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Kansas Gov. Insists it’s OK to Ignore Federal Gun Laws

Gov. Brownback tells Attorney General Holder to respect the “sovereign will” of Kansas, which passed a law that makes enforcing federal gun laws a crime. Gov. Brownback tells Attorney General Holder to respect the “sovereign will” of Kansas, which passed a law that makes enforcing federal gun laws a crime.

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(Getty Images)

This post has been updated.

As we detailed yesterday, dozens of states are considering bills that attempt to nullify federal gun laws. One such bill became a law last month in Kansas. It exempts “Made in Kansas” guns from federal regulation and makes it a crime for federal agents to enforce federal law. 

Attorney General Eric Holder recently wrote to Kansas Gov. Sam Brownback, saying the law is “unconstitutional,” and that the U.S. is prepared to sue Kansas to prevent the state from “interfering with the activities of federal officials.”

Now, Brownback has fired back.

In a letter to Holder yesterday, Brownback wrote: “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.”

Local news reports have highlighted an estimate from Kansas’ attorney general that defending the new law in court could cost the state $225,000 over the next three years. Attorney General Derek Schmidt did not immediately return a request for comment.

“Our office has received more than 300 emails and calls in the last two days from Kansans and Americans from around the country thanking the governor for his response,” Brownback’s spokeswoman, Sherriene Jones-Sontag, wrote in an email. She also cited the many favorable comments on the governor’s Facebook page.


Kansas’ Secretary of State Kris Kobach, who helped draft the new law, also released a response to Holder’s letter. “As a former professor of constitutional law, I ensured that it was drafted to withstand any legal challenge,” he wrote.

“The Obama Administration has repeatedly violated the United States Constitution for the past four-and-a-half-years. That abuse cannot continue.”

Kobach told ProPublica that he does not consider Kansas’ law to be “nullification,” because the law only asserts that federal regulations do not apply to guns that are made in Kansas, and have never crossed the state’s borders.

“Nullification implies that you’re saying the whole federal law is wrong. That was the nullification of the 19th century. We’re not doing that…we’re acting with a scalpel.”

Kobach said he did not craft the legislation with the goal of provoking a legal battle. He said it’s also possible that the Justice Department will “decide that actually their legal position is not as clear as they thought” and back down.

Before the law can be challenged in court, he said, someone will  have to be “directly injured”  -- for instance, if the federal government decides to crack down on a Kansas gun manufacturer who decides to start making “Made in Kansas” guns without a federal license.  

“We’re a long way from litigation at this point,” Kobach said.

Kansas’ Secretary of State Kris Kobach, who helped draft the new law, also released a response to Holder’s letter. “As a former professor of constitutional law, I ensured that it was drafted to withstand any legal challenge,” he wrote.

“The Obama Administration has repeatedly violated the United States Constitution for the past four-and-a-half-years. That abuse cannot continue.”

Kobach told ProPublica that he does not consider Kansas’ law to be “nullification,” because the law only asserts that federal regulations do not apply to guns that are made in Kansas, and have never crossed the state’s borders.

“Nullification implies that you’re saying the whole federal law is wrong. That was the nullification of the 19th century. We’re not doing that…we’re acting with a scalpel.”

Kobach said he did not craft the legislation with the goal of provoking a legal battle. He said it’s also possible that the Justice Department will “decide that actually their legal position is not as clear as they thought” and back down.

Before the law can be challenged in court, he said, someone will  have to be “directly injured”  -- for instance, if the federal government decides to crack down on a Kansas gun manufacturer who decides to start making “Made in Kansas” guns without a federal license.  

“We’re a long way from litigation at this point,” Kobach said.


Similar bills nullifying federal gun laws are continuing to advance in at least three other states: Louisiana, Missouri, and Alabama. In Alaska, a bill exempting any gun possessed in Alaska from federal law has been approved by the state legislature and is awaiting action from Gov. Sean Parnell. Bills attacking federal gun laws have been introduced in at least 37 states this year.

Many of the bills have caveats. In Kansas, for example, the law specifies that state will not actually arrest federal agents who try to enforce gun regulations.  

Bills in other states, including Montana, Wyoming, and Tennessee have attempted to go further. The approved version of Alaska’s bill removed a measure that would have allowed state law enforcement to arrest federal agents for trying to enforce gun laws.

5/3/2013: This post has been updated with comment from Gov. Brownback’s office and Kris Kobach. 

Nice of Sam to actually document his lack of understanding and clear violation of constitutional law. Have to wonder if either the Governor or his Secretary of State has ever actually read that document.

Curious that ProPublica’s coverage of the legal conflict over state’s rights centers on the far-left funder’s fascination with firearms regulation and ignores the 800 pound guerilla in the liberal cafe - state legalization of hemp contrary to federal health care regulations.

Why is it a far left thing to want firearm regulation? I am sure there are rightwingers whom would love not to be shot multiple times by a person with an assualt rifle..

Next, you think the state legaliation of hemp is the 800 pound gorilla in the room. Sounds to me you are taking the talking points from the lobbist, which explains your comments above.

You don’t want any gun regulation and now you attack Hemp? Are you aware that regulation against Hemp was spawned by the logging company and paper lobbyist? Do you think it is in America’s best interest to have trees?  Why do you think it makes sense to stop America from having a cash crop?

Sometimes, you need to step back and see whats best for the country and not whats best for your political party, which is being bought by lobbist.

Anti-Automatic Weapons should not be a left vs right thing. Not everything should be political.

I think the Attorney General Eric Holder is right regarding the attempt by the state of Kansas to subvert federal law on firearms.  The line of reasoning employed by the governor and secretary of state of Kansas seems legalistic and short-sighted.  This movement is headed into absurd and dangerous territory.  In what ways, specifically, have the people of Kansas been deprived of the “Right to Bear Arms”?  Is the state of Kansas now at liberty to declare automatic weapons (or worse) of any kind are legal and necessary demonstrations of the right to bear arms.  Could we not pause for a moment to consider and compare the kinds of arms our forefathers used with modern weaponry (varieties that are clearly far more lethal)?  I am not opposed to owning a firearm, a hunting rifle or shotgun at all but there is something very distorted and troubling about the deep-seated emotional attachment to guns held by far too many of our citizens.  Has the world become that perilous for them to exist in?  Lastly, did we not fight a civil war 150 years ago to settle federal vs. state’s rights issues like this?  Are we not a union of states?

Barbara Hodges

May 3, 2013, 5:09 p.m.

O.K. here we go again! Another Civil War because some states don’t like the Government telling them what to do. We are not a Union unless FEMA is needed.

This could be Obama’s Eisenhower moment. His Little Rock.

It’s been frightening to watch my state taken over by right-wing extremists like Brownback, Kobach, and the nutjobs in the Legislature. These letters shouldn’t surprise anyone. My state’s elected officials hate the United States, hate the President, and hate the Constitution. Make no mistake: they are bound and determined to reestablish the Confederacy.

Gary the Gun Nut

May 3, 2013, 5:31 p.m.

Among other problems with this concept of state nullification of federal gun control laws is that many of the guns manufactured and/or sold in the nullification-minded states end up in other states, often illegally, and/or are used in the commission of crimes. So from that perspective, federal gun control laws are not only fully Constitutional, but necessary.

I can understand the notion of Kansas refusing to enforce Federal gun laws as it’s the federal government’s obligation to do so.

However, when they attempt to pass legislation to “make a crime” the enforecement of those federal laws by federal agents, you have in essence a rogue state that refuses to be governed. 

A state’s sovereignty does not trumpt the Federal government.  The Kansas governor is wrong on this issue, and on the law.

Liberals’  would like all states to be same so us Libertarians could not find a state to escape to! Some people aren’t cozy unless they are CONTROLLED…

A stereotypical characteristic of the Brownback’s of this country is their total inability to even consider the larger implications to society if it detracts from their fantasy of being a John Wayne hero.

Somehow I thought the surrender at Appomattox in 1865 had put to rest the idea of nullification. I am not a legal beagle but it sure looks like Sam Brownback has stuck his religiously tainted mind out a mile on this one. Too many meals of unripe corn?

Some constitutional scholars these guys are. If they really were such well educated gentlemen, they’d not have forgotten all about the Supremacy Clause.

Article VI, Clause 2 of the United States Constitution says:

“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

So sorry, gents. I think Mr. Holder has the upper hand here.

James Sandel

May 3, 2013, 8:15 p.m.

So, I guess by the same reasoning, Kansans can start manufacturing rockets, missles, tanks, fully automatic assault weapons and other artillery, as long as they are made to be sold within the state borders.  How about nuclear suitcase bombs???  Could get rid of an awfully lot of undesirable lefties with a few of those.

My my, this opens up a whole universe of bizarre possiibilities.  I assume that would include legalizing psychedelic drugs, since apparently the governor and his attorney general are tripping.

HEY….lets have a domestic arms race.  LOL

How bizarre is it that Brownback relies on “2nd Amendment” rights to establish the basis for this ill advised lawsuit. 

He ignores that 2nd amendment rights [which he describes as their “sovereign will”] are created by the Federal government. 

This is a mindless lawsuit. The notion that states can one day resist the Federal government from enforcing its own federal laws is nothing short of insane.

Clinton Gallagher @virtualCableTV

May 3, 2013, 9:46 p.m.

The Obammunists will invade each state to raid and arrest the state’s citizens anyway as their agents will not be arrested or otherwise prevent from doing so. WTF?

This grandstanding by RINOS ought to tell everybody loud and clear what phonies these so-called Republicans are.

In many of our opinions, the Federal Government is attempting to bypass the 2nd amendment .
Kansas and all States are required by law to uphold the Constitution. The States may see the Federal Government as refusing to do its constitutional duty. A Federal failure to obey its oath to uphold the Constitution; doesn’t obligate State officials to ignore their oath to uphold the Constitution, nor to discontinue imposition of Constitutional law.
That is not the nullification of Federal law. It is the imposition of Federal law on a higher authority who has refused to accept its Constitutional duty.
Our Constitution is the supreme law of the land. The imposition of that supreme law may occur at any lower level.
Marvin Fox

I stand with Kansas.

Just 300 emails of support from the whole state of Kansas?  I would think that bodes poorly for the governor’s reelection.

I am going to ask my Governor Mr. Brownback and his side kick Kobach to nullify slavery, I need a few good hands around the farm.  After all if the slaves never cross the state line then we in Kansas have the right to own slaves yes?

@ Paul Hoover If you can somehow find a legal way to traffic slaves into Kansas, then you would be correct.  That’s the problem with this lawsuit. It would set an awkward precedence.

@everyone Kansas could nullify not only the federal abolishment of slavery, but anti-trust laws, interstate commerce laws,  voting rights for women.. and on and on. 

Imagine, the FBI would have no jurisdiction in Kansas to investigate crimes.  How would the electoral college be impacted? Would *Kansasonians even participate in elections?  Actually that would help Obama’s democrats a lot.

Hey the distribution of all that good Kansas beef would no longer be regulated by the USDA.  It would be the KDA.. or something like that.

Why would Kansas even use the USD. Why not circulate it’s own state currency.  Why not just secede from the union all-together?

Any state that refuses to be governed by the federal body of power that created it’s very own existence is a rogue state.  Point blank.  And the Federal Government [at that point] has the right to do everything within it’s legal powers to whip that state into submission. 

This is a mindless lawsuit and an intellectual drain.

The federal government is limited to those powers as enumerated in the Constitution.

I recently read the Constitution and did not find any Constitutional provision granting the Federal Government authority to regulate intra-state manufacture and sale of arms.

@BrianP your read of Paytons comment so ignorant of what Payton said, and internally contradictory it would be prime John Stewart material if Stewart were one to criticize left wing lunacy.

“Not everything should be political.” BrianP writes, at the end of a post that roundly politicizes an apolitical criticism of ProPublica’s politically biased reporting.

“You don’t want any gun regulation and now you attack Hemp?” BrainP writes, yet Payton neither expressed a preference about the scope of firearms regulation, nor expressed any support or opposition to hemp prohibition. Instead, Payton indicated that states rights when state laws contradict federal laws broach the same questions whether the topic is firearms regulation or hemp prohibition, and suggests that ProPublica would do better to report the broad scope of conflict between state and federal laws, rather than cherry picking a favorite left wing issue.

Which brings us to another point: “Why is it a far left thing to want firearm regulation?” BrianP writes. That would be a question the far left could answer. They chose the issue. Far right and moderate rightwing groups don’t tend to introduce firearms regulation as a plank in political campaigns. Moderate left wing groups advance firearm regulation as a plank usually in response to prodding from funded far-left groups and publications.

Finally, BrainP writes"Sometimes, you need to step back and see whats best for the country and not whats best for your political party, which is being bought by lobbist.”

Sometimes one needs to step back and see what’s best for public discourse, which is what Payton did. Sometimes one needs to step back and see what someone else is saying before assuming an emotional reaction to a statement says more about the statement than a strict interpretation of what a statement says. That’s what BrianP failed to do.

Haha “Gary the Gun nut” was auto-completed in the name spot of some liberal meaning to post with their real name. Cryolyn? I think so.


Payton2 that is too funny because it is so spot on.

Gary the Gun Nut

May 5, 2013, 6:05 p.m.

@John Smith. And that comment comes from someone using the name “John Smith”. Really? (Perhaps you meant to use “John Doe”.)

@cryolyn. I was just calling you out on a funny mistake you obviously made, nothing in regards to using any online alias as a negative.

While I hate guns, myself, my problem with gun control laws is that the entire point of the right to bear arms (look at it in context, wedged between the first and third Amendments) is to prevent an overreaching government from making, say, Waco a regular occurrence.

The principle is that the citizens have a right to beat back a government that decides to kidnap, torture, indefinitely imprison, and execute American citizens without a right to trial.  We have a right to fight back when telecommunications companies are given immunity for spying on its customers.  We have a right to fight back when Congress tries to criminalize anonymity.

I don’t recommend that we do so, by any means.  But, when the government says that they need to see who’s allowed to have weapons, they’re saying that we no longer have that right, that their authority should be absolute in these matters, no matter what they use that authority for.

Of course, the NRA would rather babble incoherently about their rights to hunt and to be vigilantes and to threaten to murder people who disagree with them (“an armed society is a polite society,” remember).  They’ve done more damage to the Second Amendment than any anti-gun politician ever could.  They’ve reframed the debate far away from what it’s supposed to be about, which is how to make sure our great-grandchildren can stop an abusive government.

Closer to the actual topic, though, the Kansas situation is very interesting.  It’s a good test to see whether people believe that we live in a country governed mostly by principles (as outlined in the Constitution, to which most elected officials are bound by oath to defend) or by authority (in that the stronger government has more say).

Andrew Reinbach

May 6, 2013, 9:56 p.m.

Guns made in Kansas are exempt from federal law? See below.

Kansas State Constitution, Article 15, Section 14:

“Oaths of state officers. All state officers before entering upon their respective duties shall take and subscribe an oath or affirmation to support the constitution of the United States and the constitution of this state, and faithfully to discharge the duties of their respective offices.”

US Constitution, Article VI, paragraph 2 & 3:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be m
ade, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;”

Three points if I may.  Firstly this bill attempts to do two things at once: (1) declare intra-state weapons exempt from federal firearms laws; (2) block federal officers from enforcing federal laws.  The former may be narrowly doable but it would mean directly attacking the central legal precedents of a shared market that undergird federal drug laws, food inspections, environmental and labor laws, and likely a number of other activities.  If that is a fight that Kansas wants to take on so be it but this is not limited to guns nor will it be that cheap to defend.  The latter, however is probably undoable.  By being part of the Union Kansas has agreed to be bound by federal laws ergo they cannot forbid federal officials from enacting those laws only get the laws themselves revoked or declared unconstitutional which is different from sending state police to bust FBI agents. 

Secondly, If the governor has a list of unconstitutional acts being conducted by the Executive Branch then, as a sitting governor, he can sue the federal government for those violations directly rather than assert them ad-hominem to justify this. 

And thirdly, it is incorrect to claim that they are long way from a lawsuit at this point.  Federal, and I believe most state, courts can prejudge laws where the constitutionality is at issue.  This is the principle under which the Affordable Care Act was challenged before implementation.  The same thing could very easily be done with this law.  Federal courts, and it would be federal since this is a U.S. Constitutional Issue, may decline to deal with it now and wait for actual harm but that is not guaranteed.

Since the Federal Government is one of enumerated powers, and since the Constitution does not contain a provision granting it the authority to legislate regarding the right of individual to keep and bear arms, any attempt by the Federal Government to do so is void, ab initio.

With respect to that principle; the Court in “Marbury” wrote that, since the Constitution had not given Congress the power to increase its [the Court’s] jurisdiction, a provision of The Judiciary Act purporting to grant it the authority to issue a writ of mandamus, was void.

Since the Constitution does not restrict the authority to decide the constitutionality of Acts of Congress to the Court, [see, Thomas Jefferson remarks on the subject] and since the Constitution contains no provision granting the Federal Government authority to legislate on the rights of the individual to keep and bear arms, there is no legal reason why the State of Kansas must defer to Congress.

As with other matters, The Federal Government can seek to enforce the law through the courts.

Andrew Reinbach

May 7, 2013, 11:19 a.m.

Sam Lowe’s comment sounds great, but it’s less filling. There is nothing to his claim that this is about the right to bear arms;which in the Constitution applies only to the people, and not to corporations (and just to forestall you, Mr. Lowe, Citizens United applies to speech, not the right to bear arms)

Firearms are manufactured items like any other, and thus subject to interstate regulation. And as Justice Marshall said in 1824 in Gibbons v. Ogden, “Few things were better known, than the immediate causes which led to the adoption of the present constitution ... that the prevailing motive was to regulate commerce; to rescue it from the embarrassing and destructive consequences, resulting from the legislation of so many different States, and to place it under the protection of a uniform law.”

Even Originalists agree with this interpretation, as per Georgetown Law professor Randy E. Barnett, who in his “The Original Meaning of the Commerce Clause” says that “…according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another….”

Thus Gov. Brownback’s posture is deeply unlikely to go anyplace. And even if,  by some miracle, the SCOTUS upheld his law , he would only be harming his own state, since there are 253 gunsmiths and gun manufacturers in Kansas, at least some of which sell their products in other states.Likewise, some Connecticut arms manufacturers have lately said they are considering moving to Kansas to avoid what they consider overly-restrictive regulations there. Under Gov. Brownback’s proposal, they would still be subject to the Commerce Clause and Gibbons v. Ogden unless they ended their interstate business. Looked at that way, the whole thing is a meaningless gesture intended for political gain only, and need not be taken seriously.

From both the article and the comments, it seems the issues isn’t nullifying federal law; but which laws are nullified.

Given the absence of concern over the nullification of the marijuana laws (some of us don’t wish to be in a collision with any intoxicated driver) and the concern over nullification of firearms laws, it is more than clear that the real issue here isn’t nullification at all.

It is terribly funny when one is accused of referring to some sort of “talking points” when one applies elementary logic and critical thought to an article.

For Alex, the Constitution and the Second Amendment aren’t “rights” granted by the federal government; they are inalienable and were considered to be endowed and not under the power of government to alter. Hamilton opposed the Bill of Rights; wiser heads prevailed and made sure to enumerate certain rights, with the assumption that others were also inalienable.

Constitutional history is fascinating; I advise everyone to study it.

Andrew Reinbach
0 minutes ago
Sam Lowe’s comment sounds great, but it’s less filling. There is nothing to his claim that this is about the right to bear arms;which in the Constitution applies only to the people, and not to corporations (and just to forestall you, Mr. Lowe, Citizens United applies to speech, not the right to bear arms)

... Justice Marshall said in 1824 in Gibbons v. Ogden, “Few things were better known, than the immediate causes which led to the adoption of the present constitution ... that the prevailing motive was to regulate commerce; to rescue it from the embarrassing and destructive consequences, resulting from the legislation of so many different States, and to place it under the protection of a uniform law.”
Even Originalists agree with this interpretation, as per Georgetown Law professor Randy E. Barnett, who in his “The Original Meaning of the Commerce Clause” says that “…according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another….”
============
The article addresses the putative nullification issues surrounding Kansas’ attempt to avoid having to comply with Federal gun Laws by enacting legislation exempting intra state manufactured guns from their purview, which, because Congress has not been granted such power is facially unconstitutional. If the Constitution hasn’t granted a power tp Congress, any decision to not follow it isn’t actually nullification, because there was never a law in the first place.
I didn’t address the clause which gives Congress the power to regulate commerce among the states, which is another issue altogether.  Let me repeat the qualification, AMONG the states. And, indeed, if, as your statement implies, Randy Barnett has approved anything other than the words of the Constitution giving Congress the power to regulate commerce among the several states, I’d be very surprised and would like to see it in full context. 
 
I merely pointed out the general principle that if Congress has not been granted the authority it has not the power to regulate anything. The “Commerce Clause” by its terms give Congress the power to regulate only interstate commerce, and while Congress and the Supreme Court have often used rhetorical legerdemain to enact and/or approve extra constitutional legislation that doesn’t make it right. In fact,  in my view, it is dangerous to turn one’s Constitutional freedoms over to a group which regularly votes according to the cultural/political imperatives of its members.

Which observation applies even to the Court’s liberal wing which, in order to save their President’s Health Care Act,  adopted Chief Justice Roberts’ spurious [and politically calculated] finding, that the “penalties” for having failed to engage in interstate commerce with large insurance corporations, was a tax.

Andrew Reinbach

May 8, 2013, 8:33 a.m.

In the first place, I am amazed to discover that anyone as able to write a sentence as you are believes nullification is a valid theory. Not only was the matter was settled forever at Appomattox Courthouse—the Kentucky and Virginia Resolutions were never adopted by those states and thus are mere talking points at best.

In any event Sam Lowe, we agree: Despite your original premise, you concede this is a matter of the Commerce Clause and not the Second Amendment. And since it applies only within Kansas to guns manufactured in Kansas and never leave the state—it will be impossible to prove such a condition exists—it’s just a meaningless political stunt that need not be taken seriously, except by Governor Brownback, who is violating the federal and Kansas Constitutions and his oath of office.

Andrew Reinbach

May 8, 2013, 8:40 a.m.

I am amazed, Sam Lowe, to discover that anyone as able to write a sentence as you are believes nullification is a valid theory. Not only was the matter was settled forever at Appomattox Courthouse—the Kentucky and Virginia Resolutions were never adopted by those states and thus are mere talking points at best.

In any event, we agree: Since, despite your original premise, you accept the issue is the Commerce Clause and not the Second Amendment, and it will be impossible to prove that none of the guns manufactured in Kansas ever leave Kansas, the entire matter is a meaningless political stunt. Meaningless, that is, except to Governor Brownback, who has violated the federal and Kansas Constitutions, and his oath of office, and is thus vulnerable to removal.

Andrew if you don’t like guns just don’t buy one…respect the honest everyday tax payers that so believe that we have the right to protect our families, it is GOD given,

Andrew Reinbach

May 8, 2013, 9:43 a.m.

I have nothing against guns, BobOkie; as inanimate objects go, they’re fun. This is a discussion about the Constitution.

As for respecting honest everyday taxpayers—you should do the same. The NRA doesn’t represent the majority opinion of the American People, as every poll shows. And please don’t drag religion into this; it begs the question of which religion and merely serves to muddy the waters about a discussion about the Constitution, which nowhere mentions God.

“In the first place, I am amazed to discover that anyone as able to write a sentence as you are believes nullification is a valid theory. Not only was the matter was settled forever at Appomattox Courthouse—the Kentucky and Virginia Resolutions were never adopted by those states and thus are mere talking points at best.”
==============
Why do you prevaricate?  This is supposed to be a discussion based on facts.  The Acts were in fact passed by both legislatures.
  http://www.americanhistorycentral.com/entry.php?rec=484&view=external-links

  http://www.u-s-history.com/pages/h466.html

“In any event Sam Lowe, we agree: Despite your original premise, you concede this is a matter of the Commerce Clause and not the Second Amendment.
============================
Your rhetorical dishonesty continues. I have not expressed no such opinion.

Further, you claimed that Randy Barnett had expressed the view that the Commerce Clause gave Congress the power to regulate any commerce, interstate and intrastate, and when challenged to support that assertion, refused to provide factual support, and then went on to dishonestly claim that I had conceded that the Commerce Clause and not the Second Amendment applies to the issue.

Your rhetorical mendacity is obvious to anyone who has followed the colloquy, which appears to be protected more by the Establishment Clause than any other constitutional provision. .

Thank you, Sam Lowe, for having the courage to delineate the dishonesty of the statements made by the other poster.

He also begs the question as to whether resisting an unconstitutional act comprises “nullification”; in addition, he remains silent on several other laws that various states have nullified. Immigration law requiring the deportation of felons is ignored in California; drugs laws are ignored in Colorado and Washington.

His issue isn’t commerce, nor is it nullification; he simply hates firearms.

Andrew Reinbach

May 8, 2013, 5:52 p.m.

Sam Lowe, you are correct and I was wrong; the Virginia and Kentucky Resolutions were indeed adopted by their respective state legislatures.Thank you for correcting me on that point.

That does not make me wrong, however, when I point out that the doctrine of nullification was settled at Appomattox Courthouse, that the Supremacy Clause exists, that both the US and Kansas Constitutions require governors to swear to uphold the Constitution, or that therefore, signing an unconstitutional law would be an unconstitutional act that could lead to Governor. Brownback being removed from office (although I doubt that will obtain—more likely, everybody will forget all about it).

As for your claim that I am rhetorically dishonest, I think it’s fair to point out that you originally claimed that the issue was the Second Amendment (“Since the Federal Government is one of enumerated powers, and since the Constitution does not contain a provision granting it the authority to legislate regarding the right of individual to keep and bear arms, any attempt by the Federal Government to do so is void, ab initio. “); and that you later switched to claiming that the issue was the Commerce Clause (”... if Congress has not been granted the authority it has not the power to regulate anything. The “Commerce Clause” by its terms give Congress the power to regulate only interstate commerce, and while Congress and the Supreme Court have often used rhetorical legerdemain to enact and/or approve extra constitutional legislation that doesn’t make it right.). At least, that’s my reading of the exchange, since if you had stuck with declaring the matter a Second Amendment question, you’d have been arguing with my assertion that the right to bear arms applies only to people and not corporations. By not taking up that claim of mine, you accepted my premise.

As for your claim that I quoted Randy Barnett out of context: I cited the source of the quotation in my remark. You’re welcome to read the entire article for yourself. The quote in question is t the beginning of the piece.  In any event, I would welcome your showing me where you challenged me to support my quoting Barnett, not to mention moving from a reference from Barnett to the issue about the Commerce Clause versus the Second Amendment, especially since I first made the latter assertion, and then used Barnett to support my claim that it was a Commerce Clause issue..

The point, I believe, is that as a practical matter, it will be impossible for Kansas-based gun manufacturers to prove in a court of law that none of their guns ever leaves the state of Kansas. For that matter, it will be impossible for them to prove that they have perfect mechanisms in place to prevent their products from crossing state lines and entering interstate commerce, which Mr. Barnett observes is given to Congress to regulate. Thus, the Kansas law is, as I say, a mere political ploy with no meaning—grandstanding to whip up the base.

As for you, Nadjia: Not enforcing a law is not nullifying it. And in any event, there is no such thing as nullification—see the Supremacy Clause. In any event, your tiresome and mechanical repetition of the reactionary slogan that anyone who questions something “hates” it is an empty assertion meant to change the subject, and an unnecessary injection of emotion into this conversation. You don’t know me and have no basis for making any statement about my personal judgements at all, outside of my writing. You’re free to express any opinion you want; but it will remain just that—your opinion.

Well, when states pass laws legalizing something banned by the federal government, “nullification” is about the only word that does come to mind. Colorado and Washington have legalized marijuana; other states have done so for medicinal use.

Local governments in California have passed laws forbidding cooperation of law enforcement with immigration authorities. Sounds like nullification from over here.

Simply because they have not explicitly declared the federal law null and void does not mean that it is not nullification.

In any event, keep on trotting out the Interstate Commerce Clause; it holds equally for any other thing - from interstate shipments of pornography, seditious literature, or contraception. Your suggestions make it clear that you believe our rights are subject to the whims of government, and that the entire array of our civil liberties are secondary to the regulation of interstate commerce.

Andrew Reinbach

May 8, 2013, 10:25 p.m.

Think what you want. I have no expectations of convincing you; my comments are directed to the readers, whose opinion of this conversation will be the final.word.

I will start out with this, I am a Kansan. I thought that the new Kansas law was great! I started reading all of these posts and got absolutely pissed. For one, we are not a bunch of hicks. We have assault rifles and plenty of other guns. When is the last time you heard of a mass shooting in Kansas? Second, why is it that all of you want to be controlled. The government is in place for other reasons than to control every aspect of our lives. One other thing, people in Kansas aren’t anti United States. It is people like us in the rural states that are most patriotic. But when someone gets into office and starts saying that they are going to cut down on our rights, it downright gets us fired up. I think that guns are about the only power that the people actually have. Once you take that away, the people don’t have much left. The government wants to take away assault rifles. That might be ok to some people, but that is simply a starting point. From there, they start limiting other things and eventually,  guns will be one of those things that people hear about, but never see unless they are in a shooting or something. It might not effect you, but are your grandkids going to have that right?
Another thing, The 2nd amendment is in what is called the bill of rights. These are rights established when the constitution was put into place. The bill of rights are protection for the people from the government. The founders of this great nation just fought with their lives against a monarchy for freedom. This monarchy was controlling every part of these peoples lives. They one their freedom, and wanted to make a limited government so we didn’t get into the same problems. That is why we have these rights, and they should never be taken away.
One last thing. When the Boston marathon bombings occurred and the people behind it were on the loose, it had to be scary for the people in that area. I don’t know about you but if there is somebody dangerous in my area, I would feel a lot safer if I have an assault rifle next to me.
What im trying to say is that If you don’t want guns, then don’t buy one. But I feel that the best protection from a gun, is a gun. No matter what, bad people are going to have guns. Just like people that want to do bombings, get explosives. Its just going to happen. All of you out there that are against guns, fine. But don’t bother us in the heartland. About 90 percent of Kansans support Brownback and his new laws. We back him very strongly in this. And we are NOT against the United States. We love this country and fight for it, but when there are idiots that try and do things like this, we will stand our ground.

“That does not make me wrong, however, when I point out that the doctrine of
nullification was settled at Appomattox Courthouse.”
=============
The Civil War decided secession, not nullification. And, the fundamental principle that, a law enacted by Congress has not the authority to enact, is void, still obtainst. [Marbury v. Madison.] Hence, a federal law regarding intra state commerce is invalid ab initio
_______________________
“As for your claim that I am rhetorically dishonest, I think it’s fair to
point out that you originally claimed that the issue was the Second
Amendment (“Since the Federal Government is one of enumerated powers, and since the Constitution does not contain a provision granting it the authority to legislate regarding the right of individual to keep and bear arms, any attempt by the Federal Government to do so is void, ab initio.
“); and that you later switched”
=====
Since I neither dropped the Second Amendment or advanced an “either or” dichotomy, that statement is another example of rhetorical mendacity.
__________________________________
“As for your claim that I quoted Randy Barnett out of context: I cited the
source of the quotation in my remark. You’re welcome to read the entire
article for yourself.
====================
I made no such claim. You claimed he did. I challenged you to support the statement that he has taken the position that the power to regulate “commerce between the states” gives Congress the power to regulate commerce intra state. When challenged, most serious debaters move with alacrity to establish a factual basis for their statements.

The challenge remains.
_____________________
“The point, I believe, is that as a practical matter, it will be impossible
for Kansas-based gun manufacturers to prove in a court of law that none of
their guns ever leaves the state of Kansas.”
====================
In this country, the government has the burden of proving any alleged violation of the Constitution or law. As such, Kansas would not have to prove that no gun ever leaves the state. The Federal Government would have to prove that they did.

Andrew Reinbach

May 10, 2013, 11:12 a.m.

Sam Lowe, your ability to draw fine distinctions demonstrates that you will be an excellent lawyer, if you’re not already a lawyer.

However, you’re still wrong. The Supremacy Clause stands, and if it does, there is no nullification. If there is no nullification, there is no need to decide it, in the same way that, since there is no right to secede, the Southern States never seceded, and the Civil War was a rebellion, and not a war between sovereign nations.

With regard to Mr. Barnett:

I said “Even Originalists agree with this interpretation, as per Georgetown Law professor Randy E. Barnett, who in his “The Original Meaning of the Commerce Clause” says that “…according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another….”

You responded by saying ” And, indeed, if, as your statement implies, Randy Barnett has approved anything other than the words of the Constitution giving Congress the power to regulate commerce among the several states, I’d be very surprised and would like to see it in full context.”

I then pointed out that I had provided the source for the quote, which you claimed I had not done—or, at least, that I had not done sufficiently to satisfy you. We will have to disagree on that point, since the question of what constitutes sufficient context is elastic.

In other words: Your claim speaks for itself.

As for which side will have to prove what: as a practical matter, and whether the burden is on the state or federal governments, proving that guns manufactured in Kansas have left Kansas will be a very simple matter, leaving the entire issue to apply only to those very few, very tiny companies that have manufactured guns that have never left Kansas—if any exist.Thus the premise of this entire debate reaches the vanishing point, since even if it can be proven that Gov. Brownback’s signing this resolution into law isn’t unconstitutional, it has no practical application, cannot therefore be a matter of (non-existent) nullification and is thus, as I’ve said, a mere political ploy with no substance, designed to whip up the base.

Beyond this, I refer you to my previous comments to Nadjia;“Think what you want. I have no expectations of convincing you; my comments are directed to the readers, whose opinion of this conversation will be the final.word. ”

Background checks,Hell yes!However with the number of guns now in the hands of both responsible and IRRESPONSIBLE individuals,background checks probably won’t have much of an impact for at least twenty years.In the meantime there will be an influx of illegal weapons reminiscent of the prohibition era!

I find it inconceivable,if not absurd,that an individual suspected of terroristic leanings,can be placed on a no fly list but,still be able to purchase firearms or explosives!Perhaps someone out ther can enlighten me on this subject!!!

Andrew Reinbach:

“I said “Even Originalists agree with this interpretation, as per Georgetown Law professor Randy E. Barnett, who in his “The Original Meaning of the Commerce Clause” says that “…according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another….”
===========
“The lady doth protest too much, methinks.” Shakespeare, Hamlet, Act III.

We know that’s what you “said.”  However, Barnett’s quoted statement does not, as you dishonestly insinuated, cover intra-state commerce, which was the point under discussion. Having made that rhetorical insinuation, the burden is upon you to support it.

However, having already admitted to making one bogus assertion [ regarding the Kentucky and Virginia Resolutions] one’s credibility with respect to any others is, absent factual support, not credible.

Andrew Reinbach

May 13, 2013, 2:03 p.m.

What terrible manners you have, Mr. Lowe. Those of us living in the civil world tend to avoid calling each other liars unless we’re trying to start a fight.

As it happens, YOU are the one insisting we’re discussing intra-state commerce, not I. I have consistently pointed out that the number of gun manufacturers in Kansas that can prove that none of their products leave the state approach zero, so that the Commerce Clause certainly applies, and this Kansas law is a mere play to whip up Gov. Brownback’s base, and nothing serious, at all. You are engaging in what I like to call splitting as hair and arguing the true strand by insisting otherwise.

However, i stand by my last comment to you” “Think what you want. I have no expectations of convincing you; my comments are directed to the readers, whose opinion of this conversation will be the final.word. ” I suspect they’re capable of deciding who is lying here.

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