On Thursday, Kansas Governor Sam Brownback received a letter from Federal Attorney General Eric Holder threatening action against the state should it enforce SB102 which Brownback signed into law last month.
The new law states, in part:
Any act, law, treaty, order, rule or regulation of the government of the United States which violates the second amendment to the constitution of the United States is null, void and unenforceable in the state of Kansas
The bill also provides for criminal penalties against federal agents who attempt to enforce specific federal laws on guns manufactured in the state of Kansas and sold within the state – as the state takes the position under the new law that the federal government does not “interstate commerce” authority over such items.
In his letter, Holder didn’t take too kindly to such a proposition. He wrote:
“In purporting to override federal law and to criminalize the official acts of federal officers, SB102 directly conflicts with federal law and is therefore unconstitutional.”
He continued, “Under the Supremacy Clause…Kansas may not prevent federal employees and officials from carrying out their official responsibilities. And a state certainly may not criminalize the exercise of federal responsibilities. Because SB102 conflicts with federal firearms laws and regulations, federal law supercedes this new statute; all provisions of federal laws and their implementing regulations therefore continue to apply.”
Let’s take Eric apart here.
1. Kansas is NOT purporting to criminalize the exercise of constitutional federal responsibilities. On the contrary, the bill criminalizes what the state has determined is unconstitutional. It is the position that such federal acts are indeed a violation of the Constitution. No matter how much Eric might believe it to be otherwise, his view is obviously not universal – especially in Kansas.
2. The Supremacy Clause. Holder takes the position that all tyrants do – that everything they do is authorized, anything to the contrary – worthless. But Holder is wrong. The Supremacy Clause doesn’t say that “any law in conflict with federal law” is void. It says that only those laws “in pursuance” of the constitution are supreme. The new Kansas legislation, again, takes the position that such federal acts are not constitutional, and therefore not supreme.
3. Historical Precedent. The 1850 Fugitive Slave Act was a federal law that basically required all states in the north to act as slave catchers for black people claimed as property in the South. It’s one of the most disgusting acts in American history. A number of northern states passed laws similar to the new Kansas law, criminalizing federal agents for attempting to kidnap people in their states. Although the feds still claimed the same kind of authority that Eric Holder has claimed today, they didn’t have the manpower to enforce. Read more about that here. As an aside, if Holder would like to take the position that such resistance to federal slave laws was wrong, he’s welcome to publicly state that.
Eric capped off his letter by assuring the People of Kansas that the federal government will continue to enforce all federal gun laws. He wrote:
“I am writing to inform you that federal law enforcement agencies, including the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Federal Bureau of Investigation, the Drug Enforcement Administration, and the United States Attorney’s Office…will continue to execute their duties to enforce all federal firearms laws and regulations.”
4. Manpower. That brings us to the most important fact, the federal government simply does not have the manpower to enforce all its laws already. The new Kansas law doesn’t just deal with firearms made within the state. It also bans all state and local agents from enforcing federal gun control measures. (learn about the bill in detail here). As Judge Andrew Napolitano has affirmed recently, such widespread noncompliance makes federal gun control laws “nearly impossible to enforce” (video here). So Eric can promise to enforce these federal acts all he wants. But if Kansas doesn’t help him, he might be able to get a 2% enforcement rate. Or, he’ll have to pull resources from other states.
WHAT SHOULD THE RESPONSE BE?
1. Hold the Line, and Tell Holder to buzz off. Seriously. This guy has been sending threatening letters to states around the country on medical marijuana laws for years (and so did his predecessors). In fact, those letters are often even more aggressive, threatening taking property or even criminal sanctions against state or local politicians. A letter last year threatened just that against the San Diego city council. (read it here) That community knows full well the threats that are constantly made against their liberties by Holder and his DOJ team. But they push on and keep doing what they believe is right. The People of Kansas need to stand strong in support of the 2nd Amendment and reject these threats from the DOJ.
2. Local resistance. Recognizing that manpower is a VERY serious problem for the feds, people in Kansas should be constantly reaching out to county, city and town elected officials to respectfully press them into passing local ordinances to ensure that no assets will be used to enforce federal gun control. Covering the states in ordinances that provide backup to the new federal law will ensure that federal gun control will be “nearly impossible to enforce.”
LEARN MORE AND GET ACTION ITEMS HERE
3. Call Sam Brownback. Flood his phone line with messages of encouragement and support. Let him know that the people have his back – that’s how governors show courage. Brownback has a chance to act like a hero to the entire country. In fact, people all over the country should send him letters in support – he’s going to need all the help he can get.
CALLS (for Kansans only) 785-296-3232
Mail (rest of the country)
Office of the Governor
Capitol, 300 SW 10th Ave., Ste. 241S
Topeka, KS 66612-1590
(or email here)
4. Support efforts in other states. Kansas can’t do it alone. A similar bill is up for a signature in Alaska. Bills are moving forward in Missouri, Alabama and elsewhere. Every state and local community that does the same will make federal enforcement even more difficult, and eventually, the feds can pass all the “laws” they want, but they won’t have any effect.
Track and model legislation here: http://tracking.tenthamendmentcenter.com/2nd
JUST SAY NO!
The bad guys always talk tough, and they want to scare you into compliance . But the fact remains – they don’t have the manpower to carry out all their threats. Even with almost full state and local cooperation, there are now 18 states defying DC on marijuana prohibition. As two states – Washington and Colorado – legalize what the feds say is illegal, we’re watching the beginning of the end of federal dominance over the states.
On the right to keep and bear arms, people should follow the same path. Just say NO to Washington DC, and YES to liberty.
Michael Boldin [send him email] is the founder of the Tenth Amendment Center. He was raised in Milwaukee, WI, and currently resides in Los Angeles, CA. Follow him on twitter – @michaelboldin, on LinkedIn, and on Facebook.
Eric Holder threatens a lot of people. It’s time all the States need to stand up to the little despot. Tell Eric Holder to buzz off. He can’t put all of us in jail!
The law can be a tyrant, but it is still the law, until changed. I am a very Conservative Christian (just to the right of Limbaugh), but I also have 35 years of legal experience. To put it bluntly, the nullification doctrine is totally bogus. Yes, Civil Disobedience is an option and I fully support it. Civil Disobedience against a moral wrong is fine. If we land in jail for a short period of time, that is fine too. (the courts are way too liberal for us? Too bad. It is because we have been lazy and asleep at the switch for about 75 years, while the libs were packing the courts with liberals. But, that CAN be reversed)
BUT, the ONLY way to prove a federal action as unconstitutional is to challenge it in court. I understand that we have a vile Fed. govt now, but, in different times, what if the Feds advocated a really good moral law, and then the governor or some state said he thought it was “unconstitutional” and “nullified” it, which really upset 90% of his constituents? Exactly same situation, just different moral judgments. So, the short answer is that each of us (or even each state) cannot decide what is Constitutional and what is not. I believe that is what is called “anarchy.” So, Civil Disobedience is fine, but don’t waste your time on this bogus “nullification”. Liberals are thrilled to see you spend time and money on this dead end because it diverts you from some more meaningful conservative work.
I would add a few points. If the federal government is permitted to pass laws that clearly violate the
federal Constitution then the Constitution becomes meaningless. Jefferson and Madison in responding to the Alien and Sedition Acts clarified how states should respond to such federal laws. Please see this article written by Tom Woods.
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