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
Beto Going All-In on Confiscation

News  

Sunday, September 15, 2019

Beto Going All-In on Confiscation

Democrat Presidential candidate Beto O’Rourke continues to struggle to gain any sort of traction for his campaign. With some polls putting him in 10th place, and his average sitting around 7th, some might say that it is desperation ...

Tell Your Lawmakers: No Semi-Auto and Magazine Ban!

News  

Sunday, September 15, 2019

Tell Your Lawmakers: No Semi-Auto and Magazine Ban!

The Democrat Party is now so aligned with gun control that every major candidate running for its 2020 presidential nomination recently appeared in a propaganda video produced by one of the nation’s most active firearm prohibition groups. ...

NASCAR Takes a Hard Left

News  

Friday, August 30, 2019

NASCAR Takes a Hard Left

After decades of NASCAR drivers literally turning left for hours every race day (road course races excluded, of course), the governing body appears to be taking a figurative left turn, politically. K-Var, a retailer in outdoor and ...

House Democrats Continue Unprecedented Push for More Gun Control

News  

Sunday, September 15, 2019

House Democrats Continue Unprecedented Push for More Gun Control

As was continually threatened while Congress was on its six-week Summer break, House Democrats hastily convened a hearing on Tuesday to promote their latest batch of anti-gun bills.  The House Judiciary Committee’s markup of three bills, ...

NRA Files Suit Against San Francisco for Violating First Amendment

News  

Sunday, September 15, 2019

NRA Files Suit Against San Francisco for Violating First Amendment

On September 3, the San Francisco Board of Supervisors smeared millions of law-abiding Americans by unanimously adopting a resolution that designated NRA a “domestic terrorist organization.” Less than one week later, on September 9, NRA filed a federal lawsuit ...

Playing Games with Numbers

News  

Sunday, September 15, 2019

Playing Games with Numbers

Stanford Law Professor John Donohue and Theodora Boulouta, a Stanford undergrad, wrote an opinion piece in the New York Times that claims their new research shows the 1994 “assault weapons” ban really did work.  Their finding is ...

San Francisco Board of Supervisors Declares NRA a “Domestic Terrorist Organization”

News  

Sunday, September 8, 2019

San Francisco Board of Supervisors Declares NRA a “Domestic Terrorist Organization”

On September 3, the San Francisco Board of Supervisors unanimously passed a resolution, “declaring that the National Rifle Association is a domestic terrorist organization and urging other cities, states, and the federal government to do the same.”The resolution was ...

California: 2019 Legislative Session Adjourns

Sunday, September 15, 2019

California: 2019 Legislative Session Adjourns

The California Legislature has adjourned the 2019 session resulting in the final passage of AB 12, AB 61, AB 879, AB 893, AB 1254, AB 1297, AB 1669, SB 61 and SB 172 which are now eligible ...

News  

Friday, September 13, 2019

NRA Statement on Texas Governor's Safety Action Report

The National Rifle Association released the following statement on Friday regarding Texas Gov. Greg Abbott's Texas Safety Action Report:   

Monday, August 19, 2019

Florida Alert! "Assault Weapons" Ban Amendment Bans ALL SEMIAUTOMATIC RIFLES AND SHOTGUNS

The so-called "assault weapons" ban that is proposed for a constitutional amendment to be on the 2020 Election Ballot bans the possession of: “any semiautomatic rifle or shotgun CAPABLE of holding more than ten (10) rounds ...

MORE TRENDING +
LESS TRENDING -

More Like This From Around The NRA

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.