Last week a federal judge dismissed a lawsuit challenging the constitutionality of the Kansas Second Amendment Protection Act, saying the suit from the Brady Campaign was “without merit.”
The law, signed by Gov. Sam Brownback in 2013, draws a line in the sand on federal gun control. It reads, in part:
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
In conjunction with Section 6a (quoted above), the bill defines what is meant by “the second amendment to the constitution of the United States,” and that it isn’t based off a decision of the supreme court.
The second amendment to the constitution of the United States reserves to the people, individually, the right to keep and bear arms as that right was understood at the time that Kansas was admitted to statehood in 1861, and the guaranty of that right is a matter of contract between the state and people of Kansas and the United States as of the time that the compact with the United States was agreed upon and adopted by Kansas in 1859 and the United States in 1861.
State and local agents would be prevented from enforcing any acts or actions that are “null, void and unenforceable in the state of Kansas.” Based off this text, the state of Kansas would not be allowed to participate in any federal gun control measures that restrict the individual right to keep and bear arms as understood in 1861.
A second part of the bill intends to encourage more gun manufacturing in the state by declaring null and void any federal restrictions, under the commerce clause, on firearms made and sold within the state.
A personal firearm, a firearm accessory or ammunition that manufactured commercially or privately and owned in Kansas and that remains within the borders of Kansas is not subject to any federal law, treaty, federal regulation, or federal executive action, including any federal firearm or ammunition registration program, under the authority of congress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce.
This section of the bill is backed up by criminal charges.
It is unlawful for any official, agent or employee of the government of the United States, or employee of a corporation providing services to the government of the United States to enforce or attempt to enforce any act, law, treaty, order, rule or regulation of the government of the United States upon a firearm, a firearm accessory, or ammunition that is manufactured commercially or privately and owned in the state of Kansas and that remains within the borders of Kansas. Violation of this section is a severity level 10 nonperson felony
Any criminal prosecution for a violation of this section shall be commenced by service of complaint and summons upon such official, agent or employee. Such official, agent or employee shall not be arrested or otherwise detained prior to, or during the pendency of, any trial for a violation of this section.
Once a federal agent violates this law, they would be served with a complaint and summons, whereby criminal proceedings can begin.
At the heart of the Brady Campaign’s legal argument is that one of its members could have been prosecuted by the state for trying to help federal agents enforce federal gun laws. U.S. District Court Judge Julie Robinson dismissed the claim on the basis of “subject matter jurisdiction,” noting that no actual prosecution had taken place.
…Brady Campaign lacks Article III standing to challenge the Second Amendment Protection Act in this lawsuit because it has not shown that enforcement of the statute inflicts an actual or imminently-threatened injury on any Brady Campaign member.
While it may seem like this was a technical victory, it is important to remember not who challenged the law, but who didn’t: the federal government. Guns.com aptly summed up their all bark and no bite stance:
While the U.S. Department of Justice panned the law, calling it unenforceable, it was only the Brady group that sought to challenge it.
This failed lawsuit by the Brady Campaign demonstrates the effectiveness of SAPA in two ways. One, it was upheld in federal court, which proves that such legislation is not merely political grandstanding that will be overturned in the courtroom. Two, the federal government’s unwillingness to contest its constitutionality – for now – speaks greater volume than any words they may speak against it. The boxer who takes his gloves off should not speak like one who puts them on.
What’s important to note is that the federal court didn’t say that the federal government doesn’t have the power to regulate firearms under the commerce clause, as the Kansas law states. The Brady suit was dismissed for lack of standing. Should local gun manufacturers start acting outside of federal law, and should Kansas law enforcement serve a complaint on summons on a federal agent, it’s likely to be challenged by the federal government, with the federal courts likely to side with Washington D.C.
However, one part of the bill isn’t being challenged at all, the section setting the foundation for all state and local agents to refuse to help implement federal gun measures. This is based on the long-standing anti-commandeering doctrine, where the Supreme Court has repeatedly held that the federal government cannot require states to use personnel or resources to help enforce federal acts or regulatory programs.
Moving forward, every city, county, and town in the state should take action to pass legislation giving full practical effect to the state law. The 2nd Amendment Preservation Ordinance bans the use of local resources to effectuate federal gun control measures.
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Michael Boldin contributed to this report.