Secretary of State Kris Kobach takes more than academic interest in the U.S. District Court trial Tuesday of two men who placed faith in Kansas lawmakers depicting a 2013 law as a shield from federal prosecution for anyone owning firearms made, sold and kept within Kansas.
Kobach, a former law professor who co-authored the Second Amendment Protection Act, said the case built by U.S. Department of Justice attorneys against Shane Cox and Jeremy Kettler was on shaky ground.
“This is a perfect example of a prosecution that should never occur,” Kobach said. “These are individuals who are law-abiding gun owners. Why would the Justice Department be going after somebody like this?”
The statute developed by Kobach, embraced by 80 percent of the Legislature and signed into law by Gov. Sam Brownback will be indirectly put to a test when court convenes in Wichita.
A grand jury indictment unsealed in 2015 and updated this year accused Cox, owner of Tough Guys gun store in Chanute, of multiple violations of federal firearms law.
He is accused of illegally making and marketing firearms, specifically sound suppressors. Prosecutors identified Kettler, a disabled U.S. Army veteran, as a Tough Guys client who acquired a silencer from Cox and filmed a live-fire test of the gear.
Both defendants unsuccessfully argued for dismissal of charges based on a belief their activities were legal under Kansas law established by the Second Amendment Protection Act.
The statute purportedly exempts from federal gun-control laws the firearms, accessories and ammunition manufactured commercially or privately in Kansas and kept within the state’s borders. The Kansas act made it a felony for a federal official to enforce certain directives of Congress regarding firearms.
“For believing and following the laws of the state of Kansas, I now find myself wrongfully accused in federal court,” said Kettler, who served in Iraq and Afghanistan before being honorably discharged. “The whole thing is ridiculous.”
Kettler said attempts were made to secure help from elected Kansas officials who exalted in new freedom given traction by the Second Amendment Protection Act. Kettler had hoped someone would step forward to deflect the indictment, but the only advice he received was from the governor’s office, which suggested he seek legal counsel.
“I don’t need any more legal counsel,” Kettler said. “I need to know why the state is setting up its citizens to be prosecuted by the United States of America. All Kansas lawmakers who passed this law are completely missing in action.”
In October 2015, Kobach said in a letter to Kansas Attorney General Derek Schmidt that he would assist Cox in shaping a response to the indictment. Kobach formally requested Schmidt, in his role as attorney general, “appear as defense counsel” for Cox in federal court or file a civil lawsuit seeking an injunction to stop federal enforcement of actions that violated the state’s Second Amendment Protection Act.
Schmidt told the Republican secretary of state the attorney general’s office wasn’t authorized under Kansas law to serve as Cox’s criminal defense attorney.
“By law,” Schmidt said, “the Kansas attorney general represents the state of Kansas — not private criminal defendants.”
Schmidt informed Kobach that he would enter the Cox-Kettler fray only if constitutional validity of the Second Amendment Protection Act were contested in the federal case. His involvement would address defense of Kansas statute, Schmidt said, but not defense of an individual against federal criminal charges.
In an interview, Schmidt said he sent correspondence to U.S. District Judge Thomas Marten, who has handled the Kettler-Cox proceedings, indicating the state of Kansas would expect to be notified if constitutionality of the Second Amendment Protection Act were to be tested as part of the trial.
“We didn’t,” Schmidt said. “It leads one to conclude the constitutionality of the Kansas statute is not being contested.”
Dale Chaffee, who is part of the Kansas Chamber of Liberty political action committee, drove from Johnson County to Topeka in a bid to convince Kobach and Schmidt to dig in their heels on behalf of the two defendants.
Much of his ire was directed at the state’s attorney general. He also called upon Sedgwick County officials to flex their muscle as the trial convened in federal court.
“There appears to be a radical dereliction of duty by Attorney General Derek Schmidt,” he said. “The Sedgwick County sheriff should be there with 400 deputized officers.”
When the Election Day trial is initiated, the attention of many Kansas politicians who cheered the Second Amendment Protection Act is likely to be drawn away from the courtroom when Cox and Kettler stand accused of felony offenses punishable by a decade in prison.
Brownback, who also signed a bill allowing concealed carry of firearms without a permit in Kansas, was among those who expressed appreciation to the 2013 Legislature for adoption of the federal gun-law nullification measure. It was approved 35-4 in the Senate and 96-24 in the House, and the governor hailed support from Republican and Democratic legislators.
One of the bill’s biggest champions, Rep. Brett Hildabrand, R-Shawnee, called it the “strictest Second Amendment protection law in the nation,” promised it would stand up to constitutional challenge and suggested the law would encourage expansion of firearm businesses in Kansas.
Sen. Tom Hawk, a Manhattan Democrat, was among lawmakers who opposed Senate Bill 102. He said the final version of the Second Amendment Protection Act might have bolstered the political careers of sponsors, but it could place Kansans in legal jeopardy.
“One of my major concerns was we could put our citizens in a conflict between the federal and state governments,” he said. “We were just putting some of our local citizens in harm’s way.”
A day after the Second Amendment law took effect, then-U.S. Attorney General Eric Holder advised Brownback by letter that Kansas law criminalizing federal enforcement of gun laws was unconstitutional.
“In purporting to override federal law and criminalize the official acts of federal officers, Senate Bill 102 directly conflicts with federal law and is therefore unconstitutional,” Holder said.
The U.S. attorney general said the Bureau of Alcohol, Tobacco, Firearms and Explosives; the FBI; the Drug Enforcement Administration; and the U.S. attorney’s office in Kansas would continue to enforce federal firearms law and regulations.
He said the Justice Department would engage in litigation if necessary to prevent Kansas from interfering with activities of federal officials enforcing federal law.
“With respect to any litigation,” Kobach said in response, “we will happily meet Mr. Holder in court.”
Brownback replied to Holder with a letter stating the bill’s endorsement by liberals and conservatives clearly demonstrated the “sovereign will” of Kansans. Citizens of the state have repeatedly affirmed a commitment to protecting the fundamental right to bear arms, he said.
The Brady Center to Prevent Gun Violence filed a lawsuit in 2014 aimed at striking down the law declaring Kansas-manufactured and -possessed guns exempt from federal regulations. The suit named Brownback and Schmidt as defendants.
“Kansans’ gun nullification law is not just bad public policy, it is patently unconstitutional,” said Jonathan Lowy, director of the Brady Center’s Legal Action Project in Washington, D.C. “Just as southern states were not allowed to opt-out of federal civil rights laws, the constitution does not allow Kansas or any other state to nullify federal gun laws that protect Kansans and all Americans from gun violence.”
Schmidt, who requested $225,000 from the Legislature to fight the gun-law challenge, said the suit was “obviously political.” Brownback described the litigation as part of Democratic President Barack Obama’s campaign to undermine state sovereignty on gun issues.
The case was dismissed in U.S. District Court by Judge Julie Robinson, who declared the Brady Campaign lacked standing to raise the constitutional question in Kansas.