Gun silencer court case involving Second Amendment ignites Kansas Capitol protest

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Aim1

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If the Hearing Protection Act is signed into law will this guy be saved since suppressors would no longer be illegal to own without a stamp?





http://www.kansas.com/news/politics-government/article126014949.html



Gun silencer court case involving Second Amendment ignites Kansas Capitol protest

JANUARY 11, 2017 7:26 PM

TOPEKA


Supporters of a Humboldt man convicted of possessing an illegal gun silencer rallied at the Capitol on Wednesday, saying he should have been protected by a state law designed to nullify federal weapons regulations in Kansas.

Jeremy Kettler said he relied on the Kansas Second Amendment Protection Act of 2013 when he bought a locally made sound suppressor from his co-defendant, Shane Cox, a Chanute gun dealer, and posted a Facebook video of himself using it.
But in November, a federal court convicted Kettler of illegally possessing the silencer, and Cox was found guilty of illegally possessing, manufacturing and selling the devices. They face a Feb. 6 sentencing hearing in Wichita federal court.

Silencers are strictly regulated under federal law, but Kettler said Cox was assured by a lawyer and local law enforcement officials that the equipment would be legal as long as it was made in Kansas and remained in the state.
That was the crux of the Second Amendment Protection Act, a gun law the Legislature passed in 2013 asserting the state’s right to nullify federal firearms regulations on weapons that are made in Kansas and never go into interstate commerce.




 
Maybe. He was convicted in Federal court. He was charged with a Federal crime. The state law is meaningless.

He could be a candidate for a pardon however. Some of that would depend on what the final passage of Hearing Protection Act says.
 
Maybe. He was convicted in Federal court. He was charged with a Federal crime. The state law is meaningless.

He could be a candidate for a pardon however. Some of that would depend on what the final passage of Hearing Protection Act says.


If he's covered by the HPA would he still need a pardon or would he be cleared simply because of the law change?
 
If he's covered by the HPA would he still need a pardon or would he be cleared simply because of the law change?

He would be a convicted felon. IANAL but it seems he would need a pardon to change that status.
 
Didn't the Gov. and AG see where that style of legislation would go? Did they think this through to the end, or was it just feel goody wet-finger-stick-in-air political stuff?
 
They took the word of lawyers and cops at face value and went ahead thumbing their nose at the BATF.

There's a lesson here. Pick your fights carefully.

MO rescinded it's state law restricting Federal officers performing their duties. It was political theater.
 
The article says an attorney told him it would be OK, goes to show that unless attorneys specialize in the firearms arena they can be dead nuts wrong as well. The Kansas State law nullifies Congress' authority to regulate interstate commerce but not the authority to tax, so they are probably focusing on the fact that he didn't pay his $200 bribe to the feds.

They'll probably want to use him as an example but if it clears up the misconception of NFA rules not applying then you would hope they would drop or greatly diminish the charges.
 
"...he should have been protected by a state law designed to nullify federal weapons regulations in Kansas."

Ignorant nonsense.

Article VI and its case law render it settled, accepted, and beyond dispute that Federal laws are supreme and cannot be "nullified" by the states.
 
My state's law does not "nullify" federal law, but it does say that state resources will not be used to enforce a federal law that violates the rights of the citizen protected in Article I of the state constitution.
 
From the article, "and posted a Facebook video of himself using it."

Sorry, stupid move. If you're doing something potentially illegal, why would you publish evidence like this against yourself? Is the need to see yourself on a screen that overwhelming to some?

The fact that he felt compelled to consult the police and an attorney shows he knew something might be wrong. Unfortunately, he was given bad advice. Politicians playing CYA and backing away from an issue like this, nothing new.

As far as selective enforcement, pot is PC, silencers are not. Besides, there's real money to be made with pot, silencers not so much. Money talks........
 
The article says an attorney told him it would be OK, goes to show that unless attorneys specialize in the firearms arena they can be dead nuts wrong as well....
This is yet another example of a state "firearm freedom" law failing to live up to expectations.

..... The Kansas State law nullifies Congress' authority to regulate interstate commerce ....
No it does not. It can't.
 
IMO, this is an example of the reason why pro 2A states should be uniting together to change Fed law that woild apply to ALL states instead of wasting time only thinking about their own states border by passing worthless laws and doing their citizens a disservice.

If they real change, they need to realize this is an all for one and one for all issue.

United We Stand.... Divided We Fall; Fail.
 
I'm of the mind that the State should be paying for Kettler's and Cox's attorney fees, seeing as how citizens of their fair state believed that the legitimately elected politicians (paid by taxpayers) had done their due diligence in writing and approving such a law. Other wise they have accepted taxpayer dollars under false pretenses.

On the other hand, Mr Kettler deserves a few months away from FaceBook to think about his actions too !!
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The NFA dates to a time long before we "discovered" the modern meaning of Interstate Commerce and it is based on Federal tax power. Several states has staked out principled grounds on Interstate Commerce with similar laws, but for the most part applied them to Title 1 fireams (the authority for the GCA '68 being Interstate Commerce (or at least our modern "understanding" of it). The State done goofed here by including NFA items.

One irony here is that many Federal marijuana laws date from the same period and are at least partially under the tax autority, yet a totally different state of affairs between Federal and State has taken shape with respect to conflicts in marijuana laws.

I feel really bad for these men. Hopefully the HPA (it seem to have a different title this year) passes and these two men are pardoned by the incoming president.

Mike
 
The Kansas State law applies to Kansas only. From what I understand, you get to comply with Federal, State and sometimes municipal gun laws. The 'and' being critical. It's all laws, not just the ones you like or interpret yourself.
Doubt the Hearing Protection Act will matter either. The previous GCA etc laws will need repealing by Congress and you usually don't get to use a new law as a defence for an old charge.
We have it easy up here. No such thing as Provincial or municipal firearms laws. Federal only. That's bad enough as the idiots who enacted 'em gave the administration of it to the Provinces. So now we have 10 different applications. None by municipalities though.
 
It seems obeying Federal Laws are like visiting a Chinese Buffet. Two hours after you eat something made you sick. But which choice was it?
The states like Colorado made the choice to violate the Federal Drug laws. They also made the choice do defy the 2nd Amendment. One of them made many gun owners down in Colorado ill.:eek:
 
From the article, "and posted a Facebook video of himself using it."

Seems a violation of "Jersey Law" -- everything is legal as long as you don't get caught!
:)

If the locals are willing to look the other way, don't rub their faces in it and dare the Feds to step in!
 
This is yet another example of a state "firearm freedom" law failing to live up to expectations....
So then the reverse has to work.

If Federal "firearm freedom" laws pass then they will supersede state anti-gun laws. Right?

That's something of a gross oversimplification. The whole area of federal preemption and choice of law (where the laws of multiple jurisdictions could be applicable) is a huge, complex, and pretty much non-intutive subject.

For example, there is first the question of whether the Congress has the constitutional power to enact the law. Then there can be the question of what the limits of the application of that federal law might be within the confines of the scope of Congress' constitutional power. That for example was the sort of question addressed in Wickard v. Filburn, 317 U.S. 111 (1942) and Gonzales v. Raich, 545 U.S. 1 (2005), where the federal laws were clearly within Congress' power under the Commerce Clause; but the constitutionality of the application of those laws to particular activities was in question.

Also, if the particular issue addressed by the state law is also addressed by the federal law, there's the question of whether the particular federal law was intended to "occupy the field", i. e., be the final word on the subject. In that case the federal law preempts the state law and applies instead of the state law.

On the other hand, if a court decides that the federal law did not reflect an intent to occupy the field, in order to decide if federal law or state law applies a court will need to decide if the state law is consistent a federal policy concern or would, on the other hand, frustrate the federal policy furthered by the law.

Sometimes federal law will be explicit about how a conflict between federal law and state law is to be resolved. An example which comes immediately to mind involves the confidentiality of medical information regulation under HIPAA. Those regulations expressly provide that they don't supersede state laws to the extent providing great protection of an individual's confidentiality interests.

On the other hand a federal law could be found to preempt state law if either expressly or by inference the federal law was intended to promote national uniformity with regard to a particular issue.

So if you want federal law to preempt state laws, you will first need to be able to draft the law in such a way that it can be enacted by Congress within the scope of Congress' constitutional powers. Second, you will want the law to expressly state that it is intended to occupy the field and regulate the subject on a uniform basis nationally.

With respect to the question of federal preemption of state firearms law under the federal Gun Control Act of 1968, see 18 USC 927:
No provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.
 
No it does not. It can't.

You're right, I didn't mean to put it that way. I meant to say that it seems to me their intention was that they could pass this law because they believed the NFA law was in accordance with Congress' authorization in interstate commerce, I'm guessing they didn't realize the National Firearms Act is in accordance with Congress' authorization to tax.
 
If the Hearing Protection Act is signed into law will this guy be saved since suppressors would no longer be illegal to own without a stamp?

I've been checking for the text of this year's bill to be published to Congress.org periodically and checked earlier today. It appears to have a different name this time and is not called the HPA.
As written, last year's bill would be one-day retroactive (but no further). There must be a legal reason for this. Perhaps Frank would know why.
Section 5841 of the Internal Revenue Code of 1986 is amended by adding at the end the following:

“(f) Firearm silencers.—A person acquiring or possessing a firearm silencer in accordance with Chapter 44 of title 18, United States Code, shall be treated as meeting any registration and licensing requirements of the National Firearms Act (as in effect on the day before the date of the enactment of this subsection) with respect to such silencer.”
Mike
 
This issue was already addressed by the SCOTUS in the Raich decision. People not lawyers may have thought it just impacted pot heads, but it expanded federal jurisdiction over everything whether it is part of interstate commerce or not, and even added extra legal logic and says just by existing and never crossing state lines or even being sold it impacts interstate commerce through supply and demand because the person that made it won''t be buying it instead. Whether black market or open market, merely existing impacts interstate commerce per Raich. Well this same logic applies to everything now under federal law, not just marijuana.

So it probably was legal under state law, it was not legal under federal law.
He is charged under federal law, not state law.
Marijuana is the same way across the country. Pot shops in the states that have legalized them get raided by the feds, were raided heavily under Bush, and almost not at all during Obama's second term, but since they are still federally illegal they still are subject to raids at any time.
Raich said even marijuana grown in the state for personal use and never sold still impacts supply and demand, and so they still have jurisdiction.
It was soon used in a gun case out of Arizona with the same logic a couple years later. A guy made his own personal machinegun and since he never sold or transferred it nor intended to take it out of state it never would have impacted interstate commerce under the old understanding.
The district court (in CA no less) even agreed it was outside the scope of interstate commerce as they were educated to believe. Then the Raich decision came out.
Well the Supreme Court cited Raich, and told them to reconsider it in light of Raich and his conviction stood. That was the Stewart decision.
Raich has set a new bar, everything is under federal jurisdiction if they make a law on it.

Where it gets really fishy is through asset forfeiture. California just passed a law to reduce the problem but I won't go into that.
In counties in CA that don't like marijuana the local sheriff with 10+ deputies will 'assist' the one or two federal agents they tipped off and then split the assets they seize, even though they broke no state law and often are not even charged at the federal level. So people never charged, or occasionally only charged federally, were having their assets taken permanently and split between the feds and local law enforcement. This created incentive for local law enforcement to go after people breaking no state laws.
Well the same can happen with anything a state says is legal and the feds do not. If the sheriff in Montana doesn't like people with NFA items that the state has said is legal but are federally illegal, it only takes a phone call and he can 'assist' the feds. The feds need little manpower since it is really the locals doing most of the work, but it is technically being dealt with at the federal level under federal law (though the prosecution costs will be federal too.)

Someone convicted will likely remain a convicted felon whether the law goes away or not. Unless the law adds that in, a way to petition to have convictions for past violations dropped.
It would be different if it was determined to be in violation of the 2nd Amendment, because then it would be saying that it was already his rights that were just not being recognized and so the past conviction was invalid.
But a new law that simply makes it legal won't undo a past conviction.

It is all selective enforcement though. Marijuana is being given a pass in enforcement at the federal level right now because the movement is so big and strong with multiple states legalizing it despite federal law.
Unfortunately gun owners are more law abiding in their approach, so there is not gun dealers all over refusing to get FFLs, selling what they want, getting the support of multiple states, and doing the same thing that is being done with marijuana.
A big part of that is probably the prohibited person clause in the 1968 GCA that makes you a lifetime felon that cannot even legally own a firearm if you take any kind of civil disobedience stance involving firearms.
People could deal with an arrest for marijuana to get the marijuana movement where it is now through long term civil disobedience and state support. But gun owners don't deal so well with an arrest for gun charges, because they can't ever own a gun again and if they do are subject to many years in prison.
Prohibited persons really impacts civil disobedience.
 
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Laws wind up being complicated critters. Let's consider a person convicted of a felony violation of the Volkstead Act (Prohibition) and serving a sentence. When the 21st Amendment was enacted, it did not vacate the sentences found guilty of Volkstead Act violations. The repeal did give grounds to request pardons & commutations.

The above is extremely over-simplified as well, and fails in many levels of detail and nuance.
 
Makes me wonder how many guys are felons based just on a illegal suppressor charge and nothing else. Seriously doubt that there is more than just a handful. I would bet that most will have other felonies on their record that would make vacating that one charge meaningless.



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From the article:

The federal court has ruled that the Second Amendment Protection Act, by its own terms, does not apply in the case at hand,” Schmidt said in a statement issued by his office. “That is because the National Firearms Act is enacted under Congress’s power to tax, not its power to regulate interstate commerce.”

Read more here: http://www.kansas.com/news/politics-government/article126014949.html#storylink=cpy

Well crap. Looks like some state legislators failed to properly read the federal regulations.
 
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