Kansas Governor Sam Brownback received a letter today from Attorney General Eric Holder threatening action against the state should it enforce SB102, the pro 2nd Amendment law Brownback signed into law last month.
The new law declares that the federal government has no power to regulate guns manufactured, sold and kept only in Kansas.
Any act, law, treaty, order, rule or regulation of the government of the United States which violates the second amendment to the constitution of the United States is null, void and unenforceable in the state of Kansas.
The legislation made it a felony for a federal agent to enforce any law, regulation, order or treaty regulating ammunition made, sold and kept in the state because the federal government does not “interstate commerce” authority over such items.
The law became effective only a week ago, but already Holder has leapt into action, firing off a letter to the governor of Kansas threatening to take “all appropriate action including litigation if necessary” to prevent the state of Kansas from protecting the 2nd Amendment. (Amazing for a guy who didn’t even know about his own department’s gun-running operation, Fast and Furious until months after a border patrol agent was killed by one of its guns.) But when a state passes a law he doesn’t like – this Attorney General is FAST!
“In purporting to override federal law and to criminalize the official acts of federal officers, SB102 directly conflicts with federal law and is therefore unconstitutional.”
“Under the Supremacy Clause…Kansas may not prevent federal employees and officials from carrying out their official responsibilities. And a state certainly may not criminalize the exercise of federal responsibilities. Because SB102 conflicts with federal firearms laws and regulations, federal law supercedes this new statute; all provisions of federal laws and their implementing regulations therefore continue to apply.”
Michael Boldin, founder of the Tenth Amendment Center, pointed out the flaws in Holder’s reasoning at Right Side News:
1. Kansas is NOT purporting to criminalize the exercise of constitutional federal responsibilities. On the contrary, the bill criminalizes what the state has determined is unconstitutional. It is the position that such federal acts are indeed a violation of the Constitution. No matter how much Eric might believe it to be otherwise, his view is obviously not universal – especially in Kansas.
2. The Supremacy Clause. Holder takes the position that all tyrants do – that everything they do is authorized, anything to the contrary – worthless. But Holder is wrong. The Supremacy Clause doesn’t say that “any law in conflict with federal law” is void. It says that only those laws “in pursuance” of the constitution are supreme. The new Kansas legislation, again, takes the position that such federal acts are not constitutional, and therefore not supreme.
3. Historical Precedent. The 1850 Fugitive Slave Act was a federal law that basically required all states in the north to act as slave catchers for black people claimed as property in the South. It’s one of the most disgusting acts in American history. A number of northern states passed laws similar to the new Kansas law, criminalizing federal agents for attempting to kidnap people in their states. Although the feds still claimed the same kind of authority that Eric Holder has claimed today, they didn’t have the manpower to enforce. Read more about that here. As an aside, if Holder would like to take the position that such resistance to federal slave laws was wrong, he’s welcome to publicly state that.
There is also a precedent to fighting federal gun control laws and winning.
After the Brady bill was signed into law in the nineties, Arizona Sheriff Richard Mack sued the Clinton administration claiming the federal government had overstepped its bounds. The case found its way to the U.S. Supreme Court, and Sheriff Mack won.
“There’s still hope and local sovereignty, state sovereignty, state’s rights is the solution. We’ve got to have local officials that tell the federal government there’s just a few things you’re not going to do here,” Mack said at a gun rights event at an American Legion in Lima, Ohio, last February.
“If we have local officials, sheriffs and state representatives and governors nullifying what the federal government is doing it’s all proper, it’s all constitutional, and it is completely in line with state sovereignty and the 10th Amendment.”
“The 10th Amendment guarantees this process that we’re about today. Acting on the powers of the states we can keep this movement peaceful and effective and put the federal government back where they belong,” Mack concluded.