Today the Brady Center to Prevent Gun Violence will file a federal 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, according to a news release.
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.
The lawsuit requests that a trial be held in U.S. District Court in Kansas City, Kan. Several Kansas residents, mostly from Johnson County, are referenced in the lawsuit. The lawsuit also makes a reference to a recent shooting at the parking lot of the Jewish Community Center in Overland Park.
“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,” Lowy said.
Kansas Attorney General Derek Schmidt responded to the lawsuit.
“We will defend this duly enacted Kansas law that was intended by the Legislature to safeguard Kansans’ rights under the Second and Tenth Amendments to the United States Constitution,” Schmidt said in a news release. “This law has been in effect, unchanged, for more than a year, and the timing and tone of this election-year lawsuit are obviously political. We are reviewing the complaint and will respond in due course and in the proper legal forum.”
Gov. Sam Brownback issued a statement in response to the lawsuit.
“As I have said previously, the right to keep and bear arms is a right that Kansans hold dear. 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,” Gov. Brownback said in the statement. “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.
“The Obama administration attacked this legislation when I signed it more than one year ago. It now appears that they have found some Washington, D.C., lawyers to do their bidding. We will vigorously defend the rights of Kansans in this litigation.”
The Brady Center stated that if enforced, this law would have drastic and dire consequences for Kansas residents.
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, according to the Brady Center. The law could also cripple investigations of gun trafficking and illegal gun sales, the center stated.
“Kansas’ gun nullification law is not just bad public policy, it is patently unconstitutional,” Lowy said.
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,” Lowy said.
“The statute is remarkable for its complete disregard of basic and long-established principles of constitutional law,” said Stuart Plunkett, partner, Morrison and Foerster and co-counsel in the Brady Campaign to Prevent Gun Violence v. Brownback.
“Our legal system would quickly break down if each of the 50 states were permitted to choose whether or not to follow federal law,” Plunkett said. “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 Gov. 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 online at www.bradycampaign.org/sites/default/files/Brady-vs-Brownback.PDF.