In the case of the United States of America v. Shane Cox and Jeremy Kettler, there are a few things that need to be known and a few things that need to be said. This is being listed under Ranz and Opinion because of the overall tone; this is a letter of disapproval, not news.
Let me begin by explaining the situation. Shane Cox and Jeremy Kettler of Kansas were arrested and sentenced to prison for both following a law and violating another law at the same time. Confused? Wondering how this can happen?
Before I get into what Cox and Kettler “did” let me explain that it is true that Federal law requires that firearms and accessories such as silencers bear the name of the manufacturer, the city or state where they are made and a serial number. Furthermore, silencers are legal as well but are regulated by federal law and on a state-by-state basis by the Nation Firearm Act (NFA) branch of the Bureau of Alcohol, Tobacco, Firearms and Explosives (BAFTE). Private citizens can legally purchase and possess silencers in 42 states without a permit. However, important to note is that the Kansas Second Amendment Protection Act, which passed in 2013, says firearms, accessories and ammunition manufactured and kept in Kansas are exempt from federal gun control laws. So basically one law is fighting another law. A citizen would then be left to assume that as long as the state law was being followed, the state would stand up to defend that citizen against the federal government if an issue ever arose. This is perhaps similar to how citizens in Colorado and Washington can smoke pot even though it’s against Federal Law.
Of course, this creates an opportunity for a host of problems if the feds attempt to push. For instance, law enforcement officials could get in trouble for trying to arrest federal agents who attempt to arrest citizens attempting to follow the state law. But then this means that either 1) Kansas law is irrelevant and Kansas law makers and enforcers are entirely inept or 2) Kansas law is the law of Kansas and backed by the power of Kansas law makers, law enforcers and the Constitution. Actions speak louder than words. So which is it? The Federal Government would like you to believe that THEY have the power, but that’s not true – that is unless the state decides not to back up their guarantees.
The Tenth Amendment states clearly: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” This means that if it’s not in the Constitution, it’s a State issue or an individual’s issue. Chief Justice Marshall wrote in Marbury v. Madison that “A Law repugnant to the Constitution is void.” This means that if you make a law that contradicts the Constitution, it’s invalid and unenforceable. And of course, the Second Amendment itself states that the right of the people to keep and bear Arms, shall not be infringed.
If that wasn’t clear enough, understand that even the Kansas Attorney General Derek Schmidt recently 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 the two men convicted of violating the federal firearms law. Seems like the Constitution, the A.G., Legal Precedent and state law itself are all on the side of Cox and Kettler. Now, considering marijuana laws in places like Colorado and Washington, and how the Federal Government is staying as far away from that as possible, it becomes clear that the 10th Amendment rules… right?
According to court documents, Cox advertised his business as a silencer maker despite not having the federal licenses, and mishandled owning and selling suppressors as he didn’t pay special tax or register the items in accordance with the National Firearms Act. Kettler was named for the purchase of a gun silencer from Cox. Again, neither of these are a crime in Kansas. Yet, jurors returned eight guilty verdicts against Cox under the National Firearms Act for illegally making and marketing unregistered firearms, and Kettler was found guilty on one count of possession of an unregistered gun silencer. So what in the world is going on here?
As it turns out, Bill Clinton appointed U.S. District Judge J. Thomas Marten, a federal judge for the United States District Court for the District of Kansas and a native Kansan, told jurors that what Kettler believes in regard to the law is not necessarily the law. Not necessarily? Let’s clear this up. A “law” is a rule that a particular community recognizes as regulating the actions of its members. Kansas Representatives passed a law with the support of their constituents and it was signed off by the Governor. Those constituents abide by those rules as they do with any other rule imposed upon them. It’s clearly a law; there is no “not necessarily” about it and the law is pretty clear as detailed out in Kansas Second Amendment Protection Act K.S.A. 2014 Supp. 50-1201 through 50-1211. The purpose of that law is to stop elements of the National Firearms Act from being enforcement in Kansas. Of course, Marten is a federal judge and felt it necessary to enforce federal law. Marten said he can’t change the law at this level.
Now, I’m not a lawyer, but I do know that fundamental errors that are unfair to a defendant and can’t be corrected by appropriate instructions to the jury is grounds for a mistrial. There appears to be a series of errors that were unfair to the defendants in this case, including the judge falsely instructing the jury on the “law”. Wouldn’t a mistrial be applicable here?
I want everyone to understand that according to Kansas State Law, it is actually a felony for the federal government to enforce Federal Firearms Laws in Kansas. This means that those who arrested Cox and Kettler, those who participated in their incarceration, and in this case, even the Judge who presided over the case are all participating in a felony according to the state. Of course, they are also participating in a series of other crimes to include false arrest, false imprisonment, harassment, and of course, blatant violations of the Second, Fourth, Ninth, and Tenth Amendments of the United States Constitution. Ironically, Judge Marten told jurors the case would likely be appealed and that he anticipates that the Supreme Court might eventually review it. In my opinion, it should have never come this far.
Now, an argument will undoubtedly be made concerning the Supremacy Clause, which some say declares that federal law is supreme and gives final power to interpret the Constitution to federal courts, not state legislatures. However, that’s not entirely accurate. That clause states that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
This doesn’t mean that the Feds can just make laws and take over, because again, ANY law (including the one the Feds make) that is repugnant to the Constitution is null and void. What the clause is saying is that states cannot choose to disobey treaties or laws that are made in the quest to fulfill the promises of the Constitution. But that’s another problem, the Constitution doesn’t say anything about the Federal government having the power to treat Unalienable Rights as though they were privileges, yet here we are. Does anyone need a law degree to figure this one out? And if I am somehow wrong here, then why are the Feds not lining up to deal with marijuana shops, pot-heads and government officials that facilitate sanctuary cities? See the problem now?
Shame on the Sheriff for not rescuing Cox and Kettler. Shame on law enforcement for not arresting the agents who arrested Cox and Kettler in the first place. Shame on the jail system for keeping them locked up. Shame on the jury for their constitutional ignorance and pandering to the Federal Government over that of their own. Shame on Judge Thomas Marten who refused to see the injustice against his fellow Kansans and help to protect them and shame on all who remain apathetic to the problem.
What kind of faith can a people have in the rule of law, when by following the rule of law, you can be incarcerated? What faith can a people have in law enforcement officials that selectively enforce laws or arrest innocent people knowing damn well that the state law was being followed? And what faith can a people have in the justice system, when that justice system turns their backs on those who followed the rule of law in good faith in the first place? I don’t know who or what I’m more frustrated with; the judge, the weakness of the law, or the law enforcement officials who carried out the arrests. If the judge, federal government, or law enforcement agencies that decided to go after Cox and Kettler really had such a big problem with what Cox and Kettler were doing, why didn’t they go after the Kansas law makers who told them it was okay?
The case of United States of America v. Shane Cox and Jeremy Kettler shows (once again) the government’s blatant hypocrisy (on all levels) and the weakness of those who have sworn to protect the Constitution. We should all be ashamed. Remember: The Constitution hasn’t failed any of us. Instead, those who have sworn an oath to uphold and defend the Constitution but still commit unconstitutional acts are the ones who have failed us. They have not only failed us, but they have failed the Constitution.
All that being said, I would like to thank Kansas Attorney General Derek Schmidt for your post-trial brief defending the constitutionality of the KSAPA and for your request that a federal judge dismiss the criminal charges against Cox and Kettler. However, this is simply not enough. It’s great that you sent a letter, but someone needs to send a message. People in government and law enforcement have committed a felony as defined by Kansas State law. Why are those people not in handcuffs? What makes those who broke that law any better than Curtis Allen, Gavin Wright or Patrick Eugene Stein? Why are the people responsible not being arrested and charged? This is simply unacceptable. A consorted effort by both law makers and law enforcement should be underway to rectify this immediately. Nobody should have their freedoms threatened when they were following the laws put forth by their own government.
The question Kansans needs to ask themselves is whether Kansas is going to go on being the state that breeds people like Dwight Eisenhower, Amelia Earhart, Elizabeth P. Hoisington, Lewis William Walt or even Bernard W. Rogers, or is Kansas now going to be the state that begins to hire people like Horatio Gates; people willing to roll over, stab their own people in the back or run away because a few turncoats forgot where their loyalties should lie? We should be standing up for justice. We should be standing up for our fellow citizens who are clearly victims. Yes, this case will be appealed, but it will go to a higher federal court. How do you think that will end?
Yes, when the law originally passed, U.S. Attorney General Eric Holder sent Brownback an official letter stating that the legislation directly conflicts with federal law and is, therefore, unconstitutional. He said it… not a court. He said that “Under the Supremacy Clause of the United States Constitution, Kansas may not prevent federal employees and officials from carrying out their official responsibilities.” This was never reviewed by the courts. Furthermore, Eric Holder isn’t our government, he’s not a judge, he is not “the people“, he’s not a Kansan and he’s not even in power anymore. Who is in charge here?
Answer: The People of Kansas, the Second, Fourth, Ninth, and Tenth Amendments of the United States Constitution and the Second amendment protection act. K.S.A. 2014 Supp. 50-1201 through 50-1211.
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