Kansas’ new “Second Amendment Protection” law: Is it constitutional?

May 7, 2013

Kansas gun lawLast week, Kansas Governor Sam Brownback received a letter from U.S. Attorney General Eric Holder.

The letter was written over Kansas’ recently enacted law entitled the “Second Amendment Protection Act.”  The law has three purposes, according to the Kansas legislature.

First, the law excludes from federal regulation any personal firearm or ammunition manufactured and owned exclusively within Kansas.  Second, the law prevents – through criminal sanctions – any federal agent from enforcing any federal regulation or law governing any such firearm as long as it remains within the borders of Kansas.

Finally, the law allows a county or district attorney or the Kansas Attorney General to seek injunctive relief in court to enjoin certain federal officials from enforcing federal law regarding such a firearm.

Holder’s letter told Governor Brownback that the law was unconstitutional and that federal laws will continue to be enforced within the state of Kansas as though this new law didn’t exist.

Governor Brownback issued a response that effectively affirmed the law’s constitutionality and cited to the law’s popularity within the state.

Meanwhile, Kansas Secretary of State Kris Kobach sent a lengthier letter to the Attorney General.  Kobach claims that, “as a former professor of constitutional law, [he] ensured that it was drafted to withstand any legal challenge.”  The rest of the letter contains thinly-veiled insults and a caustic rebuke of the Obama administration’s policies over the past four-and-a-half-years, which Kobach claims consists of repeated “abuse” of the U.S. Constitution.

I’m not sure where Mr. Kobach taught constitutional law, but he doesn’t seem to have much familiarity with the Supremacy Clause, since the entire law is patently unconstitutional thereunder.

The Act is the latest in a line of nullification laws that were previously utilized by Southern states to fight against Federal desegregation efforts in the 1950s and 1960s.

Nullification, a legal theory that a state has the right to invalidate any federal law which that state has deemed unconstitutional, has seen resurgence recently in opposition to real or perceived policies of the Obama administration (i.e. “Obamacare” and the recent attempt at gun control).  The Supreme Court has explicitly rejected nullification on several occasions.

Although other states have enacted analogous laws, Kansas’ law goes further since it, as stated above, provides criminal penalties against any federal officer for simply enforcing federal law.

Though I seriously doubt that Kansas law enforcement would be foolish enough to actually enforce this provision, it would be unprecedented to have state authorities bring criminal charges against federal law enforcement agents for only doing their job, and it would be interesting to see how the numerous legal issues that would arise from such an event would unfold.

The parts purporting to override federal authority on certain matters are also unconstitutional, but the legal issues they present are anything but novel; they are just your run-of-the-mill nullification provisions.

The law’s last portion, seeking to allow Kansas legal officials to obtain an injunction to prevent the enforcement of federal laws, is an interesting one, but it’s still ultimately unenforceable.

What this provision is attempting to do is to create standing for Kansas officials to challenge the constitutionality of federal laws relating to the firearms in question (those produced and remaining within the borders of Kansas) “in any court of competent jurisdiction.”

While I have to give Kansas credit for attempting to use the correct legal channels for challenging federal laws (the courts), I don’t understand how the law’s authors could believe that they could create standing for themselves in federal court (the only possible “court of competent jurisdiction” to challenge federal law).  Only federal authorities (Congress or the Judiciary) may determine who has standing in federal court.

Thus, there’s nothing remarkable about this law that would make it any more likely to be upheld as constitutional than any other nullification measure.  In fact, the remarkable portions of this law make it seem more unconstitutional than its analogs.

But the fact that Kansas’ law is almost certainly unconstitutional isn’t terribly surprising.  These laws are almost always meant as a symbolic political gesture.

What is surprising is the litany of defenses that the law is generating from various officials within the state, who all vouch unequivocally for the law’s constitutionality.