Legislators say they’re trying to rein in federal arms control
By John Hanna
AP Political Writer
TOPEKA, Kan. (AP) — A new Kansas law taking effect this week declares that the federal government can’t regulate some guns within the state, but in the short term, it’s likely to remain more of a political statement than a practical curb on Washington’s power.
Legislators who pushed for the new law have said they’re trying to rein in a federal government that threatens to careen out of control and violate the right to bear arms guaranteed by both the U.S. and Kansas constitutions. The new law, signed by Republican Gov. Sam Brownback last week and taking effect Thursday, says the federal government has no authority to regulate firearms manufactured, sold and kept only in Kansas.
The Legislature’s debate over the policy has inspired a vigorous debate over whether the new law is likely to be upheld by the federal courts. But without a legal controversy — a confrontation between state and federal officials, for example — the courts would have nothing to settle. Until legal disputes arise, the law remains largely symbolic.
“Those would be fights that, if they come, we are well-equipped to handle,” Attorney General Derek Schmidt said during an interview last week. “How they might come, I think, is hard to predict.”
Pushing such a law gained urgency for gun-rights supporters this year, as President Barack Obama, some members of Congress and other officials discussed gun-control proposals in the wake of the massacre at a Newtown, Conn., elementary school.
But state Sen. Forrest Knox, an Altoona Republican and a leading advocate of gun-rights legislation, said sentiment to take on the federal government predates current discussions. The new Kansas law is modeled after a 2009 Montana law.
“My No. 1 priority this (legislative) session was to get Kansas to come against a federal overreach,” Knox said.
Patricia Stoneking, president of the Kansas State Rifle Association, said the new law also sends a message to gun manufacturers that Kansas is friendly territory, giving them an incentive to relocate from states where legislators are pursuing new restrictions. But she said it also addresses fears that the federal government will ban and even attempt to confiscate some weapons.
The new law also applies to ammunition and firearms accessories manufactured, sold and kept in Kansas. It will make it a felony for a federal agent to attempt to enforce any law, regulation, order or treaty affecting those items.
However, probation would be the presumed penalty for a first-time offender. And the new law says that federal agents would not be arrested or detained while they’re awaiting trial. Lawmakers involved in drafting the final, softer version said their goal was to ensure that any legal disputes center on the state’s assertion of its sovereignty, not the details of an agent’s
legal status.
But Allen Rostron, a University of Missouri-Kansas City law professor and a former senior attorney at the Washington-based Brady Center to Prevent Gun Violence, doubts the Kansas law can withstand a court challenge.
The U.S. Constitution grants Congress the power to regulate interstate commerce. The Kansas law declares that guns, ammunition and accessories manufactured, sold and kept in Kansas are not part of interstate commerce even if their parts come from outside the state, but Rostron said federal courts already have said congressional power is broad.
Also, he said, Kansas’ law would fail under the provision of the U.S. Constitution guaranteeing that federal law is supreme over states’ laws.
Still, Rostron said, enacting such measures can generate new cases, allowing supporters to hope that the courts will rethink past rulings.
“They’re trying to make a point, and they don’t even really care if the law is never effective,” he said after a recent program on gun issues at the University of Kansas in Lawrence.
“They’re going to make a point by making it kind of a declaration.”
When a Kansas House committee considered the proposed law, Secretary of State Kris Kobach, himself a former UMKC law professor, said it would pass constitutional muster. And Schmidt said the new law is “in a defensible posture” because lawmakers addressed “rough constitutional edges” in early versions.
Stoneking said, “We actually welcome a challenge.”
In Montana, the state’s Shooting Sports Association initiated a lawsuit in hopes of getting a favorable court ruling. However, a federal judge dismissed the case, upholding the federal government’s power to regulate guns manufactured, sold and kept in a single state, and the case is on appeal.
Thus, Kansas gun-rights advocates could fare better if their state’s law is never tested. With no legal challenge, supporters of the Kansas law can argue that the federal government hasn’t objected to the state’s declaration about the limits of federal power.
“That’s a good outcome, since the whole objective is to help encourage and to ensure the federal government doesn’t overreach its authority,” Schmidt said. “Maybe it’s served its purpose.”
