Archive for Tuesday, August 27, 2013

Appeals court knocks down Montana law similar to Kansas’ Second Amendment Protection Act

August 27, 2013


— A federal appeals court has ruled against a state law like the one in Kansas that declares federal firearms regulations don't apply to guns made and kept in the state.

Last week, the 9th U.S. Circuit Court of Appeals agreed with a lower court decision against the 2009 Montana Firearms Freedom Act.

The 9th Circuit doesn't include Kansas, but the decision focuses on a law that is similar to the Second Amendment Protection Act, which was approved by the Kansas Legislature this year and signed by Gov. Sam Brownback.

The Second Amendment Protection Act excludes from federal regulation any gun made or owned in Kansas. It will allow law enforcement in Kansas to charge and convict federal authorities with crimes if they try to enforce action against a Kansas-protected gun.

In April, U.S. Attorney General Eric Holder wrote a letter to Brownback saying that the Kansas law was unconstitutional. Holder also warned that the federal government "will take all appropriate action, including litigation if necessary, to prevent the State of Kansas from interfering with the activities of federal officials enforcing federal law.”

Kansas Attorney General Derek Schmidt could not be reached for comment on the appeals court ruling. When the Second Amendment Protection Act was being debated in the Legislature, Schmidt said it would cost $625,000 to defend against legal challenges of the law, according to a memo from the Kansas Legislative Research Department.

In the Montana case, the Justice Department successfully argued that the courts have already decided Congress can use its power to regulate interstate commerce to set standards on such items as guns. Some gun-control advocates sided with the federal argument, saying that "firearm freedom acts" would allow felons to obtain guns without background checks and make it harder to trace guns used in crimes, according to The Associated Press.

The Montana Shooting Sports Association said it had expected the appeals court would rule against the law.

The group’s president, Gary Marbut, argued in the case that he wanted to manufacture a small, bolt-action youth-model rifle called the "Montana Buckaroo" for sale in Montana. The federal Bureau of Alcohol, Tobacco and Firearms told Marbut such a gun would be illegal under Montana law.


chootspa 4 years, 9 months ago

Pass a law that costs the state money to defend, but everyone knows will eventually be defeated. Your fiscally conservative tax dollars at work, folks.

kansanjayhawk 4 years, 9 months ago

Is this the best argument you can come up with name-calling? I doubt the purpose of the law was to make you happy--it was and is to defend --our right to keep an bear arms as protected by the Constitution. If name-calling is the best you can do to make an argument you are going to have to go back to the drawing board...

chootspa 4 years, 9 months ago

We have a Supreme Court that decides what laws are constitutional. States don't get to make their own interpretations. The purpose of the law was pure kabuki theater.

Orwell 4 years, 9 months ago

So you like the part of the Constitution about the right to keep and bear arms, but not the part about federal law taking precedence over state law?

Sorry – the Constitution is not a cafeteria.

Cheryl Nelsen 4 years, 9 months ago

No one is taking away your right to bear arms. This is about saying to federal agents, "You can't come in here and do anything about any guns made here in Kansas. If our guns were used to shoot up a school somewhere, you have no right to be checking them!" That's how crazy this is. You can buy a gun. Go do it legally, but quit forcing them on those of us who don't want to be around them.

BlackVelvet 4 years, 9 months ago

I kinda wonder if the legislature passed that law more as a way to say "stop telling the states what to do" rather than any of them really thinking it would pass legal muster. I have to hope they're not that stupid.

kernal 4 years, 9 months ago

Black Velvet, whether it's stupidity or ignorance, they've made a mockery of our legislature.

I do think there are a couple of them that aren't very bright. Then there's that one we sent to Washington.

kansanjayhawk 4 years, 9 months ago

Many of us believe that the mockery of the law is coming from Obama and Washington and NOT from Topeka. The liberties protected by the Constitution are made into a complete joke by a liberal Administration run wild that does not respect privacy or the rights of individuals. Look at the IRS and NSA scandals and tell me how much Obama and the Federal government respect our rights. If anyone is "stupid" it is those who refuse to open their eyes and see what Obama and Sebelius are doing to America.

Maracas 4 years, 9 months ago

This is a good example why Kansas continues to be a backwards state, which allows Brownback, the legislature and former BOE members to repeatedly demonstrate that Camelot is a silly place.. Of course, I'm probably wrong because everyone knows, for example, that we all need to carry concealed firearms in courthouses to protect our constitutional liberties.

optimist 4 years, 9 months ago

Never mind his willingness to completely disregard his oath of office where he failed to enforce existing immigration laws and went so far as to instruct immigration agencies and agents not to do their jobs or making recess appointments to the NLRB when the Senate wasn't in recess. What about his willingness to ignore the Affordable Care law that he signed. He behaves as though he has latitude in implementing a law where no such latitude exists. The executive branch is responsible for enforcing and defending all laws whether they approve of them or not. There is no discretion here. Discretion is for monarchies and I thought that was exactly what this country was founded against?

Fatty_McButterpants 4 years, 9 months ago

Kansanjayhawk, those domestic surveillance programs and infringements of liberty that you complain about were started under Bush and the Patriot Act. Is it right that Obama has continued those practices? No, but don't pretend as if he is the source of these infringements.

Optimist, do you actually have something to substantiate your claims, or do you just make wild accusations? Obama has done a better job of enforcing immigration and deporting illegal immigrants than any of his predecessors, and I actually have something with which to back it up:

kansanjayhawk 4 years, 9 months ago

Obama has dramatically expanded these programs and practices. G W Bush never used the IRS to do what the Obama appointees and bureaucrats have done by going after the conservative and tea party groups. I do not agree with all that any President does but certainly Obama has demonstrated that he is a first class hypocrite on civil liberties issues!

Cheryl Nelsen 4 years, 9 months ago

You really like what is happening in Topeka?

cabmando 4 years, 9 months ago

If they are going to rattle the Feds feathers, why don't they legalize pot and collect the tax money?

Dick Sengpiehl 4 years, 9 months ago

Not surprising. Stupid to spend state money defending unconstitional legislation

kansanjayhawk 4 years, 9 months ago

Sometimes the only way to defend liberty is to fight against the Federal encroachment. The legislature seems to have a majority of members who believe that their interpretation of the Constitution is just as important as some bureaucrat in D.C.

elliottaw 4 years, 9 months ago

What about the 2nd amendment has changed in the last ten years.......that's right nothing, unless you count the faceless fear tactics of the NRA

billbodiggens 4 years, 9 months ago

Oh, Mr. Hawk, you know how it is - stupid is as stupid does. . .

Constitutional_Counselor 4 years, 9 months ago


Did you folks read the 9th Circuit decision?

First, the appeals court overturned the district court's conclusion that Marbut lacked standing to sue. This key determination means that, in fact, the appeals court understood what the district court didn't, namely that being forced to have a federal weapons manufacturing license imposes a cognizable economic burden that is special and particular to Marbut. THE DISTRICT COURT GOT THIS ELEMENTARY LEGAL QUESTION WRONG>

Second, Marbut candidly acknowledged in his appeal brief that the 9th Circuit's hands were tied by its own prior precedent and prior decisions of the Supreme Court. In doing so, he communicated his understanding of the legal status of the Commerce Clause decisions of the Supreme Court and, at the same time, strongly signaled intentions to take this matter to the Supreme Court. Here's the specific language from Marbut's appeal brief:

"Appellants realize that in many respects, as regards the arguments so far made, the Court’s hands are tied. Appellants advocate for the case law being overturned, and an intermediate scrutiny test being applied. But the relevant case law has been promulgated by the Supreme Court, whose decision are controlling. See e.g., United States v. Stewart, 451 F.3d 1071, 1076 (9th Cir. 2006). Thus, even if the Court agrees with the reasoning, there are few remedies the Court is able to offer. One, however, would be to limit Raich to its facts, and distinguish it on grounds of its national defense implications."

Thus, Marbut has properly and squarely set up his case for review at the Supreme Court. Of course getting review there is no simple matter. But the commenters here that make this business out as the stuff of simpletons pushing water up hill are, by my read of things, uninformed.

patkindle 4 years, 9 months ago

Politics is the gentle art of getting votes from the poor and campaign funds from the rich, by promising to protect each from the other.

Orwell 4 years, 9 months ago

And, in Kansas at least, keeping only the promise made to the rich.

Bob_Keeshan 4 years, 9 months ago

Spending money litigating "defending liberty against the Federal encroachment" legislation is brilliant. The best way to defend liberty, and for that matter to have a healthy economy, is to spend millions of taxpayer dollars on that.

For the estimated cost just to defend this one defense of liberty in district court, you could fund over 150 Kansas school children. In Lawrence, for example, that would mean much smaller class sizes in the early grades at every elementary school instead of 25-30 kids per classroom. Then start to add in defending liberty cases like abortion restrictions, voting restrictions, healthcare restrictions, and that's funding for thousands of additional Kansas classrooms.

That would be a terrible way to defend liberty, though. A well-educated state? That's anti-liberty.

kansanjayhawk 4 years, 9 months ago

Part of educating our children is teach them about the rule of law and the Constitution!

Lawrence Morgan 4 years, 9 months ago

I completely agree with Bob Keeshan.


Liberty275 4 years, 9 months ago

The "interstate commerce" clause is far too often abused by the federal government. This is a perfect example. If A Montana Buckaroo rifle is only built and sold in Montana, how exactly does that fall under "interstate commerce"?

jafs 4 years, 9 months ago


There's a good point there.

They've stretched the interpretation of the ICC much too much, in my opinion. Intrastate commerce shouldn't fall under it.

But, there's a history and a lot of precedents supporting the modern view and use of it, and I doubt that the SC would oppose those.

Also, in practice, unless there's a way to ensure that those weapons (or any other intrastate items) don't ever get sold to somebody in other states, they do start to become interstate commerce.

So, for example, somebody buys that gun in Montana, and then sells it to a friend in Nebraska.

Fred Whitehead Jr. 4 years, 9 months ago

What we need is a 6 man gun battle in the lobby of a libbrary somewhere where an argument develops over who gets to check out the book on gun stuff. Gun nuts seem to have short fuses in difficult circomstances..

That is what the Second Amendment apparently means by "a well-regulated militia" in Bleeding Kansas.

verity 4 years, 9 months ago

Does anybody who is paying attention actually believe this is about individual freedom and rights or state's rights?

This is about the NRA using fear to support the gun industry. The NRA only cares about your rights as long as it brings in more money.

optimist 4 years, 9 months ago

This is good news for the 2nd amendment. The 9th Circuit is the most overturned Appeals Court in the history of the country. This is a strong indication that the Montana law will be declared constitutional by SCOTUS, which is the correct outcome. SCOTUS has also ruled in the past with regard to federal authority over drugs but it hasn't stopped states from passing laws conflicting with it. Where is Holder on that one? Apparently in Holder’s world drugs are held in higher regard that the 2nd amendment. This attack on the 2nd amendment from a guy that encouraged the sale of guns to know criminals that would in turn hand them over to violent drug cartels along our southern border. What a hypocrite.

jafs 4 years, 9 months ago

I wouldn't bet on that.

The SC has held over time that the ICC gives the feds the right to meddle in intrastate commerce - I seriously doubt the SC will declare the Montana law constitutional.

The analogy with drugs is a pretty good one - in both cases, federal law will "trump" state law if there's a conflict - but, the difference is that these gun laws also try to make federal enforcement illegal in states, which is an extra bit.

blindrabbit 4 years, 9 months ago

Silver: Agree, Kansas stupid and backwards as the rest of the country perceives us. Now throw in "Ugliest State in the Union" in a poll conducted by Business Journal. And why not, no natural lakes, flat, droughty, tornadoes, etc. This coupled with "as bigoted as you think", Phelps', Dorothy, Koch Brothers, BTK, C-Street Governor, Senate Iraq War cover-up chairman (Roberts), death site of Knute Rockne, birthplace of crooked Florida Governor Scott, Mensa challenged U.S. Representatives Tancredo, Jenkins, Huelskamp and Galilee Sea nude swimmer. Creation addicted School Board, shooting aliens from helicopters, flyover state, ball of twine and hand dug well, and KU Football.

blindrabbit 4 years, 9 months ago

Oh, how could I forget Herr Kansas' Kris Kobach!

Fatty_McButterpants 4 years, 9 months ago

How many people actually realize that open-carry is still perfectly legal? Concealed carry is not the only option, folks. That being said, I imagine it won't take long for some "hero" with a concealed weapon to shoot someone adhering to the existing open-carry laws.

It's not that I don't trust everyone with carrying a gun, it's the ammunition I do not trust them with...

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