Tuesday, District Judge Marten of the 10th Circuit ruled against the Kansas Second Amendment Protection Act, which allowed Kansas citizens to make suppressors in Kansas which stayed in KS, without going through Federal NFA registration. Decision based on the NFA being valid taxing power enacted by Congress.
Judge J. Thomas Marten handed down the decision, which upholds federal charges against Shane Cox and Jeremy Kettler and will allow their sentencing to take place on Monday.
Last November, a jury found Cox guilty of violating federal law for manufacturing and selling suppressors. Cox reportedly did not have the proper licenses, pay the necessary tax or register the items in accordance with the National Firearms Act. Kettler was found guilty of purchasing an illegal suppressor from Cox.
The Kansas Second Amendment Protection Act, signed into law by Kansas Gov. Sam Brownback in 2013, was enacted to exempt all guns, ammunition and accessories from federal gun control regulations in the state. Similar exemptions have been signed into law in eight other states, which may come under further scrutiny after Judge Marten’s ruling.
Marten wrote the following in his 13-page decision, after detailing the oath he took before assuming office as a federal judge:
This oath requires a judge to uphold the Constitution and laws of the United States, as interpreted by the United States Supreme Court and the Tenth Circuit Court of Appeals. Where there is a decision on any point of law from the Supreme Court or the Tenth Circuit, or both, I am bound to follow those decisions. This is true whether the decision is absolutely identical, or whether it sets out a principle of law that applies equally to different facts. 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 went on to state that silencers are included in the National Firearms Act as items that must be registered and taxed.
You can fool all of the people some of the time, and some of the people all of the time...and those are pretty good odds.
Brett Maverick, gambler on TV (also used by Progressive leaders everywhere)
Judge Marten did address the Commerce Clause in Section IV of the 13-page judgment (download link in the guns.com article above); and he relied somewhat also on the 9th Circuit Appeals Court judgment against the Montana Firearms Act which was similar to that of Kansas.
IV. Congress’s authority to regulate interstate commerce.
The U.S. Constitution also gives Congress the power “To regulate Commerce …
among the several States….” U.S. Const., art. I, § 8. The Supreme Court has held that
this clause does not permit Congress to regulate purely local activities. See United States
v. Lopez, 514 U.S. 549 (1995). But Supreme Court case law also “firmly establishes
Congress’s power to regulate purely local activities that are part of an economic ‘class of
activities’ that have a substantial effect on interstate commerce.” Gonzales v. Raich, 545
U.S. 1, 17 (2005). Thus, “[w]hen Congress decides that the ‘total incidence’ of a practice
poses a threat to a national market, it may regulate the entire class.” Id. 4
The court’s conclusion that the NFA is a valid exercise of Congress’s taxing
power makes it unnecessary to decide whether the NFA is also a valid exercise of
Congress’s power to regulate interstate commerce. Cf. Montana Shooting Sports Ass’n. v.
Holder, 727 F.3d 975, 982 (9th Cir. 2013), cert. denied, 134 S.Ct. 955 (Jan. 13, 2014) (finding
that under Raich, Congress can exercise its commerce power to validly regulate
manufacture of firearms made within the State of Montana, notwithstanding Montana
Firearms Freedom Act declaring otherwise). Accordingly, the court does not address
that issue.
At issue still is whether a KS suppressor made by an individual for his own personal use passes muster. In the case against Shane Cox and Jeremy Kettler, Cox was manufacturing and selling untaxed suppressors and Kettler bought a commercially made untaxed suppressor. BATF doesn't seem to have gone after individuals in Firearm Freedom Act states making a suppressor for their own personal use, that stays within that state (maybe because they don't know about it, or maybe it is OK or not worth their effort).
You can fool all of the people some of the time, and some of the people all of the time...and those are pretty good odds.
Brett Maverick, gambler on TV (also used by Progressive leaders everywhere)
Thanks to Wickard v Filburn, the federal government can easily regulate just about anything under interstate commerce, even if there is no actual interstate commerce going on. Filburn was growing crops on his own property, and using the harvest on his own property. Until the Supreme Court decides to overturn it, or Congress passes a law redefining the terms, we're pretty much stuck.
Surprisingly, Judge Marten sentenced Cox and Kettler on their felony convictions, but then gave them no prison time and just a small fine--saying it's because the Kansas law persuaded them what they did was legal. Perhaps it was also due to KS legislators being present and the government of Kansas being completely supportive of Cox and Kettler. After all, Judge Marten and his family have to live in Kansas.
Judge Marten said that he has taken an oath not only to the Constitution but also to the law. He spoke of the case law that is on the books – such as the Heller case in DC.
Judge Marten said he was not asked to rule on the constitutionality of the Second Amendment Protection Act so he was not going to rule on it.
He felt that Cox and Kettler were not a danger to society as they thought that they were protected by the Second Amendment Protection Act and thought they were acting within the law.
Judge Marten noted that this case was under the taxing power of the federal government in like manner to the Affordable Care Act.
Judge Marten sentenced Kettler to one year probation with a $100 payment required to the federal crime victims fund. He sentenced Cox to 2 years probation for the 8 counts he was found guilty of and this requires 8 times the $100 payment must be made to the crime victims fund – for a total of $800.
Judge Marten thanked Kettler for his military service in Iraq and Afghanistan, and also recognized that Cox’s daughter is currently on active duty in military service and was in the audience.
You can fool all of the people some of the time, and some of the people all of the time...and those are pretty good odds.
Brett Maverick, gambler on TV (also used by Progressive leaders everywhere)
poikilotrm wrote:The NFA is dependent upon the interstate commerce clause. How did they violate that?
If you , in Kansas , made a silencer in Kansas, you did not purchase one from Georgia. That is the rationale put in place by the Supreme Court decades ago.
poikilotrm wrote:The NFA is dependent upon the interstate commerce clause. How did they violate that?
If you , in Kansas , made a silencer in Kansas, you did not purchase one from Georgia. That is the rationale put in place by the Supreme Court decades ago.
OK. So then how did the feds have standing?
The moments I was censored was the moment that I won. That's twice, now.Thanks jwbaker, et al, for my victories.
poikilotrm wrote:The NFA is dependent upon the interstate commerce clause. How did they violate that?
If you , in Kansas , made a silencer in Kansas, you did not purchase one from Georgia. That is the rationale put in place by the Supreme Court decades ago.
OK. So then how did the feds have standing?
Because they regulate interstate commerce via the Commerce Clause of the US Constitution . Your building a silencer in Kansas "affects" possible interstate commerce. You don't have to agree with that rationale but the Supreme Court did in Wickard v. Filburn in response to the Agricultural Adjustment Act of 1938. That decision set tremendous precedence in the courts as to the extent of what the US Government can claim as interstate commerce and essentially gutted the 10th amendment. That's why the smattering of "firearms freedom acts" are looked upon as null and void by the feds. The court has repeatedly ruled to uphold provisions and the precedence of the Wickard V. Filburn case throughout the last 75 years. That's why the Feds have standing.
YugoRPK wrote:... "affects" possible interstate commerce. ...
Sums up the overreach.
http://www.youtube.com/watch?v=BDtd2jNIwAU MUSAFAR!
http://www.youtube.com/watch?v=8CrOL-ydFMI This is Water DavidW
Complete Form 1s http://www.silencertalk.com/forum/viewtopic.php?f=10&t=79895
My complaint on the rationale that the existence of it anywhere affects the existence of all others elsewhere is that it doesn't apply to silencers. Wheat, gasoline, etc. is a 'fungible' commodity; meaning that gasoline is gasoline is gasoline. This is why one-day boycotts against Exxon gas-stations (just for example) don't work. Even if everyone could adhere to the principle of a one-day boycott of one gasoline brand, it wouldn't matter, because the excess gasoline from Exxon would simply be sold to Shell or Valero. C8H18 isn't different elsewhere.
Yes, production of gasoline affects the supply-&-demand for all other producers. But silencers aren't interchangeable with one another in the same manner. There is an enormous amount of variance between different manufacturers, calibers, and price-points -- sometimes even from just one company.
Furthermore, silencers aren't a consumable. Sure, in the broadest sense of the word, everything eventually breaks and is replaced or done without, but gasoline and wheat are single-use consumables. Silencers are not.
If the whole basis of the court's decision is that even though it isn't 'interstate commerce', that the manufacturing still influences national markets, then they'd still be wrong. An influx of "Lauer's Custom Shyte Silencers" aren't likely to cut into Silencerco's Sparrow sales if only because discriminating buyers who want actual suppression will still by-pass the cheap intrastate crap in order to acquire an actual silencer.
This is the downside of having grossly uneducated folks wearing robes: they decide based on what their predecessors have done without understanding how the rationale doesn't apply.
