cox and Kettler could shatter Federal Gun control laws if it made it way all the way to the Supreme Court.

I don't see it, in fact I don't think this case has anything to do with the Second Amendment at all.

Back in 2013 Kansas passed legislation called the Second Amendment Protection Act. It was another bogus feel good law claiming that if a firearm was made in Kansas, stamped "Made in Kansas" and stayed in Kansas, then this law would prevent Federal Prosecution.

Mr Cox took the State of Kansas at their word and manufactured firearms and silencers without a license and Stamped them according to state law. Didn't work he got caught and was charged with felonies.

Now this Bearing Arms web site thinks that this is the biggest case since Heller and it will bring Federal firearms legislation to an end.

The way I see it, this has nothing to do with firearms or the Second Amendment and everything to do with interstate commerce and the Supremacy Clause? No?

Here is another article on Cox and Kettler and how they got themselves in trouble.

https://www.thetrace.org/2016/12/kan...act-silencers/

Note this all happened last year.

Last edited by steve4102; April 26, 2017 at 07:48 PM.
steve4102 is offline  
Old April 26, 2017, 07:46 PM   #2
steve4102
Senior Member
 
Join Date: December 23, 2005
Location: Minnesota
Posts: 2,871
Here is a letter from the AG of Kansas to AG Nominee Sessions on Cox and Kettler.

https://ag.ks.gov/docs/default-sourc...e.pdf?sfvrsn=8
steve4102 is offline  
Old April 26, 2017, 08:24 PM   #3
steve4102
Senior Member
 
Join Date: December 23, 2005
Location: Minnesota
Posts: 2,871
Judge Martin's 13 page decision found here.

http://14544-presscdn-0-64.pagely.ne...dge-Ruling.pdf

and this.

https://www.plainsite.org/dockets/2n...a-v-cox-et-al/
steve4102 is offline  
Old April 26, 2017, 09:01 PM   #4
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 8,914
Quote:
Originally Posted by steve4102
...Back in 2013 Kansas passed legislation called the Second Amendment Protection Act. It was another bogus feel good law claiming that if a firearm was made in Kansas, stamped "Made in Kansas" and stayed in Kansas, then this law would prevent Federal Prosecution.

Mr Cox took the State of Kansas at their word and manufactured firearms and silencers without a license and Stamped them according to state law. Didn't work he got caught and was charged with felonies.....
Yes, this is yet another example of a state "firearm freedom" law failing to live up to promises.

State nullification of federal law is a chimera.
  1. The Founding Fathers provided in the Constitution (Article VI, Clause 2, emphasis added):
    Quote:
    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
  2. There's some 200 years of Supreme Court precedent rejecting State nullification of federal law:

    • United States v. Peters, 9 U.S. (5 Cranch) 115 (1809)

    • Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816)

    • Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)

    • McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)

    • Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824)

    • Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)

    • Prigg v. Pennsylvania, 41 U.S. 539 (1842)

    • Ableman v. Booth, 62 U.S. 506 (1859)

    • Cooper v. Aaron, 358 U.S. 1 (1958)

    • Bush v. Orleans Parish School Board, 188 F. Supp. 916 (E.D. La. 1960), aff'd 364 U.S. 500 (1960).

  3. The Ninth Circuit has specifically ruled against Montana in a "firearm freedom law" case, Montana Shooting Sports Association v. Holder, No. 10-36094, (9th Cir., 2013).

  4. A State may decide not to enforce federal law or assist with the furtherance of federal policy (Printz v. U.S., 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997)), but a State may not nullify federal law; and the federal agents may still enforce federal law without a State's help.

  5. See also Willis v. Winters, 253 P.3d 1058 (Or., 2011) in which the Oregon Supreme Court ruled that a Sheriff was required under Oregon law to issue a concealed handgun license to Cynthia Willis even though she was a medical marijuana user. But the Oregon Supreme Court specifically noted (at pp. 1065 - 1066, emphasis added):
    Quote:
    ...Neither is the statute [the Oregon CHL law] an obstacle to Congress's purposes in the sense that it interferes with the ability of the federal government to enforce the policy that the Gun Control Act expresses. A marijuana user's possession of a CHL may exempt him or her from prosecution or arrest under ORS 166.250(1)(a) and (b), but it does not in any way preclude full enforcement of the federal law by federal law enforcement officials...

Cox and Kettler were sentenced in February. They were fortunate in that they were able to avoid prison, but they will each have to serve a period of probation.

It appears that Kettler has filed notice of appeal. Preliminary documents are showing up on PACER. The Tenth Circuit docket number is 17-3035. Notice of appeal was filed on 16 February 2017, and Kettler's opening brief is due 31 May 2017.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Frank Ettin is offline  
Old April 26, 2017, 09:36 PM   #5
FrankenMauser
Senior Member
 
Join Date: August 25, 2008
Location: 1B ID
Posts: 10,631
I don't think the SCOTUS would even take this case.
They've made their case(s ) about the commerce clause and preemption, and likely don't want to "waste" their time reiterating the same things.
__________________
Don't even try it. It's even worse than the internet would lead you to believe.
FrankenMauser is offline  
Old April 27, 2017, 05:54 PM   #6
Chris Karma
Member
 
Join Date: March 31, 2017
Location: Desert near PHX az
Posts: 16
Quote:
State nullification of federal law is a chimera.
I agree, but a state can shop the case to the ninth circuit, like what happened to Trump's travel ban.

I'm pretty sure the scotus will overturn the 9th like it almost always does.

didn't Montana or Wyoming do a similar "tenth amendment" gun law?
Chris Karma is offline  
Old April 27, 2017, 07:28 PM   #7
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 8,914
Quote:
Originally Posted by Chris Karma
I agree, but a state can shop the case to the ninth circuit,...
No, a State can't "shop" the case. It must bring the case in the Circuit in which the State is located.

Quote:
Originally Posted by Chris Karma
...didn't Montana or Wyoming do a similar "tenth amendment" gun law?
Both adopted such laws. The Montana law was litigated, and the Montana law got hammered by the Ninth Circuit, as I mentioned in post 4.

Quote:
Originally Posted by Chris Karma
...I'm pretty sure the scotus will overturn the 9th like it almost always does....
Almost isn't always, and it unlikely here.
  1. The Ninth Circuit's decision in Montana Shooting Sports was based on Supreme Court precedent, i. e., Gonzales v. Raich, 545 U.S. 1 (2005) in addition to a Ninth Circuit case, United States v. Stewart, 451 F.3d 1071 (9th Cir. 2006).

  2. That 2006 decision in Stewart was the result of a 2003 decision in that case being kicked back to the Ninth Circuit by the Supreme Court with instructions to reconsider the decision in light of Gonzales. So the Ninth Circuit has already taken instructions in this sort of case from the Supreme Court.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Frank Ettin is offline  
Old April 27, 2017, 07:45 PM   #8
WyMark
Senior Member
 
Join Date: January 10, 2011
Location: Wyoming
Posts: 509
Quote:
Originally Posted by Frank Ettin
Quote:
Montana or Wyoming
Both adopted such laws.
Incorrect.

In Wyoming the bill was introduced during the 2013 general session and passed in the House. It was passed out of Senate committee but was never considered for even a first reading in the full Senate.

I'd like the believe that even if it had passed the Senate our Governor, being a former US Attorney and not an idiot, would recognize the stupidity and unconstitutionality and veto it.
WyMark is online now  
Old April 27, 2017, 08:29 PM   #9
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 8,914
I stand corrected. I thought that Wyoming joined the throng. It's perhaps a good thing it did not.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Frank Ettin is offline  
Old April 27, 2017, 08:50 PM   #10
WyMark
Senior Member
 
Join Date: January 10, 2011
Location: Wyoming
Posts: 509
I think a very good thing. I'm willing to bet that if you compared the language of the Wyoming Firearm Protection Act to those in Montana, Kansas and every other state where it was introduced they would be essentially identical, from the same legislation bill mill.


The Wyoming Firearm Protection Act, as it was passed by the House:
http://legisweb.state.wy.us/2013/Engross/HB0104.pdf

And as originally introduced:
http://legisweb.state.wy.us/2013/Introduced/HB0104.pdf

The digest, showing failure to be considered by the Senate COW:
http://legisweb.state.wy.us/2013/Digest/HB0104.htm
WyMark is online now  
Old April 27, 2017, 09:03 PM   #11
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 8,914
These "firearm freedom" laws were kind of the flavor of the month for a while. Their popularity seems to have waned a bit.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Frank Ettin is offline  
Old April 28, 2017, 01:22 PM   #12
ShootistPRS
Senior Member
 
Join Date: January 3, 2017
Posts: 1,571
All these laws have as their basis the limitation of the federal interstate transportation of goods and services. This is the framework upon which some of the gun laws are enacted at the federal level. The laws based in interstate transport don't apply to intrastate manufacturing and sales.

I don't expect the state laws to be upheld by the circuit or supreme courts but I do believe the reasoning is sound.
ShootistPRS is offline  
Old April 28, 2017, 03:07 PM   #13
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 8,914
Quote:
Originally Posted by ShootistPRS
All these laws have as their basis the limitation of the federal interstate transportation of goods and services....
No. What the Constitution actually says is that Congress has the power to (Article I, Section 8, Clause 3):
Quote:
...regulate commerce with foreign nations, and among the several states, and with the Indian tribes;
Though our history the federal courts have had a myriad of opportunity to consider what the regulation of interstate commerce means, and they have viewed the power of Congress to be considerable broader than merely the limitation of the interstate transport of goods and services.

You and others might think the courts have taken thing too far, but what you think doesn't matter in real life (except insofar as your views might encourage you to participate in efforts to change current law).

Quote:
Originally Posted by ShootistPRS
...I don't expect the state laws to be upheld by the circuit or supreme courts but I do believe the reasoning is sound...
No, your reasoning is not sound since you admit that your reasoning won't be adopted to uphold these state laws. What decides whether one's reasoning on a legal issue is sound is whether it is useful for understanding what the courts will do.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Frank Ettin is offline  
Old April 28, 2017, 03:37 PM   #14
JoeSixpack
Senior Member
 
Join Date: April 12, 2017
Location: Ohio
Posts: 953
Is'nt this the same line of reasoning that allows Texas to continue to mfg incandescent bulbs after they was banned at the federal level?

They're not sold out of state.
Now I understand I just compared light bulbs to suppressors but that really should not matter legal if it holds up for 1 it should for the other.


at least that's my understanding correct me if im wrong.
JoeSixpack is offline  
Old April 28, 2017, 03:37 PM   #15
g.willikers
Senior Member
 
Join Date: September 28, 2008
Posts: 10,447
Quote:
You and others might think the courts have taken things too far, but what you think doesn't matter in real life
Laws only are obeyed when the citizens are in agreement.
Prohibition, for example, and the current drug situation.
Lots of circumstances come to mind.
Judges and courts are only part of the equation.
One would hope if/when the courts do go too far, the laws will indeed get changed.
Otherwise the rule of law fails us and lawlessness rules in its place.
What we think, and what we get our political representatives to think, matters very much.
__________________
Walt Kelly, alias Pogo, sez:
“Don't take life so serious, son, it ain't nohow permanent.”

Last edited by g.willikers; April 28, 2017 at 03:45 PM.
g.willikers is offline  
Old April 28, 2017, 06:56 PM   #16
ShootistPRS
Senior Member
 
Join Date: January 3, 2017
Posts: 1,571
Preamble to the constitution of the united states:
Quote:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Preamble to the constitution of the State of Washington:
Quote:
SECTION 1 POLITICAL POWER. All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.
Both of these legal documents define The People as having the power to regulate government and the laws it imposes.
ShootistPRS is offline  
Old April 28, 2017, 08:00 PM   #17
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 8,914
Quote:
Originally Posted by g.willikers
...One would hope if/when the courts do go too far, the laws will indeed get changed.
Otherwise the rule of law fails us and lawlessness rules in its place.
What we think, and what we get our political representatives to think, matters very much.
Which is through the political process. Which is why I wrote:
Quote:
...what you think doesn't matter in real life (except insofar as your views might encourage you to participate in efforts to change current law). ...
Quote:
Originally Posted by ShootistPRS
... Both of these legal documents define The People as having the power to regulate government and the laws it imposes.
If and to the extent and in the manner applied by a court. Law is meaningless simply written out on paper. It is a tool used by courts to resolve disputes before them by applying the law to the facts of the matter.

When a court applies the law to a matter in dispute, that application of the law affects the lives and property of real people in the real world. Your quoting snippets of law out of books doesn't actually affect anything.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Frank Ettin is offline  
Old April 28, 2017, 08:15 PM   #18
Aguila Blanca
Senior Member
 
Join Date: September 25, 2008
Location: CONUS
Posts: 10,089
Quote:
Originally Posted by g.willikers
Laws only are obeyed when the citizens are in agreement.
Prohibition, for example, and the current drug situation.
And the solution to Prohibition (the 18th Amendment) was to repeal it (the 21st Amendment). That's the political process to which Frank referred.
Aguila Blanca is offline  
Old April 28, 2017, 09:36 PM   #19
ShootistPRS
Senior Member
 
Join Date: January 3, 2017
Posts: 1,571
It is only on of a few ways to nullify a law. The easiest and most available to the common man is jury nullification.
ShootistPRS is offline  
Old April 28, 2017, 11:02 PM   #20
Aguila Blanca
Senior Member
 
Join Date: September 25, 2008
Location: CONUS
Posts: 10,089
Jury nullification applies to only the case in front of that jury on that day. Someone else could be convicted under the same law the very next day, in the same court. Repeal is universal.

Jury nullification isn't as available as you seem to think it is. Several years ago I was called for jury duty. Unlike previous times, this time they conducted the initial voir dire on the entire group, as a group. One of the questions asked was if anyone would have problems following the law as explained by the judge (which is what jury nullification is all about), raise your hand. We were under oath, so I raised my hand.

Well, BOY HOWDY!!! You might have thought I had just threatened to blow up the courthouse. The two lawyers (both sides of the case) immediately sent all the other jurors back to the waiting room, then they ganged up on me to try to tell me that a juror HAS to follow the judge's instruction. So I said that's not correct, that the first Chief Justice of the Supreme Court once said that a jury is empowered to judge both the facts and the law, and if I didn't agree with the way a judge explained a law, I could not in good conscience follow the instruction.

So they put me in a small room while they hunted up a judge, then called me back in. A woman judge proceeded to tell me the same things the lawyers had said, and I proceeded to give her the same answers I gave them. In the end, she told me that my understanding of legal history was flawed, and to go home and do some homework. I was dismissed.

I went home, looked up the case, and wrote a letter to the judge to inform her that I had followed her instructions, and found the case. She didn't even have the courtesy to acknowledge my letter.

The point of all this is that judges and lawyers don't like jury nullification. They don't want it even mentioned in a courtroom, and they'll do everything they can to convince you that it's not legal. Most jurors have never heard of it, and if you have heard of it, you have to fight off the indoctrination that says it's not lawful. That's not very readily available, in my book, and it's also not something you can count on.

Last edited by Aguila Blanca; April 28, 2017 at 11:13 PM.
Aguila Blanca is offline  
Old April 29, 2017, 12:31 AM   #21
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 8,914
Quote:
Originally Posted by ShootistPRS
It is only on of a few ways to nullify a law. The easiest and most available to the common man is jury nullification.
Don't be silly.

Jury nullification does nothing to nullify a law. The law exists and continues to exist and can be applied.

It is merely the expression of a jury's disinclination for some reason to convict a person who quite probably is guilty of the crime charged. It is the natural consequence of the prohibition of double jeopardy and works because the prosecution may not appeal a jury verdict of acquittal -- even when under the evidence and law the defendant was unquestionably guilty.

On occasion the reasons for an acquittal against the weight of the evidence and law could be noble. But the reasons may also be ignoble, such as when at times in our history a jury of White men in some States would resolutely refuse to convict a clearly guilty White defendant of the murder of a Black person.

As to being easy, that's hardly a foregone conclusion. For jury nullification to work the jury must acquit. That means that all the jurors necessary for acquittal must agree even when they have accepted based on the evidence that the defendant is guilty, and they must so agree even though they had been instructed by the judge that they are to apply the law as explained by him to the facts as they, the jury, find. Thus what might be characterized as an ultimate remedy can be preserved for only the most egregious cases.

While a single juror can generally cause a hung jury, and hung jury merely results in a mistrial; and the defendant can be retried.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Frank Ettin is offline  
Old October 21, 2017, 11:20 PM   #22
Suthern1
Junior member
 
Join Date: October 20, 2017
Posts: 12
And yet the multi million dollar pot industry has done in Colorado exactly what this Kansas man did by relying on state law contradictory to Federal statute. And no one says squat. Am i wrong?
Suthern1 is offline  
Old October 21, 2017, 11:28 PM   #23
Suthern1
Junior member
 
Join Date: October 20, 2017
Posts: 12
Quote:
Originally Posted by JoeSixpack View Post
Is'nt this the same line of reasoning that allows Texas to continue to mfg incandescent bulbs after they was banned at the federal level?

They're not sold out of state.
Now I understand I just compared light bulbs to suppressors but that really should not matter legal if it holds up for 1 it should for the other.


at least that's my understanding correct me if im wrong.
Cross one border into Colorado and smoke a bowl of marijuana then come back to Kansas and manufacture a silencer and see what charges you are brought up on. Hey its a valid argument.
Suthern1 is offline  
Old October 21, 2017, 11:52 PM   #24
Frank Ettin
Staff
 
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 8,914
Quote:
Originally Posted by Suthern1
And yet the multi million dollar pot industry has done in Colorado exactly what this Kansas man did by relying on state law contradictory to Federal statute. And no one says squat. Am i wrong?...
Yes, you are.

Colorado and several other States may have made the recreational use of marijuana legal under State law. And several more have made the medicinal use of marijuana under State law.

However, under federal law, the Controlled Substances Act, marijuana is a Schedule I controlled substance which can't be lawfully d prescribed, possessed or used. So anyone using marijuana, even if legal under state law, is violationg federal law.

Under the Constitution, federal law trumps state law (Article VI, Clause 2):
Quote:
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Thus far the federal government has exercised its prosecutorial discretion and not rigorously prosecuted marijuana use. However, that is a matter of policy and not law, so it can change at any time.

Also. since any user of marijuana is an unlawful user of a controlled substance under federal law, even if the use is legal under state law, he violates federal law (18 USC 922(g)(3)) he he has a gun or ammunition.

Quote:
Originally Posted by Suthern1
...come back to Kansas and manufacture a silencer and see what charges you are brought up on. Hey its a valid argument.
It didn't work for Shane Cox and Jeremy Kettler who made suppressors in Kansas and were then were convicted in federal court in Kansas for violating the NFA.
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
Frank Ettin is offline  
Old October 22, 2017, 12:43 AM   #25
Suthern1
Junior member
 
Join Date: October 20, 2017
Posts: 12
How am I wrong and everthing you said agrees with me?
You seem to have made exactly my point Frank. That Federal law is only enforced at the discretion of Prosecutors. This however does not exempt people who break one law and subject another who breaks another law.

A prosecutor has not the authority to waive an offense do they? They simply decide if they are going to prosecute for the offense.

Which prospect in itself being politically or monetarily motivated is an offense to there oath of office and the constitution.

Dot get me wrong I'd rather have weed and silencers legal but the fact is neither is under Federal Law. So lets not be bias and prosecute all crime or none is my point. PS I like the old light bulbs better also...
Suthern1 is offline  
Reply

Thread Tools Search this Thread
Search this Thread:

Advanced Search

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 10:01 PM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2018, vBulletin Solutions, Inc.
This site and contents, including all posts, Copyright © 1998-2018 S.W.A.T. Magazine
Copyright Complaints: Please direct DMCA Takedown Notices to the registered agent: thefiringline.com
Contact Us
Page generated in 0.10350 seconds with 8 queries