Kansas, Justice Department on nullification collision course

Kansas, Justice Department on nullification collision course
Kansas, Justice Department on nullification collision course
Associated Press

A few weeks ago, Kansas Gov. Sam Brownback (R) signed into law a measure called the “Second Amendment Protection Act,” which states that, “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.”

At the time, a far-right activist and nullification enthusiast told a local paper, “The Kansas Second Amendment Protection Act, in my opinion, is potentially the most important state level bill passed in modern American history.”

Clearly, that was hyperbolic, but there is a burgeoning legal fight underway that’s worth following closely.

Attorney General Eric Holder has written to Brownback that the law is unconstitutional and that the government “will take all appropriate action including litigation if necessary, to prevent the State of Kansas from interfering with the activities of federal officials enforcing federal law.”

Brownback replied that he stands by the law and that it has broad support in the state, from Democrats and Republicans. “The people of Kansas have clearly expressed their sovereign will,” he wrote Thursday. “It is my hope that upon further review, you will see their right to do so.”

Kris Kobach, the right-wing anti-immigrant activist who now serves as Kansas’ Secretary of State, helped write the legislation. After Holder tried to remind Brownback of modern jurisprudence, Koback was filled was bravado: “With respect to any litigation, we will happily meet Mr. Holder in court.”

That’s nice, I suppose, and I hope Kobach and his allies will be equally happy to honor court rulings after Kansas loses.

The state-based “Second Amendment Protection Act” tries to play a little legal game, declaring that federal gun laws don’t apply to firearms manufactured and owned in Kansas that do not cross state lines. It also takes the next step of telling law enforcement that federal laws can’t be enforced in Kansas on firearms manufactured and owned in Kansas.

This is the sort of legal thinking that was common in the South before the Civil War, but which was resolved by the end of the conflict. A state doesn’t have the discretionary power to nullify federal gun laws.

It’s worth emphasizing that much of this is theoretical, at least for now. As The Hill reported, “Practically speaking, there are no guns that fit [Kansas’] 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.’”

But that doesn’t change the underlying legal fight.

“The state is not free to nullify valid federal laws,” said Adam Winkler, a constitutional law professor at UCLA and author of a book on gun rights. “Federal laws regulating the sale of firearms, even within one state, are clearly constitutional under the commerce clause.” The part of the law that bars state officials from enforcing federal gun laws is “on sounder ground,” he said, as long as those officials don’t interfere with federal law enforcement.

The conservative Heritage Foundation put out a fact sheet last year, “Nullification: Unlawful and Unconstitutional,” that says, “there is no clause or implied power in either the national or the various state constitutions that enables states to veto federal laws unilaterally.”