Brady Group sues Kansas

[BSA1]

The Brady Campaign to Prevent Gun Violence filed a lawsuit suing Kansas Governor Sam Brownback and the state's attorney general on Wednesday, challenging a one-year-old state law on the grounds that it violates the U.S. Constitution by nullifying federal laws aimed at reducing firearms violence.

The group is seeking a permanent injunction prohibiting enforcement of the Kansas "Second Amendment Protection Act." The law says that firearms made in Kansas are not subject to any federal law or regulation, including a gun or ammunition registration program. It also provides a nullification clause, deeming "void and unenforceable" any laws or regulations that the state deems to be a violation of the Second Amendment.

According to the complaint, the Kansas law violates provisions that give final power to interpret the U.S. Constitution to federal courts, not state legislatures. The Brady group also said the law is contrary to a 1958 U.S. Supreme Court ruling that found any state law claiming to nullify federal law as unconstitutional.

While some view this law as largely symbolic the Brady Group apparently have identified it as a threat to their anti-gun campaign.

Could this be the next major Supreme Court case in a few years?

http://news.yahoo.com/gun-control-group-sues-kansas-governor-over-gun-163814086.html

 

[ClickClickD'oh]

I don't see how they have standing. It would have to be Fed.gov filing the suit against Kansas.

 

[MagnumDweeb]

I want to see their argument for how they have standing. Since the law is a restraint or bypassing of federal law and jurisdiction I would think only an agent of the federal government could bring suit.

 

[Frank Ettin]

...While some view this law as largely symbolic the Brady Group apparently have identified it as a threat to their anti-gun campaign....

Or an opportunity to get some easy and cheap publicity.

We discussed here why the Kansas law was unlikely to have any useful application beyond the symbolism of it.

...Could this be the next major Supreme Court case in a few years?

Well the Montana law got trounced in the Ninth Circuit, and the Supreme Court declined to hear that case.

 

[BSA1]

I am a bit puzzled about it myself. Since the Supreme Court declined the Montana Law and lawsuits are expensive why would the Brady Group waste it's time and money challenging it?

Kansas is such a strong pro2A State losing the lawsuit would not have any real impact on gun owners.

 

[dogtown tom]

All of these state firearm freedom laws or Second Amendment laws are nothing more than a lame attempt to pander to gun owners that slept through social studies class. Gun owners that paid attention will remember that state law can't nullify federal laws.

I find it funny that the Brady Campaign would file suit over a law that is already null and void.

Sadly, there are more than a few dealers who think these laws are valid and that they don't have to follow federal law. ATF thinks otherwise:
https://www.atf.gov/sites/default/files/assets/pdf-files/open-letter-to-all-kansas-federal-firearms-licensees-provides-guidance-regarding-the-kansas-second-amendment-protection-act.pdf

 

[Outlaw Man]

Despite Federal court rulings to the contrary, it is clear (to me), from the debates around the ratification of the Bill of Rights, that the founders, Madision specifically, intended the Second Amendment as a protection against any implied Federal power to regulate firearms, such as under the Interstate Commerce clause.

It would be funny if this was the case that somehow made it to the Supreme Court and they ruled as above. The irony that the Brady Campaign could bring about the overturning or weakening of multiple Federal gun regulations makes me feel warm and fuzzy.

But, unfortunately, I imagine that scenario is about as likely as Madison rising from the grave and defending Kansas himself.

In the end, I see this suit about as likely to bring about any real change as the law itself, and it is clearly intended, much like the law, to garner support and publicity.

 

[tommy.duncan]

If state laws can not nullify federal laws, How can NY, NJ, MD, CO, and other states pass laws restrictive to the federal 2nd Amendment?
Or
Were they sleeping through Social Studies?

 

[ATLDave]

If state laws can not nullify federal laws, How can NY, NJ, MD, CO, and other states pass laws restrictive to the federal 2nd Amendment?

tommy', if a court of competent jurisdiction decides that those laws do, in fact, violate the second amendment*, then those laws are deemed invalid. But not just because you or any other random person thinks the laws are unconstitutional. Dogtown is exactly right that a state has zero power to pass a law purporting to "overrule" a federal law or regulation. A court might ultimately strike down the federal law, but a state law cannot do it. These state laws are gestures, nothing more.

* The second amendment itself only restricts Congress and the federal government; incorporation is required to make it apply to the states. See McDonald.

 

[Sam1911]

If state laws can not nullify federal laws, How can NY, NJ, MD, CO, and other states pass laws restrictive to the federal 2nd Amendment?
Or
Were they sleeping through Social Studies?

1) The bill of rights and the rest of the Constitution applied to the construction of, actions of, and limitations on the FEDERAL government. Until the passage of the 14th Amendment in 1868 it wasn't really viewed as applicable directly to the individual state governments.

2) It is up to the US Supreme Court, finally, to determine whether a law enacted is in violation of the Constitution, and when the Court does not determine that an infringement has occurred, then one does not technically exist. (However much we may believe it does.) As the various state laws restricting ownership of certain kinds of firearms have largely not been determined to be unconstitutional by SCOUTS, they are seen to be in compliance with the Constitution, and thus are not "nullifying" it in any way.

 

[Frank Ettin]

If state laws can not nullify federal laws, How can NY, NJ, MD, CO, and other states pass laws restrictive to the federal 2nd Amendment?
Or
Were they sleeping through Social Studies?

Sigh!

Until relatively recently, the controlling federal precedent was United States v. Cruikshank, 92 U. S. 542 (Supreme Court, 1876). The Court in Cruikshank held, among other things, that the Second Amendment did not apply to the States. That was, at the time, consistent with the ruling in Barron v. Baltimore, 32 U. S. (7 Pet.) 243 (Supreme Court, 1833) to the effect that the Bill of Rights did not apply to the States. A New Jersey state court was bound by those United States Supreme Court rulings on the federal question. It was only 2010 in McDonald v. Chicago, 561 U. S. 742 (Supreme Court, 2010) that the rights described by the Second Amendment were applied to the States.

And if one thinks government has exceeded its powers, the courts are open for business. With regard to any existing or possible future governmental actions which might be applied to limit, restrict or prohibit activities associated with the keeping and/or bearing of arms, here's essentially how things work:

1. Any governmental action limiting, restricting or prohibiting activities associated with the keeping and/or bearing of arms is subject to judicial challenge.
   
   
2. In the course of deciding Heller (District of Columbia v. Heller, 554 U. S. 570 (United States Supreme Court, 2008)) and McDonald (McDonald v. City of Chicago (Supreme Court, 2010, No. 08-1521)), the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts. Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.
   
   
3. There is judicial authority going back well before Heller and McDonald for the proposition that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, there is some possibility that highest level of scrutiny, "strict scrutiny" will apply, at least to some issues.
   
   
4. The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.
   
   
5. Whichever level of scrutiny may apply, the government, state or federal, seeking to have the regulation sustained will have the burden of convincing a court (and in some cases, ultimately the Supreme Court) that the regulation is acceptable under the applicable level of scrutiny.
   
   
6. Second Amendment jurisprudence is still in its infancy. Until Heller just five years ago, it was still in doubt whether the Second Amendment would be found to describe an individual or collective right. Until McDonald just three years ago, the law was that the Second Amendment did not apply to the States (United States v. Cruikshank, 92 U.S. 542 (1876)). So the scope and extent of permissible regulation of rights described by the Second Amendment is still unclear.
   
   
7. There are approximately 70 cases in various stages of litigation in various federal courts around the country challenging various law purporting to regulate the RKBA.
   
   
8. The bottom line is that Second Amendment jurisprudence will need to mature over time as these sorts of issues get litigated.

 

[tommy.duncan]

I thought the Kansas law was put into place to keep state and local LE from enforcing federal laws that restrict the 2nd Amendment.
Got it, Thanks for the explanation.

 

[Sam1911]

I thought the Kansas law was put into place to keep state and local LE from enforcing federal laws that restrict the 2nd Amendment.

On the face of it, yes. But what these laws really are are symbolic chestnuts tossed out to the faithful (like us) by law makers who want to show that they're super-extra dedicated to RKBA.

There is approximately zero chance that any of these laws will ever be even tried, let alone successfully enforced against federal agents seeking to enforce federal gun laws. Nullification was tried once before and it didn't go well for anyone involved. This time around it is all for show.

Not that showing the resolve and support needed to pass a state law like that is a bad thing. It just should be understood as an (unfortunately hollow) show.

 

[BSA1]

As a sidebar comment much of the pushback against the Federal Government hinges on the States seeking to assert their authority in the 10th Amendment.

The Federal Government has saddled States with unfunded mandates, rules and regulations that run counter to the needs and desires of the States and their citizens. As we are seeing regaining your rights after many decades of ignoring is very difficult.

 

[Frank Ettin]

State nullification of federal law is a chimera.

1. The Founding Fathers provided in the Constitution (Article VI, Clause 2, emphasis added):

   This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

   
   
2. There's some 200 years of Supreme Court precedent rejecting State nullification of federal law:
   
   
   • United States v. Peters, 9 U.S. (5 Cranch) 115 (1809)
     
     
   • Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816)
     
     
   • Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)
     
     
   • McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)
     
     
   • Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824)
     
     
   • Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)
     
     
   • Prigg v. Pennsylvania, 41 U.S. 539 (1842)
     
     
   • Ableman v. Booth, 62 U.S. 506 (1859)
     
     
   • Cooper v. Aaron, 358 U.S. 1 (1958)
     
     
   • Bush v. Orleans Parish School Board, 188 F. Supp. 916 (E.D. La. 1960), aff'd 364 U.S. 500 (1960).
   
   
3. The Ninth Circuit has specifically ruled against Montana in a "firearm freedom law" case, Montana Shooting Sports Association v. Holder, No. 10-36094, (9th Cir., 2013).
   
   
4. A State may decide not to enforce federal law or assist with the furtherance of federal policy (Printz v. U.S., 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997)), but a State may not nullify federal law; and the federal agents may still enforce federal law without a State's help.
   
   
5. See also Willis v. Winters, 253 P.3d 1058 (Or., 2011) in which the Oregon Supreme Court ruled that a Sheriff was required under Oregon law to issue a concealed handgun license to Cynthia Willis even though she was a medical marijuana user. But the Oregon Supreme Court specifically noted (at pp. 1065 - 1066, emphasis added):

   ...Neither is the statute [the Oregon CHL law] an obstacle to Congress's purposes in the sense that it interferes with the ability of the federal government to enforce the policy that the Gun Control Act expresses. A marijuana user's possession of a CHL may exempt him or her from prosecution or arrest under ORS 166.250(1)(a) and (b), but it does not in any way preclude full enforcement of the federal law by federal law enforcement officials...

 

[driftpin]

Well with the politicalization of the so called fourth branch of govt. "regulation", the states seem to be in quite a pickle. With the feds cherry picking the laws they will enforce, and not allowing states to enforce (AZ) it seems as though with all the bending of the laws, that something will break if it isn't changed. If nullification or secession isn't legal under CONUS, then what is left for the states to defend themselves with? Constitutional Convention?

 

[Jim K]

There is an interesting point in all this, aside from gun rights.

The vaunted First Amendment, with its Freedom of the Press and Freedom of Religion, constrains ONLY the Congress. There is NO constitutional protection against the President, by Executive Order, or a Federal Court, or a bureaucrat in the DOJ, EPA, or some other agency ordering, say, Fox News to be shut down and its employees arrested. That is not likely to be done, but anyone who thinks of "First Amendment protection" should actually read the Bill of Rights.

Jim

 

[Frank Ettin]

...If nullification or secession isn't legal under CONUS, then what is left for the states to defend themselves with?...

That's just politics as usual. We have a process established by the Founding Fathers for working things out. But nothing in any process will guarantee you the result you want.

So we go along working out our disagreements using the process and system installed by the Founding Fathers. But the reality is that everybody will not be completely satisfied all the time.

As I wrote not too long ago:

...The reality is that we live in a pluralistic, political society, and not everyone thinks as you do. People have varying beliefs, values, needs, wants and fears. People have differing views on the proper role government. So while you may be using the tools the Constitution, our laws and our system give you to promote your vision of how things should be, others may and will be using those same tools to promote their visions.

The Constitution, our laws, and our system give us resource and remedies. We can associate with others who think as we do and exercise what political power that association gives us to influence legislation. We have the opportunity to try to join with enough other people we can elect legislators and other public officials who we consider more attuned to our interests. And we can seek redress in court. And others who believe differently have the same opportunities.

You can't expect everyone to agree with you.

And let's also remember that it's not necessarily politicians who are the core problem. We pick the government. While it's fashionable to blame politicians for restrictive gun laws, politicians are interested in getting elected and re-elected. And they are doing what the people who elected them want done.

So what it really comes down to is our neighbors, the people in our communities, the people in our towns, the people we work with, the people we see at the mall, etc. If enough of our neighbors, enough of the people in our communities, enough of the people in our towns, enough of the people we work with, enough of the people we see at the mall, etc., don't like guns, and don't trust the rest of us with guns, are afraid of guns and people with guns, politicians who take anti-gun stands can get elected and re-elected (and bureaucrats who take anti-gun stands can keep their jobs). So we need to remember that a large part of the battle to keep our guns needs to start with our neighbors, the people in our communities, the people in our towns, the people we work with, the people we see at the mall, etc.; and finding ways to win their support.

There would not be restrictive gun laws if enough of our neighbors, the people in our communities, the people in our towns, the people we work with, the people we see at the mall, etc., did not vote for and support the people who enact those laws.

 

[Frank Ettin]

...The vaunted First Amendment, with its Freedom of the Press and Freedom of Religion, constrains ONLY the Congress. There is NO constitutional protection against the President, by Executive Order, or a Federal Court, or a bureaucrat in the DOJ, EPA, or some other agency ordering, say, Fox News to be shut down and its employees arrested...

Except if someone really does "go rogue", there are remedies available. An action by someone in the Executive Branch not supported by a lawful statute is ultra vires (beyond his powers) and subject to challenge in court. A totally off the wall act by a court is subject to challenge in another court.

 

[driftpin]

Very well written.

I believe in the Constitution. I do wholeheartedly.

I'm afraid that the whole system (schools, govt, tax system, media, courts, Fed) is so corrupted that we're going to have to watch as our country collapses economically before the system is swayed back to the center. We're watching the dollar self destruct now but we are being lied to by everyone telling us that things are just peachy, that unemployment rates are down, that quantitative easy is the way to fix things.

Anyways before I get ranting, I'll stop. I agree with what you wrote above though. Again very well written.

 

[Frank Ettin]

...I'm afraid that the whole system (schools, govt, tax system, media, courts, Fed) is so corrupted that we're going to have to watch as our country collapses economically before the system is swayed back to the center. We're watching the dollar self destruct now but we are being lied to by everyone telling us that things are just peachy, that unemployment rates are down, that quantitative easy is the way to fix things...

Nothing new there. Those kinds of thing have been going on since we started to crawl out of our caves.

 

[NickEllis]

It is up to the US Supreme Court, finally...

Well, not FINALLY, finally, but *optimistically* finally.

 

[USAF_Vet]

What, then, is the difference between Kansas' federal firearms nullification law, and Colorado and Washington's marijuana law (or the multiple states' medical marijuana laws)?
Marijuana is still considered to be illegal under federal law, and its production, distribution, possession and consumption can still be enforced by the feds in those states who willfully ignore federal law and write their own laws that supercede federal laws.

I've always understood it from early civics classes, that a state cannot write a law that legalized what federal law made illegal, but they can make illegal, or place further restrictions upon things that the federal government made legal. The NFA is a great example. Under federal law, machine guns are legal, but under heavy restriction. However, the states can make ownership or possession of an otherwise legal MG, illegal. No state, however, can lessen the restriction on machine guns placed by the fed.gov.

I understand the nullification laws were all pomp and circumstance, just a dog and pony show used by politicians to dupe low information voters (that just happen to be conservative, pro 2A), with no real power. No governor or county sheriff in their right mind would actively hinder or obstruct a federal firearms investigation.

Still, one relatively useless set of laws (firearm nullifcation) gets an equally useless challenge in court, while another set of nullification laws (marijuana use) gets a pass. Why?

 

[4v50 Gary]

Standing is generally an issue that arises before the Supreme Court.

 

[natman]

So the Kansas law is a meaningless publicity stunt by gun supporters.
And the Brady suit is a meaningless publicity stunt by gun grabbers.