Holder v. Brownback? DOJ and Kan. on collision course on guns

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.

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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 president’s authority is limited, and legislation to advance the White House’s 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 Constitution’s Supremacy Clause.

UCLA law Professor Adam Winkler, an expert in the politics of gun control, agreed with the government’s 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, Holder’s 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 government’s.”

In a letter sent to Holder this week, Brownback responded to Holder’s 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.”