WICHITA - (November 15, 2016) - Kansas Attorney General Derek Schmidt today filed a post-trial brief defending the constitutionality of the Kansas Second Amendment Protection Act in connection with a pending request that a federal judge dismiss criminal charges against two men convicted of violating federal firearms law.
A federal jury in Wichita yesterday found Shane Cox and Jeremy Kettler guilty on various counts of violating the National Firearms Act. The men argued in their defense that they relied in good faith on the Kansas Second Amendment Protection Act as justification for not abiding by the federal law. The Kansas statute, enacted in 2013 by large bipartisan majorities in the Legislature, declares that certain federal laws violate the U.S. Constitution and are void and unenforceable and that Kansas firearms regulations instead govern in areas outside federal authority.
Late last year, shortly after the federal indictment was announced, Schmidt notified the trial court judge that Kansas intended to defend the constitutionality of the Second Amendment Protection Act and requested to be notified if the statute’s validity were called into question as the case proceeded. Before the trial began last week, Schmidt intervened in the case for the purpose of defending the constitutionality of the Kansas statute. The Court allowed the attorney general’s intervention but never ruled on whether the Kansas statute is constitutional. Instead, the Court concluded that because of the way the Kansas Legislature wrote the state law, it did not apply to this case. Specifically, the Court held that the Kansas law, by its terms, applies only to federal statutes enacted “under the authority of congress to regulate interstate commerce.” But in this case, the federal prosecution was for violations of the National Firearms Act, which is part of the internal revenue code and was enacted pursuant to the power of Congress to levy taxes, not its power to regulate commerce.
Despite finding the Kansas statute inapplicable in this case, after the attorney general intervened in the case, the Court did allow the defendants to tell the jury about their reliance on the Kansas statute as justification for their actions. The defendants did so.
One of the defendants has filed a motion to dismiss the case that remains pending despite the jury’s verdict. In it, he argues that the National Firearms Act is an unconstitutional use of the constitutional power of Congress to lay and collect taxes. In his filing today related to that motion, Schmidt argued that the Kansas Second Amendment Protection Act is constitutional.
“If, through its ruling on [the defendant’s] motion to dismiss or otherwise, this Court were to find the constitutionality of the Second Amendment Protection Act to be at issue here, the Court should hold that the Kansas Act is constitutional because it merely regulates what the federal government may not regulate,” Schmidt wrote. “The intent of the Second Amendment Protection Act is to reaffirm the constitutional limits on Congress’s authority to regulate firearms, firearms accessories and ammunition under the Constitution and thereby protect the rights reserved to Kansas and its citizens under the Second, Ninth, and Tenth Amendments.”
Schmidt said any decision about appealing the conviction will have to be made by the defendants and their counsel. The Kansas attorney general represents the state’s interest in defending its laws but does not represent individual criminal defendants.
But he said if the defendants appeal, the state will continue to defend the constitutionality of its Second Amendment Protection Act.
“The defendants here argued that their good-faith reliance on a valid state statute should be a defense to their actions,” Schmidt said. “That position is reasonable, and it is consistent with the State’s interest in ensuring the Second Amendment Protection Act itself is defended. If the defendants appeal, we will continue to strongly defend the constitutionality of the Second Amendment Protection Act in the appellate courts.”
The case is United States of America v. Shane Cox and Jeremy Kettler, 15-cr-10150 (D. Kan.). Copies of the attorney general’s pre-trial motion to intervene, the court’s two subsequent orders from early last week allowing the defendants to tell the jury about their reliance on the Second Amendment Protection Act and granting the attorney general’s intervention, and today’s brief filed by the attorney general are available at http://bit.ly/2f1pOdP.