This article was published by The McAlvany Intelligence Advisor on Monday, June 15, 2015:
Within days of learning that Kansas Governor Sam Brownback signed into law the state’s Second Amendment Protection Act (SAPA), then-Attorney General Eric holder sought to put the upstart governor and his insignificant state in their place: SAPA was null and void. Federal officials would continue to operate in Kansas in spite of the new law, and if one of them were arrested, there would be trouble!
[Your new law] criminalizes the enforcement of federal law with respect to the types of firearms, firearm accessories, and ammunition….
[Your law] directly conflicts with federal law and is therefore unconstitutional….
Because [your law] conflicts with federal firearms laws and regulations, federal law supersedes this new statute; all provisions of federal laws and their implementing regulations therefore continue to apply….
[My department] will 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.
Please contact me if you wish to discuss this matter further.
No record presently exists of any attempt by Brownback to “discuss the matter further” with Holder.
SAPA was abundantly clear. The Second Amendment, and the Kansas Bill of Rights, guaranteed the right to Kansans to keep and bear arms that preceded its entry into statehood. It was part of the contract under which Kansas became a state. From SAPA:
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 United States was agreed upon and adopted by Kansas in 1859 and the United States in 1861.
Therefore, says the law:
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.
That law also precluded federal officials from using the Commerce Clause to control and regulate firearms and their accessories if they were made and sold and kept inside the state’s borders:
A personal firearm, a firearm accessory or ammunition that is owned or manufactured commercially or privately 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.
Any attempt by any federal official to attempt to enforce such laws will result in him being arrested and charged with a felony:
It is unlawful for any official, agent or employee of 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, firearm accessory or ammunition that is owned or manufactured commercially or privately in the state of Kansas and that remains within the borders of Kansas.
Violation of this section is a … felony.
The part of SAPA that spells the doomsday and the death knell for Holder and his replacement is this:
No official, agent or employee of the state of Kansas (emphasis added), nor any dealer selling any firearm in the state of Kansas, shall enforce or attempt to enforce any act, law, treaty, rule or regulation of the government of the United States regarding any personal firearm, firearm accessory or ammunition that is owned or manufactured commercially or privately in the state of Kansas and that remains within the borders of Kansas.
In every notable case on record, the Department of Justice has had to rely on local and state officials to assist them with the enforcement of federal law, constitutional or not. Without such assistance, the DOJ could do little or nothing. It just doesn’t have the manpower.
And, under federal jurisprudence it cannot force recalcitrant state officials to assist them in such enforcement. It’s called the “anti-commandeering” doctrine, backed up by no fewer than four Supreme Court cases, including New York v. United States, decided in 1992, in which Justice Sandra Day O’Connor wrote:
Congress may not simply “commandeer” the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program….
The Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.
As Michael Boldin noted at the Tenth Amendment Center’s blog:
There are many ways to nullify a law. The courts can strike it down. The executive branch could refuse to enforce it. People in large numbers might refuse to comply. A number of states could pass a law making its enforcement illegal.
Or a number of states could refuse to cooperate in any way with its enforcement.
States allowing public use of marijuana, in violation of federal rules, have been left alone. Wrote Boldin:
Here at the Tenth Amendment Center we’ve been touting marijuana legalization efforts as a nullification of unconstitutional federal laws since our inception. Last fall, when voters in Colorado and Washington State legalized marijuana for the public at large, even the Department of Justice agreed.
To add insult to injury, an attempt by the Brady Campaign to nullify Kansas’ SAPA was just tossed last week, on a technicality.
It seems that the anti-gunners just simply can’t catch a break. It’s been more than two years since Brownback signed SAPA into law and there has not been a single instance of a federal official attempting to enforce a federal firearms law on Kansas soil. The longer that goes on, the greater the likelihood that the DOJ, despite Holder’s letter of warning, will just leave Kansas alone. And this is giving the green light for other states to enact similar statutes. At present more than 20 states are considering them.
This is how nullification works.
TenthAmendmentCenter.com: The Kansas Second Amendment Protection Act
TenthAmendmentCenter.com: Kansas Governor Sam Brownback Signs 2nd Amendment Protection Act into Law
TenthAmendmentCenter.com: States Don’t Have to Comply: The Anti-Commandeering Doctrine
TenthAmendmentCenter.com: Don’t Comply. Nullify!
Cjonline.com: Brady Center to sue Brownback over gun law