A federal judge spared two Kansas men convicted of federal firearms violations from prison after taking into account Monday their mistaken belief that a Kansas law can shield from federal prosecution anyone owning firearms made, sold and kept in the state.
The sentence handed down by U.S. District Judge J. Thomas Marten still leaves intact the federal felony convictions against Shane Cox and Jeremy Kettler, both of Chanute.
Cox, 45, was given two years of supervised probation, and Kettler, 28, got one year of supervised probation.
Jurors in November returned eight guilty verdicts against Cox, the owner of the now-closed Tough Guys gun store in Chanute, under the National Firearms Act for illegally making and marketing unregistered firearms, including a short-barreled rifle and gun silencers.
Kettler was found guilty on one count of possession of an unregistered silencer.
As convicted felons, neither man is allowed to own or possess a firearm.
The Kansas Second Amendment Protection Act, which passed in 2013, says firearms, accessories and ammunition manufactured and kept within the borders of Kansas are exempt from federal gun control laws.
Marten told the two men that while state law is not available to them as a defense, it is a factor he can take into account at their sentencing.
“I am satisfied you both had a good faith belief that you are protected by that statute,” Marten said.
In addition to Kansas, similar firearms nullification laws have been signed into law in Alaska, Arizona, Idaho, Montana, South Dakota, Tennessee, Utah and Wyoming, according to Everytown for Gun Safety, which advocates common-sense gun control laws.
“You have to understand where we are coming from: The federal government is not omnipotent. … They have called everybody’s bluff,” said state Rep. Mike Houser, R-Columbus.
Cox and Kettler told the judge after learning of the proposed sentence that they appreciated him not sending them to prison. Cox also said he was “glad we have Trump as president,” eliciting laughter from the packed courtroom of about 60 supporters.
Kettler said after the hearing that he plans to appeal. He said the state law that got him in trouble still stands and could also confuse others. The state should get with the federal government and “figure out who has the right” to control guns in Kansas, he said.
Defense attorneys contended that the National Firearms Act – a part of the Internal Revenue code enacted under Congress’ power to levy taxes – is unconstitutional. They also argued that the federal law violated the Second Amendment as well as 10th Amendment state rights protections of the U.S. Constitution.
“Somebody had to take one for the team,” Cox said. “I was doing it out in the open; it wasn’t a secretive thing.”