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.
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.