Dorothy (played by Judy Garland) delivered a famous line in the iconic film, "The Wizard of Oz." Dorothy matter-of-factly told her dog, "Toto, I've a feeling we're not in Kansas anymore." With the passage and the signing into law by Republican Kansas Governor Sam Brownback of the bill, "The Second Amendment Protection Act," it appears "America is no longer in Kansas."
The next chapter in the increasingly tense battle continues between the "gun rights advocates" versus the "gun law reform advocates." The last round when "Moms Demand Action for Gun Sense in America" forced the Target retail chain to back off its "open carry" policy in its stores. The victory was another lost battle for the National Rifle Association (NRA), in another in a series of losing battles for the NRA.
The Brady Center of Prevent Gun Violence, a gun reform advocacy group, is taking on the NRA once again in a lawsuit filed against the state of Kansas to strike down and stop enforcement of the "Second Amendment Protection Act," a 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.
Gov. Brownback isn't amused by the lawsuit and In response to the lawsuit, released a statement. "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."
In a reference to President Barack Obama and the Brady Center, Brownback added, "The Obama administration attacked this legislation when I signed it more than one year ago. It now appears that they have found some Washington DC lawyers to do their bidding. We will vigorously defend the rights of Kansans in this litigation."
The Brady Center filed its lawsuit in the U.S. District Court in Kansas, and argues the "Second Amendment Protection Act," enacted in April of 2013, is unconstitutional and should be struck down.
The law reads, 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 Brady Center says not so fast.
"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, the Director of Legal Action Project for the Brady Center. "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," added Lowy.
"The Act, if enforced, would have drastic and dire consequences for Kansas residents," said Lowy.
The Brady Center is concerned that the law would have unintended consequences and 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. The law could also cripple investigations of gun trafficking and illegal gun sales.
Lowry added, "Kansas’ gun nullification law is not just bad public policy, it is patently unconstitutional."
The lawsuit says that the Act is unconstitutional and 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.
"The statute is remarkable for its complete disregard of basic and long-established principles of constitutional law," said Stuart Plunkett, who is a partner in the firm of Morrison & Foerster and co-counsel in the lawsuit, Brady Campaign to Prevent Gun Violence v. Brownback.
"Our legal system would quickly breakdown if each of the 50 states were permitted to choose whether or not to follow federal law," added Plunkett. "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 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 Governor Nixon vetoed a similar law. The Brady Center is also suing New Jersey for compliance of its law on "smart gun" technology.