Kansas legislature

Kansas Legislature

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.


Fatty_McButterpants 7 months, 3 weeks 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...


irtnog2001 7 months, 3 weeks ago

9th Circuit has no legal precedence here.


blindrabbit 7 months, 3 weeks ago

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


blindrabbit 7 months, 3 weeks 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.


optimist 7 months, 3 weeks 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.


verity 7 months, 3 weeks 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.


Fred Whitehead Jr. 7 months, 3 weeks 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.


Edward Coan 7 months, 3 weeks ago

If states want to run their own state then why don't they succeed and be their own country?


Liberty275 7 months, 3 weeks 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"?


Lawrence Morgan 7 months, 3 weeks ago

I completely agree with Bob Keeshan.



Bob_Keeshan 7 months, 3 weeks 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.


patkindle 7 months, 3 weeks 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.


Constitutional_Counselor 7 months, 3 weeks 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.


Dick Sengpiehl 7 months, 3 weeks ago

Not surprising. Stupid to spend state money defending unconstitional legislation


cabmando 7 months, 3 weeks ago

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


BlackVelvet 7 months, 3 weeks 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.


Silver 7 months, 3 weeks ago

kansas, as stupid and backward as the rest of the world thinks. Prime example, the governor and GOP Legislature.


chootspa 7 months, 3 weeks 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.


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