Posted on 05/04/2013 12:46:55 PM PDT by neverdem
The Obama administration is on a collision course with the state of Kansas over a new law that claims to nullify federal gun controls.
Attorney General Eric Holder has threatened litigation against Kansas over the law in what could the opening salvo of a blockbuster legal battle with national ramifications.
“This is definitely a case that could make it to the Supreme Court,” Kansas Secretary of State Kris Kobach said Friday afternoon. “There is nothing symbolic about this law.”
Kobach, a former constitutional law professor, helped craft the statute, which bars the federal government from regulating guns and ammunition manufactured and stored within Kansas state lines.
Scores of bills in at least 28 states have sought to provide similar exemptions. But the Kansas measure goes further than some, in that it would make felons of federal authorities who seek to enforce any federal “act, law, treaty, order, rule or regulation” in violation of the state law.
And unlike many of the gun bills that have stalled or fizzled in state legislatures around the country, the Kansas statute was actually enacted late last week
One day after the legislation known as S.B. 102 became law, U.S. Attorney Gen. Eric Holder sent a sharply worded missive to Kansas Gov. Sam Brownback calling the law unconstitutional.
“The United States will take all appropriate action, including litigation if necessary, to prevent the State of Kansas from interfering with the activities of federal officials enforcing the law,” Holder wrote to Brownback.
The Obama administration has made gun control a high-profile priority in the months since the shooting spree that left 20 children and six adults dead inside a Newtown, Conn., elementary school. But the effort has been far from successful.
In January, Obama announced nearly two-dozen executive actions designed to reduce gun violence. But the president’s authority is limited, and legislation to advance the White House’s big-ticket goals — including an assault weapons ban and universal background checks — has suffered bitter defeats in Congress.
At the same time, dozens of state nullification bills have cropped up from Alaska to Vermont, as gun rights proponents seek to send a message to Washington about new gun controls.
None has brought the kind of reproach that the administration dealt to Brownback.
“In purporting to override federal law and to criminalize the official acts of federal officers, S.B. 102 directly conflicts with federal law and is therefore unconstitutional,” Holder wrote, citing the Constitution’s Supremacy Clause.
UCLA law Professor Adam Winkler, an expert in the politics of gun control, agreed with the government’s position. He said the Kansas law is unconstitutional in that it seeks to nullify valid federal laws regulating firearms sales.
But Winkler said the aggressive response reflects a shift following relative silence after previous attacks on federal gun controls.
“Clearly, things have changed in the White House. Now the administration is not running away from a gun fight,” he said. “The administration is going after Kansas because Obama's push for gun laws has accelerated the states rights extremism on guns.”
Whatever the motivation, Holder’s response did not surprise proponents of the law. Kobach, a chief advisor to former Attorney Gen. John Ashcroft during the George W. Bush administration, said the bill was written carefully, and in anticipation of litigation.
The law challenges the scope of federal government authority under the Interstate Commerce Clause, in essence contending that Washington has no right regulate guns that were made in Kansas and never cross state lines.
Practically speaking, there are no guns that fit that definition as of yet. But Kobach said it was likely that some small outfits seeking protection from federal regulations might begin to manufacture firearms stamped “made in Kansas.” After that, it would be incumbent on the buyers to keep the guns inside Kansas, or else be subject to federal regulations.
Kobach said he had every expectation that the law would be enforced, including the provision requiring criminal prosecution of federal authorities who violate it. The law stipulates that violations would not trigger arrests of FBI agents or U.S. Marshals. Cases would be prosecuted on a complaint-and-summons basis, according to the law.
“Bear in mind,” Kobach said. “The first move would be the federal government’s.”
In a letter sent to Holder this week, Brownback responded to Holder’s warning with a defense of the law. The Republican governor noted that it passed with bipartisan support and that “the right to keep and bear arms is a right that Kansans hold dear.”
“The people of Kansas have clearly expressed their sovereign will,” Brownback wrote. “It is my hope that upon further review, you will see their right to do so.”
This new Kansas law could reopen Wickard v. Filburn.
I always wanted to live in Kansas.
Which is a ruling that definitely needs reopening.
Just put “Kansas” in as a keyword and it pings to me. I don’t know how that works and no, I’m not volunteering.
So what guns are manufactured in Kansas?
Good luck with that. Clarence Thomas is the only SC Justice to call Wickard unconstitutional. The only justices to vote against fedgov in the Raich case were Thomas, O'Connor and Rehnquist. Even Scalia gave his full-throated support to Wickard
I wish it were not so, but Wickard is not going anywhere.
SCOTUS had better be careful if this gets to them. Any perceived erosion of the 10A and States Rights just might be the straw that breaks the camel’s back.
Hmmmm. How does one become UCLA “an expert in the politics of gun control . . . ?” Maybe by clerking in the 9th circuit, and being a child of Hollywood elite? Or perhaps co-authoring a “moderate” view of the 2nd Amendment? Hmmm. An expert in the politics.
I’ll take Kobach in court any day with the 2A and the Supremacy Clause.
I'm guessing a rapidly increasing number of them in the near future.
There are some small custom builders.
This new Kansas law could reopen Wickard v. Filburn.Which is a ruling that definitely needs reopening.
If that was a motion, I second it.
By who? And I'm honestly curious because I'm trying to figure just what Holder has his shorts in a twist over. No new gun laws have been passed, and if you listen to the speakers at the NRA convention none are likely to be. There are no restrictions on assault rifles or magazine sizes, so even if those were made in Kansas there isn't any law against it. Is it the clause that says any federal law in violation of the Second Amendment is null and void in Kansas? Why should Holder give a crap about that? Kansas doesn't decide what's constitutional and what isn't, and Kansas isn't threatening to arrest any federal official enforcing a federal law that doesn't involve a gun manufactured, sold, and owned in Kansas. So that's a total non-issue. If Holder had been smart his reaction to the Kansas legislation should have been "Yeah, whatever" and let it fade into obscurity. But if this administration isn't smart and if it's good at one thing it's drawing lines in the sand that it promptly has to backtrack on.
Could this mean that full auto would be legal?
Be still my heart...
Hmm... what way might this go? The feds might try to ignore the Commerce Clause bit and go straight to the part that makes it illegal for the federales to enforce U.S. law in Kansas. We are all familiar with the way a Dem/lib government, and the current SCOTUS, bend into contortions to get a Dem law passed and through a judicial review.
And supressors too, if someone in Kansas decides to start manufacturing them and the items stay in Kansas.
The way I'm reading it is if such a gun was manufactured, sold, and owned in Kansas then yes. Likewise sawed-off shotguns. It can't be something like an AR-15 or AK-47 manufactured elsewhere and converted to full auto in Kansas. I think it would have to be made from scratch.
But if you read the legislation it's only illegal if the feds try to enforce a gun control law on a firearm made, sold, and owned in Kansas. The state claims that any other federal laws that violate the Second Amendment are null and void, but that and a couple of bucks will get you a cup of coffee. They aren't threatening to interfere with those.
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