Tea-Publican Kansas asserts the long-discredited and rejected theory of nullification, interposition and secession over gun rights

Posted by AzBlueMeanie:

Those of you who remember your U.S. history will recall that Bleeding Kansas (1854-1861) was a proxy war between anti-slavery free-staters and pro-slavery "border ruffians" from the neighboring state of Missouri. It presaged the American Civil War, in which the Confederacy asserted the theory of nullification, interposition and secession.

While Kansas entered the Union as a free state in January 1861, 152 years later Neo-Confederate dead-enders are now in control of Kansas, and are once again asserting the long-discredited and rejected theory of nullification, interposition and secession — this time with respect to Senate Bill 102, also known as the Second Amendment Protection Act.

Eric Lach writes at Talking Points Memo, Holder Calls Gun Law Unconstitutional:

Remember all those gun nullification bills that cropped up
back in January? [Including one in the Arizona legislature.] Last month, Kansas went ahead and passed one. Senate
Bill 102, also known as the Second Amendment Protection Act, became
effective in Kansas on April 25. And it has led to a high-level back and
forth between Attorney General Eric Holder and Kansas Gov. Sam
Brownback (R).

Kansas’ Second Amendment Protection Act declares,
among other things, that firearms manufactured and owned in Kansas that
do not cross state lines are not subject to any federal laws. It also
makes it unlawful for government agents to try to enforce federal laws
on firearms made and kept within state lines.

The day after the measure went into effect, Holder sent a letter to Brownback.

“In purporting to override federal law and to criminalize the
official acts of federal officers, [Senate Bill] 102 directly conflicts
with federal law and is therefore unconstitutional,” Holder wrote in his
letter. “Federal officers who are responsible for enforcing federal
laws and regulations in order to maintain public safety cannot be forced
to choose between the risk of a criminal prosecution by a state and the
continued performance of their federal duties.”

Citing the Supremacy Clause of the Constitution, Holder said that
Kansas could not prevent federal employees and officials from carrying
out their official responsibilities.
The attorney general told Brownback
that federal agencies, including the Bureau of Alcohol, Tobacco,
Firearms, and Explosives and the Federal Bureau of Investigation, would
continue to enforce federal laws and regulations. Holder also warned
that the government would take “all appropriate action, including
litigation if necessary, to prevent the State of Kansas from interfering
with the activities of federal officials enforcing federal law.”

On Thursday, Brownback responded.

“The state’s Second Amendment Protection Act, which expressly
restates our commitment to these rights, was approved by wide,
bi-partisan margins in the Kansas Legislature,” Brownback wrote to Holder,
citing the bill’s passage margin in the state Senate (35-4) and state
House of Representatives (96-24). “The people of Kansas have clearly
expressed their sovereign will. It is my hope that upon further review,
you will see their right to do so.”

"This is a "states' rights" sovereignty claim that Governor Brownback is asserting, the code language of Southern segregationists who cling to the long-discredited and rejected (by Civil War and the 14th Amendment) theory of nullification, interposition and secession. He might as well be George Wallace standing in the school house door blocking federal marshals from enforcing a court order for desegregation.

The same day, Kansas’ Secretary of State Kris Kobach (R), who was one
of Senate Bill 102’s co-authors
, issued a much more aggressive
statement responding to Holder’s letter.

“Holder’s understanding of the United State Constitution is incorrect,” Kobach said in the statement, obtained by Propublica.
“As one of the co-authors of [Senate Bill] 102 and as a former
professor of constitutional law, I ensured that it was drafted to
withstand any legal challenge.”

This asshole again. Kris Kobach is formerly a lawyer with the Immigration Law Reform Institute, the legal arm of the anti-immigrant Federation for American Immigration Reform (FAIR), an organization that the Southern Poverty Law Center has designated a hate group. Kris Kobach was the author of Arizona's anti-immigrant bill SB 1070, which was almost entirely struck down by the U.S. Supreme Court in 2012. Koback is also the author of other anti-immigrant legislation, including the Alabama anti-immigrant law enjoined by the court of appeals that the U.S. Supreme Court declined to review last week. Kobach's highly inflated opinion of his own legal acumen is not supported by the facts or his track record. His assurances of constitutionality are not worth the paper it is written on.

Kobach accused Holder of making a “simplistic and incorrect claim” in his letter to Brownback.

“[Holder] rests his claim on the Supremacy Clause of Article VI,”
Kobach said. “However, what he fails to mention is the basic
constitutional rule that a federal law that exceeds Congress’s power has
absolutely no ability to preempt a contrary state law.”

This is an assertion of nullification, the legal theory that a state has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional. The theory of nullification has never been legally upheld; the Supreme Court has expressly rejected it. Moreover, the courts have held that the power to declare federal laws
unconstitutional lies with the federal judiciary, not with the states. Gov. Brownback and certainly Secretary of State Kobach do not get to decide the constitutionality of federqal laws. Their Neo-Confederate nullification theory is long-discredited and rejected, and has no support at law.

In his defense of the Second Amendment Protection Act, Kobach went
far beyond it. He argued that over the “past 80 years,” Congress has
used the interstate commerce power to regulate numerous subjects “that
have nothing to do with interstate commerce—including firearms.” He also
brought up the “Fast and Furious” ATF gun walking scandal, “the
executive amnesty for illegal aliens the DHS Secretary Janet Napolitano
launched in June 2012,” and accused the Obama administration of
“repeatedly” violating the constitution over the past four-and-a-half
years.

“With respect to any litigation,” Kobach said, “we will happily meet Mr. Holder in court.”

This is essentially a list of grievances by a "states' rights" Neo-Confederate dead-ender who rejects modern federalism, upheld by the U.S. Supreme Court as constitutional. Kobach may as well be writing the modern "Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union" for the secession of Kansas from the Union.

Kris Kobach may want to take this country back to the "good old days" of 1860 before the Civil War when people like him freely asserted the theory of nullification, interposition and secession, but few Americans would agree with him that those were the "good old days."

UPDATE: Pro Publica has more on this Tea-Publican fascination with nullification, interposition and secession. Nullification: How States Are Making It a Felony to Enforce Federal Gun Laws:

The Tenth Amendment Center,
a group that advocates nullification as the solution to a range of policy
issues, from marijuana legalization to Obamacare, publishes model gun
nullification language
. The
center has little direct contact with state legislators, Michael Boldin, the
center’s founder, said.

The roots of guns law nullification trace back nearly a
decade.

In 2004, Montana gun rights activist Gary Marbut drafted a
bill stating that any guns manufactured and retained in Montana are not part of
interstate commerce, and thus are exempt from federal regulation. The bill
failed twice, but it became law in 2009 after Republicans took control of the statehouse.
By Marbut’s count, at least eight states soon enacted “clones” of the
Montana law
. (Those laws don’t go quite as far as
the more recent nullification legislation. For instance, most of them don’t
make it a crime to enforce federal law.)

The federal Bureau of Alcohol, Tobacco and Firearms
responded to the earlier laws with letters to local firearms dealers
explaining that federal laws and regulations “continue to apply.”

The
day the Montana law went into effect, Marbut filed
a lawsuit

in federal court asserting the right to manufacture weapons in the state
without a federal license. The suit, now before the Ninth Circuit Court of
Appeals, has been backed by a large group of supporters, including Gun Owners
of America, the Second Amendment Foundation, the Cato Institute, the Goldwater
Institute
, and a group of nine
attorneys general
,
some of them from states that had passed their own versions of the Montana law.

Representatives
of Goldwater and the Cato Institute said they see the case as not primarily
about guns. Instead, they say, it’s meant to persuade the Supreme Court to
rollback the Congress’ power to regulate commerce within a state
.

“The
likelihood of victory is low,” said Trevor Burrus, a research fellow at the Cato Institute’s
Center for Constitutional Studies.

The latest set of
bills — including Kansas’ new law —represent a far broader and more
aggressive challenge to federal law. Even conservative organizations have been
skeptical of the trend.   

“A state law that
criminalizes federal activity — I would oppose that as both imprudent and
wrong,” Burrus said. The Cato Institute’s chairman wrote an op-ed this spring
arguing this kind of nullification is invalid
.

Goldwater Institute’s
Nick Dranias
, a constitutional expert [in his own mind], said the term “nullification” is
sometimes applied to legitimate attempts to exert state sovereignty, “and
sometimes it is essentially lawless civil disobedience.” 

States
should only pass laws challenging federal power "when there is a
reasonable legal argument for sustaining them," he said. And the penalty
for enforcing federal law in "hard cases" should be "a
misdemeanor at most." 

The Heritage
Foundation, a conservative research group, released a “fact sheet” last year
titled “Nullification: Unlawful
and Unconstitutional
.”
(The fact sheet
does not address guns in particular.)

The Montana activist whose helped inspired
the nullification movement Kansas is also a bit skeptical. While he simply chose
to challenge the federal government’s commerce power, Kansas is “bucking
federal power more generally,” he said.  

“I think, maybe tactically, they may
have gone a little further than they needed to,” Marbut said.

Though he supports the principles
behind the Kansas law, “I don’t know how much of that they can uphold when it
gets to the courts.”  

But Marbut
hopes that the rapid spread of gun law nullification bills across the country
will encourage the Supreme Court to hear his case.

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