J. D. Heyes
May 23, 2013
There is a constitutional fight brewing between Kansas, whose current governor is a former federal legislator, and the Obama Administration over the passage of a state law banning federal agents from enforcing national gun control mandates and regulations when all firearms business is conducted between citizens within the state’s boundaries.
Gov. Sam Brownback is pushing against a Justice Department assertion the U.S. Constitution prevents his state from passing such a law. In a letter to the governor April 26, Attorney General Eric Holder essentially said that, regardless of the wording of the Kansas measure, Washington’s authority supersedes it.
“In purporting to override federal law and to criminalize the official acts of federal officers, [the law] directly conflicts with federal law and is therefore unconstitutional,” Holder said. “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.”
The Kansas law says “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.”
‘The people have spoken’
In response to Holder, Brownback wrote that the process in which the law was formulated and passed expressed the “sovereign will” of state residents, and that he hoped the attorney general “will see their right to do so.” He further argued that the Kansas law applies only to firearms in the state of Kansas, so they do not fall under the constitutional jurisdiction of the Commerce Clause, a position not supported by legal scholars interviewed by the mainstream media.
“The state is not free to nullify valid federal laws,” Adam Winkler, a constitutional law professor at UCLA and author of a book on gun rights, told the Washington Post. “Federal laws regulating the sale of firearms, even within one state, are clearly constitutional under the Commerce Clause.”
He added that the portion of the Kansas law barring state officials from enforcing federal gun statutes was “on sounder ground,” but the state could not bar federal officials from enforcing them.
The conservative Heritage Foundation put out a report last year called, “Nullification: Unlawful and Unconstitutional,” which concluded that “there is no clause or implied power in either the national or the various state constitutions that enables states to veto federal laws unilaterally.”
Even the libertarian CATO Institute agrees that state officials cannot interfere with federal officials who may be acting to enforce federal gun laws, the Post said.
So, is state sovereignty completely gone when it comes to firearms regulations, even if they are blatantly unconstitutional?
Yes – and no.
Kansas and the Constitution vs. Holder
According to CATO’s dissection of the “nullification question,” here are some answers to key questions:
— Can states refuse to enforce federal laws? In a word, yes. “State officials need not enforce federal laws that the state has determined to be unconstitutional; nor may Congress mandate that states enact specific laws,” says CATO’s chairman, Robert Levy, a constitutional law professor.
— Can states block federal agents from enforcing federal laws? No, they cannot, under most conditions. “[S]tates may not block federal authorities who attempt to enforce a federal law unless a court has held that the law is unconstitutional,” writes Levy.
— Is there any legal liability for citizens of a state whose lawmakers have nullified a federal law? Yes. “[I]ndividuals are not exempt from prosecution by the federal government just because the state where they reside has legalized an activity or pronounced that a federal law is unconstitutional; if convicted, individuals can attempt to vindicate their constitutional rights in court,” says Levy.
As for the Commerce Clause, says Prof. Randy Barnett of Georgetown School of Law, the original intent of the framers was that the federal government had the power to regulate the trade and exchange of goods and transportation between the states, not within them.
Some have argued that application of the clause is far too narrow, but Barnett points out here that, after a thorough examination of the Constitutional Convention records, the Federalist Papers and the ratification debates, he could find no surviving example of the term “Commerce Clause” being used in any broader sense – and certainly not a broader sense to include federal gun statutes that violate the Second Amendment.
We will be following this case carefully.
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This article was posted: Thursday, May 23, 2013 at 10:11 am