At the urging of the corporate gun lobby, some states have passed laws that seek to nullify federal gun safety regulations and/or threaten law enforcement with criminal prosecution for doing their job. Failing to enforce gun laws puts the entire public at risk. The Brady Center, working with the law firms of Morrison and Foerster and Proskaner Rose LLP has represented law enforcement organizations and local residents in challenging these laws.
In April 2013, Kansas enacted the “Second Amendment Protection Act,” which declares that all guns made and kept in Kansas are exempt from federal gun laws, and makes it a felony to enforce federal laws against such “Made in Kansas” guns. The law also claims to nullify all federal gun laws that violate the Second Amendment.
If enforced, the law could have dire consequences for Kansas residents and public safety. One result is that Brady background checks for “Made in Kansas” guns would be prohibited, allowing them to be sold to convicted felons, domestic abusers and the dangerously mentally ill. The law could also allow the sale of handguns to underage buyers, allow violent domestic abusers to possess guns, and allow manufacturers to produce guns without serial numbers, rendering them untraceable.
Attempts to nullify federal law are not without precedent: numerous Southern states attempted to void federal laws mandating the integration of public schools during the Civil Rights movement in the 1950s. The U.S. Supreme Court held unequivocally that all state nullification of federal law is unconstitutional in 1958.
Shortly after the bill was adopted, U.S. Attorney General Eric Holder wrote a letter to Kansas Governor Sam Brownback to inform him that the law clearly violated the Supremacy Clause of the Constitution, and that federal authorities would continue to enforce all federal gun laws and regulations in Kansas. In response, Kansas Secretary of State Kris Kobach, who coauthored the law and testified before the state legislature on its behalf, issued a statement defying the Attorney General and claiming that Congress has no power to regulate guns made and kept in Kansas. In 2014, it was revealed that Secretary Kobach is a part owner of Minuteman Defense, a recently founded Kansas company that Kobach says will manufacture AR-15 rifles in Kansas under the protection of the new law.
The Brady Center filed suit against the state on behalf of the Brady Campaign and its Kansas membership on July 9, 2014, arguing that the Second Amendment Protection Act is unconstitutional, endangers Kansas residents, and should be struck down.
As soon as word of the suit reached Kansas, Governor Brownback issued a statement vowing to “vigorously defend the rights of Kansans in this litigation.” Brownback incorrectly asserted in his statement that the lawsuit was the work of the Obama administration and that the Brady Center was “[doing] their bidding,” to which Brady Center Legal Action Project Director Jonathan Lowy responded that “we are doing the bidding of Kansans.” The Brady Center was also falsely accused by Kansas Attorney General Derek Schmidt of filing the lawsuit in an election year for political purposes.
On June 5, 2015, a federal trial judge dismissed Brady’s suit, ruling that the plaintiffs do not have standing to bring the action, regardless of its merits. Brady is now considering whether to appeal or refile the suit.
Counsel for the plaintiffs with the Brady Center are Stuart Plunkett and a team from Morrison & Foerster LLP, and James Wyrsch of Wyrsch Hobbs Mirakian, P.C. in Kansas City, MO.