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Tilting at constitutional windmills

Published on -5/12/2013, 3:53 PM

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The Kansas Legislature recently passed a law denying the federal government the right to enforce federal gun laws in Kansas.

U.S. Attorney General Eric Holder says the law is unconstitutional and the Kansas Legislature, Gov. Sam Brownback and Secretary of State Kris Kobach say it is constitutional. The Kansas attorney general has indicated $225,000 from state general funds be sent to his office to pay the lawyers and staff that will be needed to defend the law.

The current controversy seems to center around Article I, Section 8, Clause 3 of the Constitution, which reads: "Congress shall have the power to regulate commerce ... among the several states ..." Presumably, Congress has jurisdiction over interstate commerce and the states over intrastate commerce.

The Kansas law purports to protect guns, ammunition and gun accessories manufactured in Kansas and that have never entered the stream of interstate commerce. The law also instructs Kansas police to arrest federal agents to enforce certain gun laws. Kobach, who helped write the law, has said "As a former professor of constitutional law, I ensured that it was drafted to withstand any legal challenge."

Kobach and other supporters of the law are asking us to take their word on the matter. Should we? Regardless of actual words in the Constitution, the fact is that the Constitution is whatever five Supreme Court Justices say it is, and there is nobody farther up the food chain to say it isn't so.

There are three reasons that the law might be unconstitutional, and the first is the commerce clause. Over the years, many more than five judges have said that Congress, exercising its commerce powers, can regulate purely local activity. In 2005, the court decided Congress, in passing the Controlled Substances Act under its commerce power, could pre-empt two cancer-ridden old ladies from cultivating marijuana plants for medicinal use even though they had a California prescription to grow and use the stuff under California law.

Just because the Kansas law purports to protect intrastate guns against federal agents from enforcing federal law doesn't necessarily save the Kansas law under the commerce clause.

A second reason the Kansas law might be in jeopardy is a concept called federal pre-emption. The Supreme Court has said that when the federal government acts and that action is so pervasive as to leave no room for state action, then such state action is pre-empted. That could very well be the case given Congressional creation of federal gun laws and the Bureau of Alcohol Tobacco Firearms and Explosives to enforce them.

A third constitutional problem for the Kansas law, and likely its biggest problem, lies in Article Six of the Constitution, which is often referred to as the "supremacy clause." The pertinent part to note in terms of the Kansas gun law reads, in part: "This Constitution and the laws ... and treaties ... shall be the supreme law of the land ... any laws of any state to the contrary notwithstanding."

This means that if a Kansas law is in conflict with a federal law then the state law must give way. Kansas legislators should not be surprised by this revelation, for Kansas Assistant Attorney General Charles Klebe told them about it in February.

Finally, a larger point that goes beyond this law: Kansas elected officials are no doubt aware of this and have said it themselves several times, but probably not in the context of the Second Amendment: No rights are absolute. Even conservative Supreme Court Justice Antonin Scalia has written, "Like most rights, the Second Amendment right is not unlimited."

All rights recognized by the Supreme Court are subject to reasonable regulations. If the point of this Kansas gun law is a political reaction to the relatively minimal gun regulations, such as background checks, being discussed by Congress, then the whole endeavor has been and will continue to be not only unconstitutional, but a waste of taxpayer money.

Steve Cann holds a Ph.D in political science and has taught constitutional law for 36 years. He is the author of the book "Administrative Law" and works and teaches in Topeka.

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