On April 16, 2013, Governor Samuel Brownbeck approved Senate Bill 102; the Second Amendment Protection Act. When the Governor signed the bill, much of the nation was calling it the strictest Second Amendment protection law to date. The Legislative Summary describes the bill as follows:
“First, the bill excludes from federal regulation any personal firearm, firearm accessory, or ammunition manufactured commercially or privately and owned in Kansas. The bill provides that for as long as any such personal firearm, firearm accessory, or ammunition remains within the borders of Kansas, it is not subject to any federal law, regulation, or authority.
Second, the bill prevents any federal agent or contracted employee, any state employee, or any local authority from enforcing any federal regulation or law governing any personal firearm, firearm accessory, or ammunition manufactured commercially or privately and owned in Kansas, provided it remains within the borders of Kansas. In the process of a criminal prosecution, the bill precludes any arrest or detention prior to a trial for a violation of the Act.
Finally, the bill allows a county or district attorney or the Attorney General to seek injunctive relief in court to enjoin certain federal officials from enforcing federal law regarding a firearm, a firearm accessory, or ammunition that is manufactured commercially or privately and owned in the state of Kansas and that remains within the borders of Kansas.”
But the law is not just for proponents of the right to bear arms; the new law is a battle between the rights of state and federal government. In a nutshell, the basis of the legislation is found in the law’s text: “Any act, law, treaty, order, rule or regulation of the government of the United States which violates the Second Amendment to the Constitution of the United States is null, void and unenforceable in the state of Kansas.”
Surely, we all can remember back to our days of Constitutional Law, when we came across the Tenth Amendment only to be disheartened that it was all for naught. In fact, the premise of many law school exams was the challenge to usurp the state powers through the many enumerated powers of the federal government. And you could always rely on the good old Commerce Clause. So don’t be shocked when that is the same power the Federal Government will use to shoot down the Second Amendment Protection Act.
A federal appeal court has already used the Commerce Clause to rule against a Montana law very similar to the Kansas law. In late August, the 9th U.S. Circuit Court of Appeals knocked down the 2009 Montana Firearms Freedom Act (MFFM). Montana Shooting Sports Association v. Holder, 10-36094 (August 23, 2013).
The MMFA, similar to Kansas legislation, limits federal law and federal regulation for firearm or ammunition that is manufactured and remains within the state. Gary Marbut, a Montana business owner that manufactures shooting range equipment for law enforcement agencies and is involved in a variety of gun-related organizations and activities, including service as the president of the Montana Shooting Sports Association, wants to manufacture and sell a .22 caliber rifle. Many Montana citizens have agreed to purchase the rifle, named “Montana Buckaroo”, but only if it is not manufactured by a federal firearms licensee.
As a result of a letter that Marbut received from the Alcohol, Tobacco, Firearms and Explosives (“ATF”), which stated the MFFA conflicts with federal firearms laws, and that federal law supersedes the Act and continues to apply, Marbut filed for declaratory and injunctive relief. The federal district court adopted the recommendations of a federal magistrate judge and held that the plaintiffs, Marbut and Montana Shooting Sports Association, had no standing and had failed to state a claim. The plaintiffs appealed to the 9th Circuit Court of Appeals.
The 9th Circuit held the plaintiffs had standing, but failed to state a claim. Relying on 9th Circuit precedent the Court held that Congress’s commerce power extends to the manufacture and sale of the Montana Buckaroo. But the 9th Circuit did not limit its holding to the ntana Buckaroo. Instead, much to the disdain of the dissent, the Court went a “step further” and passed upon the validity of the MFFA. In doing so, the majority commented that Marbut intends to manufacture the firearm under the MMFA and held “even if Marbut never sells the Buckaroo outside of Montana, Congress could rationally conclude that unlicensed firearms would make their way into the interstate market. This result does not change because the Buckaroo will bear a “Made in Montana” stamp to distinguish it from firearms that may be sold in the interstate market.” So, as simple as that, the 9th Circuit shot down the MFFA.
Does this mean the MFFA out of ammunition? Not yet. After all, the only way to overcome years of Commerce Clause precedent is to get to the U.S. Supreme Court somehow. Unfortunately, based on precedent, if the MFFA gets to the Supreme Court, it will likely be shooting blanks, and it appears that the Second Amendment Protection Act is just a sitting duck.