Kansas’ “Second Amendment Protection Act” is Unconstitutional, According to New Lawsuit filed by Brady Center | Brady Campaign to Prevent Gun Violence

Kansas’ “Second Amendment Protection Act” is Unconstitutional, According to New Lawsuit filed by Brady Center

State Effort to Void Federal Gun Laws Has Broad Implications

July 9, 2014, Jennifer Fuson, 202-370-8128, jfuson [at] bradymail [dot] org

Washington, D.C. – Today the Brady Center to Prevent Gun Violence filed a lawsuit against the state of Kansas to strike down and stop enforcement of its law that declares guns made and kept in Kansas are exempt from federal gun laws and makes federal regulation of Kansas-made guns a felony.

The complaint, filed today in the U.S. District Court in Kansas, argues the “Second Amendment Protection Act,” enacted in 2013, is unconstitutional and should be struck down.

“Courts have recognized for years that states cannot just declare ‘null and void’ federal laws they do not like or wish to enforce,” said Jonathan Lowy, Director, Legal Action Project, Brady Center to Prevent Gun Violence. “Just as Southern states were not allowed to opt-out of federal civil rights laws, the Constitution does not allow Kansas or any other state to nullify federal gun laws that protect Kansans and all Americans from gun violence,” added Lowy.

“The Act, if enforced, would have drastic and dire consequences for Kansas residents,” said Lowy.

It could allow some federally prohibited people to buy and possess guns, prohibit federal background checks for gun purchases and allow the unlicensed manufacturing of firearms in Kansas, including guns designed to evade metal detectors and airport security screenings. The law could also cripple investigations of gun trafficking and illegal gun sales.

“Kansas’ gun nullification law is not just bad public policy, it is patently unconstitutional,” added Lowy.

According to the complaint, the Act is unconstitutional because it violates the Supremacy Clause, which declares that federal law is supreme and gives final power to interpret the Constitution to federal courts, not state legislatures. The complaint also argues that federal regulation of firearms is permitted by the Commerce Clause and that the law’s prohibitions on enforcing federal gun laws violates Kansas citizens’ due process because the law is “unconstitutionally” vague.

Further, the U.S. Supreme Court ruled in 1958 that any and all state laws claiming to nullify federal law are unconstitutional, as states had attempted to circumvent federal desegregation mandates.

As detailed in the complaint, "Nullification has never been upheld and instead has been squarely rejected by the courts under fundamental principles of constitutional law."

“We are confident the Court will agree that this law is unconstitutional,” added Lowy.

"The statute is remarkable for its complete disregard of basic and long-established principles of constitutional law," said Stuart Plunkett, Partner, Morrison & Foerster and co-counsel in the Brady Campaign to Prevent Gun Violence v. Brownback.

"Our legal system would quickly breakdown if each of the 50 states were permitted to choose whether or not to follow federal law," added Plunkett. "The Kansas law is also remarkable for its attempt to resurrect a legal theory from the desegregation and pre-Civil War areas that has been squarely and repeatedly rejected by the United States Supreme Court."

The complaint was filed on behalf of the Brady Campaign to Prevent Gun Violence and its Kansas membership, and names Governor Sam Brownback and Attorney General Derek Schmidt as defendants. The suit seeks a ruling that the law is unconstitutional and a permanent injunction blocking its enforcement.

The Brady Center has successfully brought lawsuits that have blocked or struck down other gun laws, including a Florida law that prevented doctors from discussing firearms with patients and a Georgia city ordinance that mandated firearm ownership in all households. The Brady Center also prepared to file a lawsuit in 2013 against Missouri for a similar law that nullified federal gun laws, but that law was vetoed by Governor Nixon. The Brady Center is also suing New Jersey for compliance of its law on “smart gun” technology.

A copy of the complaint is available online.

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