Skip to comments.Holder v. Brownback? DOJ and Kan. on collision course on guns
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 presidents authority is limited, and legislation to advance the White Houses 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 Constitutions Supremacy Clause.
UCLA law Professor Adam Winkler, an expert in the politics of gun control, agreed with the governments 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, Holders 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 governments.
In a letter sent to Holder this week, Brownback responded to Holders 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.
Enjoyed it while I was there. Nice people, great place to raise a young family.
It passed several pro gun owner statutes in recent years, motivated in large part by the local reaction to the LA Katrina gun grab. Very reasonable CCW requirements.
Kobach is a competent attorney and I suspect he has the commitment of like-minded state AGs who will join him when it gets to the USSC.
Sadly, Kansas is essentially a sanctuary state, no doubt due to its heavy agriculture market. Heard there were a number of smaller city governments in the control of "newly arrived" immigrants (a trend supported and nourished in recent years with frequent visits by key federal officials and new programs). At the state level the cost of welfare programs and education has gone ballistic.
They're already legal in Kansas.
We know that, but you know Holder and Zero don't want/like anyone challenging their supreme authority.
They are ;legal’ in Tennessee, too, if you ask the fedzilla for permission and pay them $200 for the stamp showing they’ve approved you/it. This Kansas law could make fedzilla permission obsolete, as it should be.
I could see a new tourism model for Kansas.
Come visit and rent a full auto at the range. Gun ranges will make a mint if they have enough ammo.
You can bet that the holder thuggery department will be setting up all sorts of stings, to try and indict Kansas businesses for violating Interstate commerce thus fedzilla laws. UPS, FedX, USPS won’t be taking any shipments, but ‘bootleggers’ will no doubt be trying to buy and smuggle out items, and that is how the fedzilla will get successful stings.
Time to start framing our 2nd amendment rights as a civil rights issue. Obuma is Bull Conner turning on the hose and letting loose the dogs. And we don’t own “assault weapons,” they’re sporting rifles.
We need to take back our language from the purse-carrying liberal Nazi snobs.
And, yeh, let’s start calling the democrat party the Nazi party. The low-information voters know that Nazis are bad.
Ease then into it with the term “National Socialist” since the ignoramus’ have no idea what it means.
Holder is all bark. He has zero authority to challenge a state law of any sort. Until he sends a goon to violate it and said goon gets arrested Holder has what he likes to call “no standing”. He ought to read his own mail and STFU until he stirs up a legitimate/fake complaint. But I want to know who the federal genius will be willing to risk time in a Kansas jail?-—by pushing his luck in Kansas without letting the local county Sheriff know what he’s up to. County sheriffs do indeed have authority to ride herd on out-of-line fedz.
“Ease then into it with the term National Socialist since the ignoramus have no idea what it means.”
Your suggestion is valid, JerseyDvl, but we’re dealing with people who have a low IQ. My contention is that these low-information voters understand that Nazis are evil, and we can use that against the democrat Nazi party.
Wickard needs overturning or a very severe narrowing.
A hope for answers - Benghazi dam may break at last Could it doom Hillary?
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>> Holder v. Brownback?
This is a big deal — in the words of Joe Biden...
I have renewed interest in Brownback.
Amazing how Holder Inc. does business - if a State tries to enforce a Federal law that they don’t like, they sue the State for doing so. Now, they threaten to sue the State that wants to abide by the Constitution. The tyrants are becoming more bold and are preparing to become more physically forceful.
Holder is wrong WRT the Constitution, and it’s not even a close call.
I would like to see a state law that makes criminals of Federal officers who fail to enforce national laws. By failing to enforce the law, they are endangering the people of the state.
This is what's Constitutional.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.. Period, end of story.
No background checks, no "permits", no registering guns.
Why should Holder give a crap about that?>>>>>>>>>>>>>
The leftist plan is to destroy the gun culture of all the red states. They cannot do that directly or indirectly if the feds cannot pronounce federal legislation on firearms
in Kansas. How far does the federal plan go? Well we already see opertion fast and furious, demographic cross border warfare using Mexican cartels and illegal aliens, and we see Big Sis at DHS buying up all the ammo she can.
We have a refusal by the feds to enforce immigration law.
Put it all together.
The plan seems pretty clear. Kansas has just thrown a big wrench into the plan, as has Arizona in the past.
Just read up on that case. What a bunch of evil, malicious twisting of the meaning of words - something courts do all to often!
It was revisited. Remember Raich, built on Wickard, ruling anything which reduced demand for illegal interstate commerce could be violently regulated by the Feds.
The shoe was on a different foot in Raich. That foot, medical marijuana, is viewed by many with no familiarity with the medical literature as a canard, and a backdoor way of legalizing marijuana. The SCOTUS has since recognized an individual right to arms in Heller, and has since then incorporated it in McDonald.
Except that SCOTUS knew Raich would also take down Stewart, a near identical simultaneous case involving homemade machineguns.
It’s not what is banned, it’s a preemptive strike against what will be should the Obama buy off enough votes. It’s making clear a very big fight will follow, and not just a few lone gun nuts - whole states will deliver a big “F U - molon labe!”
Whatever happens, we live in interesting times.
If you think the Wickard decision was twisted, try US v. Miller.
The decision upheld the conviction of an Miller for possessing a sawed off shotgun without the $200 stamp. By the time the case came to the Supreme Court, Miller was dead, and his attorney did not have the funds to have his pleadings printed and travel to DC to submit them. So the ATF attorney blatently lied and said that a sawed off shotgun was NOT a military weapon even though millions of soldiers from WWI had direct experience that it was called a “trench broom” during the trench warfare. No defense was there to rebut these lies. So the justice writing the opinion, who evidently knew better, wrote his opinion trying to ignore evidence that should have been submitted.
In any case, the decision said sawed off shotguns were not protected by 2A because they were NOT military weapons.
But wait ... there is more. The assault weapons ban law specifically outlawed military style weapons. It was held to be constitutional, citing Miller as holding laws that banned weapons as constitutional.
The internet has made all of these opinions accessible to other than constitutional law students.
Thanks for the ping!
Holder has full authority to challenge state laws that he feels contradicts state laws. Who do you think represents the United States in the court system in litigation? It is the US Attorney whose ultimate boss is Holder.
Also, in real life and under how the law actually works it would be the state agent in jail if they tried to interfere with federal agents performing federal duties.
Lastly, federal agents receive their jurisdiction and authority from Congressional statutes and not the local sheriff. While the federal agents cannot force the local sheriff to enforce federal laws, the local sheriff cannot lawfully impede or interfere with a federal agent enforcing federal law. A sheriff receives his authority from a state constitution or state statute but NOT the federal government. Therefore, he has no lawful purview or authority in federal matters.
I don’t keep a ping list, don’t have time at present, but am pleased with some of these recent developments.
Kansas is staking out some breathing room.