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Monday, December 5, 2016

by Lois Beckett, ProPublica

In mid-April, Kansas passed a law asserting that federal gun regulations do not apply to guns made and owned in Kansas. Under the law, Kansans could manufacture and sell semi-automatic weapons in-state without a federal license or any federal oversight.

Kansas’ “Second Amendment Protection Act” backs up its states’ rights claims with a penalty aimed at federal agents: When dealing with “Made in Kansas” guns, any attempt to enforce federal law is now a felony. Bills similar to Kansas’ law have been introduced in at least 37 other states. An even broader bill is on the desk of Alaska governor Sean Parnell. That bill would exempt any gun owned by an Alaskan from federal regulation. In Missouri, a bill declaring federal gun laws “null and void” passed by an overwhelming majority in the state House, and is headed for debate in the Senate.

Mobilizing the pre-Civil War doctrine of “nullification,” these bills assert that Congress has overstepped its ability to regulate guns — and that states, not the Supreme Court, have the ultimate authority to decide whether a law is Constitutional or not.

The head of the Kansas’s State Rifle Association, an affiliate of the National Rifle Association, says she put the bill together and found it a sponsor. While the NRA regularly lauds passages of states’ gun-rights laws, it stayed silent on Kansas’ law, and, so far, has kept a low profile on nullification. (The group did not respond to our requests for comment.)

Many observers see nullification bills as pure political theater, “the ultimate triumph of symbolism over substance,” as UCLA law Professor Adam Winkler put it. He said he doubts the laws will ever be enforced, and, if they are, expects them to be struck down by the courts.

Winkler and others say nullification laws violate the Constitution, which makes federal law “the supreme law of the land…anything in the Constitution or laws of any State to the contrary notwithstanding.” Indeed, U.S. Attorney General Eric Holder wrote a letter last week to Kansas governor Sam Brownback, asserting that Kansas’ law is “unconstitutional.” (Brownback, who signed the bill into law, did not immediately respond to our requests for comment.)

But the growing number of such bills — which have passed by large majorities in at least one chamber of seven state legislatures–highlight the challenge gun control advocates face in their attempt to fight for gun regulation at the state level.

It also shows how nullification is fast becoming a mainstream option for state politicians. In Pennsylvania, 76 state legislators signed on to sponsor a measure that would invalidate any new federal ban of certain weapons or ammunition. The bill would impose a minimum penalty of one year in prison for federal agents who attempt to enforce any new law.

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