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U.S. attorney general tells Gov. Brownback new state gun law is unconstitutional

  • The Wichita Eagle
  • Published Thursday, May 2, 2013, at 9:51 a.m.
  • Updated Wednesday, June 18, 2014, at 3:08 p.m.

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One day after Gov. Sam Brownback signed new gun legislation into law, U.S. Attorney General Eric Holder wrote him a letter saying the measure is unconstitutional and he is willing to go to court to fight it.

After that week-old letter was made public Thursday, Brownback fired off a return letter to Holder, noting that the law “is not a partisan issue in Kansas.”

The law declares Kansas-made guns and ammunition immune from federal regulations inside the state and allows prosecution of federal officials who try to enforce controls on those items.

Both sides apparently were expecting a legal fight over the law.

After lawmakers overwhelmingly passed the Second Amendment Protection Act, Brownback signed it into law April 25.

The next day Holder wrote to Brownback, stating, “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.”

He went on to say, “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 criminal prosecution by a state and the continued performance of their federal duties.”

In response, Brownback wrote, “The people of Kansas have repeatedly and overwhelmingly reaffirmed their commitment to protecting” their right to keep and bear arms.

He noted that the Democrat minority leaders voted for the bill.

“This is not a partisan issue in Kansas,” Brownback said. “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.”

Kansas Attorney General Derek Schmidt had anticipated a potential legal challenge from the federal government and asked legislators to increase his office’s budget by $225,000 over the next two years to cover litigation costs. Neither Schmidt nor his office responded to requests for comments Thursday.

Patricia Stoneking, president of the Kansas Rifle Association, the National Rifle Association’s state affiliate, said Holder’s response wasn’t a surprise.

“You will find thousands upon thousands of Kansans who are going to stand with the governor on this law,” she said. “We’re not backing down on this. This letter is only the beginning and by no stretch of the imagination is the end.”

Stoneking noted that Brownback is scheduled to hold a ceremonial signing of the law on Wednesday.

“That in itself will send a message,” she said.

Barry Grissom, the U.S. attorney for Kansas, released a copy of Holder’s letter on Thursday. He said in a statement that the law is “illegal, unenforceable, and also bad policy.”

“Those hard-working federal employees cannot be forced to choose between the risk of criminal prosecution and the continued performance of their federal duties,” he said.

The law applies to any personal firearm, firearm accessory or ammunition manufactured commercially or privately and owned in Kansas. As long as those items remain within the state, they are not subject to any federal law, regulation or authority, according to a summary of Senate Bill 102.

Holder cited the Supremacy Clause of the U.S. Constitution in saying Kansas may not prevent federal employees and officials from carrying out their responsibilities.

He said federal agencies “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,” he added, “to prevent the State of Kansas from interfering with the activities of federal officials enforcing federal law.”

Kansas’ law is modeled after a 2009 Montana law that is being reviewed by a federal appeals court, and Alaska lawmakers approved a similar measure last month. Alabama, Missouri and Oklahoma lawmakers are considering similar legislation.

To soften Kansas’ law, supporters included a clause that said federal agents wouldn’t be arrested or detained while trials were pending.

Stoneking said a dispute could arise after a local gunsmith sells a firearm manufactured in Kansas to a state resident without complying with federal requirements for a background check on the buyer or registering the gun.

“Until that actually happens, there won’t be any litigation,” she said. “The federal government will have to have some way of finding out.”

Contributing: Associated Press

Reach Rick Plumlee at 316-268-6660 or rplumlee@wichitaeagle.com.

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