Eric Holder to Kansas governor: New state gun law unconstitutional

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A new law in Kansas that prevents government agents from enforcing federal gun laws in the state is unconstitutional, Attorney General Eric H. Holder said.

“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,” Mr. Holder wrote to Gov. Sam Brownback in a letter dated April 26. “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 measure, known as the Second Amendment Protection Act, prevents any law enforcement official from enforcing any federal regulation or law governing any firearm, accessory, or ammunition “manufactured commercially or privately and owned in Kansas, provided it remains within the borders of Kansas.” 

It also exempts any firearm of the same description from federal regulation and allows state officials to enjoin agents from enforcing federal gun laws regarding firearms owned in the state.

Mr. Holder cites the Supremacy Clause of the U.S. Constitution, which says federal law trumps conflicting state authority or exercise of power. Kansas’s law became effective April 25.

Mr. Holder wrote that federal authorities “will continue to execute their duties to enforce all federal firearms laws and regulations. Moreover, 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 federal law.”

Mr. Brownback replied to Mr. Holder on Thursday.

“The right to keep and bear arms is a right that Kansans hold dear,” Mr. Brownback wrote in a letter dated May 2. “It is a right enshrined not only in the Second Amendment to the United States Constitution, but also protected by the Kansas Bill of Rights. 

“The people of Kansas have repeatedly and overwhelmingly reaffirmed their commitment to protecting this fundamental right. The people of Kansas are likewise committed to defending the sovereignty of the State of Kansas as guaranteed in the Ninth and Tenth Amendments to the United States Constitution,” he said.

Mr. Brownback goes on to write that the legislation was passed on wide and bipartisan votes in the Kansas House of Representatives and the Kansas Senate (96-24 and 35-4, respectively), and that the Democratic minority leader in each chamber supported it.

“This is not a partisan issue in Kansas,” he wrote. “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.”

A handful of states proposed similar laws as Congress was weighing measures to ban semiautomatic, military-style rifles and high-capacity magazines, as well as expanded background checks on gun purchases.

An effort to expand gun-purchase background checks to sales online and at gun shows recently stalled in the U.S. Senate, though some proponents say similar legislation could be brought up later this year.


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