TOPEKA – Sen. Caryn Tyson’s petition to President Donald Trump asks for the pardon of two Kansans convicted of felony firearm violations after they relied on a flawed 2013 state law designed to limit reach of federal restrictions on firearms, accessories and ammunition manufactured, sold and possessed in Kansas.
“They did get caught in a crossfire,” said Tyson, a Parker Republican and proponent of the constitutional right to bear arms. “We had two gentlemen who got caught up inadvertently.”
Ironically, the convictions of Shane Cox and Jeremy Kettler on felony charges in U.S. District Court prevent them from owning firearms. Their appeals have been exhausted, leaving presidential pardon as the last-gasp alternative.
To gain traction with the pardon request, Tyson sought signatures from members of the Kansas Legislature “in the interest of justice and fairness.” A letter accompanying the petition said the convicted men had no intent to circumvent federal law. Instead, the letter says, they relied on plain reading of state law and ended up ensnared in a constitutional feud borne of the conflict with federal firearm law.
The pivotal Kansas statute signed seven years ago by Gov. Sam Brownback declared firearms, ammunition and accessories, including silencers, that were made, marketed and kept in the state could be wholly governed by Kansas law. The bill earned bipartisan support — 130 of 165 senators and representatives voted for it. The measure also featured a provision allowing Kansas authorities to criminally charge federal law enforcement officers attempting to enforce certain U.S. gun laws in Kansas.
U.S. Attorney General Eric Holder informed Brownback at that time the new Kansas statute was unconstitutional and warned action would be taken by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, the FBI, the Drug Enforcement Administration and the U.S. attorney’s office to enforce federal firearms law and regulation.
Kris Kobach, among co-authors of the “nullification” statute and at that time the Kansas secretary of state, said the state law would withstand legal scrutiny. He declared: “We will happily meet Mr. Holder in court.”
Unfortunately, Cox and Kettler accepted the argument that Kansas’ Second Amendment Protection Act was constitutionally constructed. Cox was so confident he displayed text of the state law in his Tough Guys store in Chanute. Kettler, a U.S. military veteran, bought a homemade silencer from Cox.
Both were subsequently indicted on felony gun charges. Kansas Attorney General Derek Schmidt intervened in the case to argue in support of constitutionality of the Kansas statute, but not to argue on behalf of either defendant. In 2016, Cox was found guilty on eight counts of illegally manufacturing and marketing of firearms. Kettler was guilty on a single count of buying an unregistered silencer. Both were sentenced to probation.
Their convictions were upheld in 2018 by the U.S. Circuit Court of Appeals with judges noting the Constitution provided federal law was superior to state law. In June, the U.S. Supreme Court declined to hear appeals by Cox and Kettler. Basically, they had asked the appellate courts to conclude muzzle attachments that suppress the sound of a gunshot were covered by the Second Amendment to the U.S. Constitution.
Tyson said their remaining hope for reversing course would be if the men were pardoned by a president of the United States. It’s not clear whether the request could be processed before Trump leaves office in January or whether President-elect Joe Biden might be interested in taking up the issue.
“They thought they were within the law,” Tyson said. “I know that’s not an excuse.”
Tyson said part of the problem was the 2013 reform bill signed by Brownback altered statute in one of two places where amendment was necessary. She said that error was corrected in 2018 by the Legislature.
In addition, she said, the Kansas Senate passed a resolution urging Trump to pardon Kettler and Cox. The National Firearms Act applied to their federal court case requires registration of certain firearms, which includes silencers, grenades, machine guns and bombs.
Ed Klumpp, who represents three Kansas law enforcement organizations at the Capitol, said the state law at the core of the Kettler and Cox case was a clear violation of federal law. He said observers of the legal process should have anticipated consequences of Kansas going out on a legal limb.
“That whole thing was precipitated by an effort in the Legislature to more or less negate federal law in effect at that time,” Klumpp said.