Explore The NRA Universe Of Websites

When Laws Collide: Federal Preemption and State Firearm Freedom Acts

Friday, February 3, 2017

When Laws Collide: Federal Preemption and State Firearm Freedom Acts

For the last several years, so-called “Firearms Freedom Acts” or “Second Amendment Preservation Acts” have attracted a lot of attention. Such legislation, passed or introduced in various states, seeks to make federal laws regarding firearms inapplicable to firearms and ammunition produced, sold, and used exclusively within the state’s borders on the premise that Congress’s power to regulate commerce among the states doesn’t reach purely in-state activities.

Officials at the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) have generally taken the position that these state laws are invalid because they conflict with federal firearms laws and that federal law supersedes the state laws, with the result that the provisions of the federal Gun Control Act and the National Firearms Act continue to apply.

In a lawsuit involving the Montana Firearms Freedom Act (MFFA), the ATF had advised that a proposal to manufacture and sell a .22 caliber rifle in-state in reliance on the MFFA would still require the manufacturer to first obtain approval from the federal government and otherwise comply with federal laws on licensing, record-keeping and other restrictions. In 2013, the United States Court of Appeals for the Ninth Circuit concluded that the federal law preempted, or took precedence over, the state legislation because Congress’ commerce power extended to regulating firearms initially manufactured and sold exclusively intrastate, based on the substantial effect this activity could have on the interstate market in guns. Montana Shooting Sports Ass’n v. Holder, 727 F.3d 975 (9th Cir. 2013).

Another federal court has since considered such state laws, this time in light of the National Firearms Act (NFA), a federal tax law that requires registration and payment of a $200 tax for “firearms” (including suppressors). The NFA makes it an offense to possess, make, receive, or transfer a “firearm” covered by the Act without having registered or paid the required tax.

In 2013, Kansas enacted its Second Amendment Protection Act (SAPA) which declares, in part, that any firearm or “firearm accessory,” including a suppressor, which is made in Kansas and which remains in Kansas, “is not subject to any federal law … under the authority of Congress to regulate interstate commerce.” Shane Cox, a Kansas gun store operator, made and sold unregistered suppressors, relying on the state law; one of these suppressors was sold to Jeremy Kettler. 

Both men were charged with violations of the NFA, including the unlawful possession and transfer of an unregistered firearm – felony offenses with penalties of up to ten years in jail, significant fines, a forfeiture of firearms involved, and a loss of firearm rights. Last fall, a jury convicted Cox and Kettler on some, but not all, of the counts, with sentencing anticipated this month. 

Addressing the defendants’ legal challenges to the NFA, Judge J. Thomas Marten of the U.S. District Court in Kansas had earlier held that SAPA and Kettler’s reliance on the state law provided no defense, because “Kansas officials and representatives are not responsible for interpreting or enforcing the law defining this offense,” and that it was “not reasonable to rely upon representations about the validity of federal law from officials who have no authority over federal law.” In a decision released this week regarding a motion to dismiss the charges, Judge Marten upheld the NFA as a valid and constitutional law. “The defendants argue that Kansas’s adoption of the Second Amendment Protection Act … somehow rendered the National Firearms Act unconstitutional,” but “the Constitution could not be clearer on one point: if the National Firearms Act is a valid exercise of Congressional taxing power, and if it does not infringe on rights granted in the U.S. Constitution, then it is the ‘supreme Law of the Land,’ regardless of what SAPA says.” 

Judge Marten noted that the “case has generated significant interest within the District of Kansas and beyond,” and it’s likely that the matter will be further appealed.

Until there’s a final resolution on the scope and effect of these state laws, though, gun owners need to understand there’s a very real potential for legal jeopardy.

TRENDING NOW
Court's Commonsense Conclusion: "There Was a Gun" Isn't Enough to Justify Issuing a Restraining Order

Second Amendment  

Friday, May 19, 2017

Court's Commonsense Conclusion: "There Was a Gun" Isn't Enough to Justify Issuing a Restraining Order

The Supreme Court of North Dakota confirmed this week that simply possessing a handgun while on one’s own private property cannot support a finding of "disorderly conduct" under the state’s disorderly conduct restraining order law. ...

Illinois: House Committee Passes Bill to Close Local Gun Dealers

Tuesday, May 16, 2017

Illinois: House Committee Passes Bill to Close Local Gun Dealers

The House Judiciary Committee passed Senate Bill 1657 by a 7-6 vote.

Maryland: Governor Hogan Signs Apprentice Hunting Legislation into Law

Thursday, May 4, 2017

Maryland: Governor Hogan Signs Apprentice Hunting Legislation into Law

Today, Maryland Governor Larry Hogan signed House Bill 1427 into law.

Washington: NRA Files Amicus Brief in Challenge to Kitsap County Anti-Gun Ordinance

Monday, May 22, 2017

Washington: NRA Files Amicus Brief in Challenge to Kitsap County Anti-Gun Ordinance

Last week, attorneys on behalf of the NRA filed an amicus brief in Kitsap County v. Kitsap Rifle and Revolver Club (Kitsap II), the case which challenges Kitsap County’s firearm discharge ban and range licensing scheme.  Kitsap Rifle and ...

Nevada: Governor Sandoval Signs AB 118!

Monday, May 22, 2017

Nevada: Governor Sandoval Signs AB 118!

Today, May 22, Governor Brian Sandoval signed important pro-gun legislation, Assembly Bill 118, into law.  AB 118, sponsored by Assemblyman Skip Daly, will allow members of the military and those who have received an honorable ...

California: AB 424 Passes Assembly - Appropriations Committees to Consider Suspense Items

Tuesday, May 23, 2017

California: AB 424 Passes Assembly - Appropriations Committees to Consider Suspense Items

Friday, May 26th is the deadline for the fiscal committees to pass bills to the floor from the chamber of origin.  On Thursday, May 25, the Senate AppropriationsCommittee is scheduled to consider Senate Bill 464 and Senate Bill 497. ...

Kansas: Senate Committee Passes Gun Free Zone Legislation, Again

Tuesday, May 23, 2017

Kansas: Senate Committee Passes Gun Free Zone Legislation, Again

Last week, the Senate Committee of the Whole referred an amended version of House Bill 2278 back to the Senate Ways and Means Committee.

Abbott Signs Senate Bill 16, Bringing Texas License To Carry Fees Down to Among Lowest in Nation

News  

Thursday, May 25, 2017

Abbott Signs Senate Bill 16, Bringing Texas License To Carry Fees Down to Among Lowest in Nation

The National Rifle Association Institute for Legislative Action (NRA-ILA) today applauded Texas Gov. Greg Abbott for signing into law NRA-backed legislation that will make license to carry fees in Texas among the lowest in the ...

California: Don’t Miss our May 25th Webinar to Discuss the Newest DOJ Draft “Assault Weapons” Regulations

Wednesday, May 24, 2017

California: Don’t Miss our May 25th Webinar to Discuss the Newest DOJ Draft “Assault Weapons” Regulations

Tomorrow, Thursday, May 25, at 12:00 pm (PT), NRA’s legal team will be hosting a free webinar to discuss the recently submitted “assault weapon” regulations.   

Alabama: Legislature Adjourns Sine Die

Tuesday, May 23, 2017

Alabama: Legislature Adjourns Sine Die

Last Friday, May 19, the Alabama Legislature adjourned sine die.  During this session, Senate Bill 24, the constitutional/permitless carry bill, passed the Senate but failed to make it to the House floor for a vote ...

MORE TRENDING +
LESS TRENDING -
NRA ILA

Established in 1975, the Institute for Legislative Action (ILA) is the "lobbying" arm of the National Rifle Association of America. ILA is responsible for preserving the right of all law-abiding individuals in the legislative, political, and legal arenas, to purchase, possess and use firearms for legitimate purposes as guaranteed by the Second Amendment to the U.S. Constitution.