Kansas Governor Pushes Back After Holder Calls Pro-Gun Law Unconstitutional

May 3, 2013 1:43 p.m.

Remember all those gun nullification bills that cropped up back in January? Last month, Kansas went ahead and passed one. Senate Bill 102, also known as the Second Amendment Protection Act, became effective in Kansas on April 25. And it has led to a high-level back and forth between Attorney General Eric Holder and Kansas Gov. Sam Brownback (R).Kansas’ Second Amendment Protection Act declares, among other things, that firearms manufactured and owned in Kansas that do not cross state lines are not subject to any federal laws. It also makes it unlawful for government agents to try to enforce federal laws on firearms made and kept within state lines.

The day after the measure went into effect, Holder sent a letter to Brownback.

“In purporting to override federal law and to criminalize the official acts of federal officers, [Senate Bill] 102 directly conflicts with federal law and is therefore unconstitutional,” Holder wrote in his letter. “Federal officers who are responsible for enforcing federal laws and regulations in order to maintain public safety cannot be forced to choose between the risk of a criminal prosecution by a state and the continued performance of their federal duties.”

Citing the Supremacy Clause of the Constitution, Holder said that Kansas could not prevent federal employees and officials from carrying out their official responsibilities. The attorney general told Brownback that federal agencies, including the Bureau of Alcohol, Tobacco, Firearms, and Explosives and the Federal Bureau of Investigation, would continue to enforce federal laws and regulations. Holder also warned that the government would 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.”

On Thursday, Brownback responded.

“The state’s Second Amendment Protection Act, which expressly restates our commitment to these rights, was approved by wide, bi-partisan margins in the Kansas Legislature,” Brownback wrote to Holder, citing the bill’s passage margin in the state Senate (35-4) and state House of Representatives (96-24). “The people of Kansas have clearly expressed their sovereign will. It is my hope that upon further review, you will see their right to do so.”

The same day, Kansas’ Secretary of State Kris Kobach (R), who was one of Senate Bill 102’s co-authors, issued a much more aggressive statement responding to Holder’s letter.

“Holder’s understanding of the United State Constitution is incorrect,” Kobach said in the statement, obtained by Propublica. “As one of the co-authors of [Senate Bill] 102 and as a former professor of constitutional law, I ensured that it was drafted to withstand any legal challenge.”

Kobach accused Holder of making a “simplistic and incorrect claim” in his letter to Brownback.

“[Holder] rests his claim on the Supremacy Clause of Article VI,” Kobach said. “However, what he fails to mention is the basic constitutional rule that a federal law that exceeds Congress’s power has absolutely no ability to preempt a contrary state law.”

In his defense of the Second Amendment Protection Act, Kobach went far beyond it. He argued that over the “past 80 years,” Congress has used the interstate commerce power to regulate numerous subjects “that have nothing to do with interstate commerce–including firearms.” He also brought up the “Fast and Furious” ATF gun walking scandal, “the executive amnesty for illegal aliens the DHS Secretary Janet Napolitano launched in June 2012,” and accused the Obama administration of “repeatedly” violating the constitution over the past four-and-a-half years.

“With respect to any litigation,” Kobach said, “we will happily meet Mr. Holder in court.”

(h/t Propublica)

  Eric Holder Letter To Sam Brownback

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