Tensions are flaring between U.S. Attorney General Eric Holder and Kansas over a new state law shielding guns made in the state from federal regulation.
Holder recently wrote to Republican Gov. Sam Brownback, saying the new law conflicts with the U.S. Constitution by potentially putting federal authorities in a legal bind.
“Federal officers cannot be forced to choose between the risk of a criminal prosecution by a state and the continued performance of their duties,” Holder wrote in a letter dated April 26.
Holder threatened legal action against the state, saying the federal government would do what’s necessary to prevent Kansas from interfering with agents enforcing federal law.
The state is already bracing for litigation. State Attorney General Derek Schmidt has asked the Legislature for $225,000 for the next two years to defend the law.
Swept up in a states’ rights fervor, Kansas and Missouri were two of 31 states this year that considered bills to nullify federal gun-control laws discussed in the aftermath of the Newtown, Conn., shooting, according to the National Conference of State Legislatures.
“We are standing our ground,” said Patricia Stoneking, president of the Kansas State Rifle Association. “We are not only supporting the Second Amendment, but we’re supporting state sovereignty here.
“It is high time that this discussion take place.”
Kansas is believed to be the only state to enact such a law, although a similar measure is awaiting the signature of Alaska’s governor.
The Missouri House passed a bill in late April that made it a felony for federal officials to enforce federal gun laws. It now awaits action in the Senate.
At issue in Kansas is a bill Brownback signed April 17 called the “Second Amendment Protection Act.” It passed overwhelmingly with bipartisan support.
The law makes it illegal for federal authorities to apply federal laws to firearms commercially or individually built and owned inside Kansas, as long as the gun stays in the state. The law also protects ammunition and gun accessories from federal law.
Federal agents violating the law would face the lowest-level felony in Kansas, carrying a prison sentence ranging from five to 13 months.
Yet Holder said that under the Supremacy Clause of the U.S. Constitution, Kansas cannot prevent federal law enforcement from carrying out its responsibilities.
“And a state certainly may not criminalize the exercise of federal responsibilities,” Holder wrote.
Brownback responded to Holder on Thursday with a letter, saying the law reflected the will of Kansans to protect the sovereignty of their state.
“The right to keep and bear arms is a right that Kansans hold dear,” Brownback wrote. “The people of Kansas have repeatedly and overwhelmingly reaffirmed their commitment to protecting this fundamental right.”
The bill’s primary sponsor, Republican Rep. John Rubin of Shawnee, lashed out at President Barack Obama’s administration as being “wrong on the law.”
He criticized the administration, which he characterized as being more interested in undercutting the rights of law-abiding citizens than rooting out terrorists like the Boston bomber. Rubin, for instance, criticized federal authorities for not classifying the suspects in the case as enemy combatants.
“I wish the Obama administration had the same zeal to go after the true enemies of the United States that they seemed to have reserved for going after United States citizens standing up for our rights.”
Rep. Emily Perry, an Overland Park Democrat, was one of just 24 House members who voted against the bill. She said testimony from an assistant state attorney general indicated the bill might present legal problems. She also was concerned about the cost of defending the law.
“As a lawyer, I just didn’t feel like I could vote for something that I didn’t think was constitutional,” she said.
Many legal scholars don’t believe states can outright nullify federal laws the way Kansas is trying to do with guns and ammunition.
Even the conservative Heritage Foundation put out a fact sheet titled: “Nullification: Unlawful and unconstitutional.”
Although the think-tank’s paper doesn’t address guns specifically, it states, “There is no clause or implied power in either the national or the various state constitutions that enables states to veto federal laws unilaterally.”
Daniel Weddle, a professor at the University of Missouri-Kansas City Law School, agreed with Holder’s interpretation.
Although the Kansas law may only apply to guns manufactured in Kansas, Weddle said it potentially would have a substantial impact on interstate commerce, which would allow it to be regulated.
For instance, the law would give Kansas gun manufacturers an advantage in the market since their products would be exempt from gun-control laws imposed on out-of-state competitors.
“Kansas has figured out a way to put (gunmaker) Smith & Wesson at an economic disadvantage,” Weddle said.
Looking across the country, Weddle thinks states are miscalculating with laws like this.
“They’re going to cost a good deal of money to defend,” he said, “and I don’t see any way they’re going to win.”