Kansas Bill Would Ban State and Local Enforcement of Federal Gun Control; Past, Present and Future

TOPEKA, Kan. (March 2, 2023) – A bill filed in the Kansas House would ban state and local enforcement of a wide range of federal gun control; past, present and future. Passage into law would represent a major step toward effectively ending federal acts that infringe on the right to keep and bear arms within the state.

The House Federal and State Affairs Committee introduced House Bill 2442 (HB2442) on Feb. 22. The legislation would ban state and local agencies and their employees from enforcing any past, present, or future federal “acts, laws, executive orders, administrative orders, rules, and regulations” that infringe on the right to keep and bear arms.

All federal acts, laws, executive orders, administrative orders, rules and regulations, whether enacted prior to or after the effective date of the Kansas gun rights preservation act, that are infringements on the right of the people to keep and bear arms within the borders of this state, as guaranteed by amendment II to the constitution of the United States and section 4 of the bill of rights of the constitution of the state of Kansas: shall be invalid and unenforceable in this state.

HB51 is similar to a law that was passed in Missouri in 2021, which is already having a significant impact on ATF enforcement capabilities in that state.

DETAILS OF THE LEGISLATION

HB51 doesn’t leave the definition of an “infringement” on the right to keep and bear arms up to interpretation. Doing that would allow courts and individual government agents to decide whether or not a federal action violates the Constitution and leave the enforcement decision to their discretion. To avoid this problem, the bill includes a detailed definition of federal acts that “infringe on the people’s right to keep and bear arms.”

(1) Any tax, levy, fee or stamp imposed on firearms, firearm accessories or ammunition not common to all other goods and services and that might reasonably be expected to create a chilling effect on the purchase or ownership of those items by law-abiding citizens;

(2) Any registration or tracking of firearms, firearm accessories or ammunition;

(3) Any registration or tracking of the ownership of firearms, firearm accessories or ammunition;

(4) Any act forbidding the possession, ownership, use or transfer of a firearm, firearm accessory or ammunition by law-abiding citizens; and

(5) Any act ordering the confiscation of firearms, firearm accessories or ammunition from law-abiding citizens.

Law abiding citizen is defined as “a person who is not otherwise precluded under state law from possessing a firearm.”

Under the proposed law, such infringements on the right to keep and bear arms would include provisions of the National Firearms Act of 1934, the Gun Control Act of 1968, the 2018 bump-stock ban, two ATF regulations from executive orders issued by Joe Biden – including the most recent pistol brace rule – proposed federal “red-flag laws,” and any future gun control schemes implemented by the federal government.

PENALTIES

The proposed law creates a cause of action for an individual to sue any state or political subdivision that employs a law enforcement officer who knowingly violates the law or “otherwise infringes on an individual’s rights ensured by amendment II to the constitution of the United States or section 4 of the bill of rights of the constitution of the state of Kansas.” They would be “liable to such individual for any damages resulting from such infringement and subject to a civil penalty of $50,000 for each occurrence.”

“Sovereign immunity shall not be an affirmative defense in any action filed pursuant to this section.”

Any state agency or political subdivision that knowingly employs an individual acting or who previously acted as an official, agent, employee, or deputy of the government of the United States, or otherwise acted under the color of federal law within the borders of Kansas after the effective date of the law, who enforced, attempted to enforce, or who gave material aid or support to the enforcement of an infringement as defined by the law would be subject to a civil penalty of $50,000 for each such employee.

CURRENT KANSAS LAW

Kansas was one of the first states to attempt to block the enforcement of federal gun control, but in hindsight, the measures were not well-composed.

The 2013 2nd Amendment Protection Act declared “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.”

But the bill only expressly banned state and local enforcement of “any act, law, treaty, order, rule or regulation of the government of the United States upon a firearm, a firearm accessory, or ammunition that is manufactured commercially or privately and owned in the state of Kansas and that remains within the borders of Kansas.” Violators could face felony charges. State prosecutors are empowered to serve federal agents violating the law with a complaint and summons.

That never happened.

In fact, the 2013 law was tailored to force a lawsuit more than to stop state and local enforcement of federal gun control. That lawsuit did come about, and it didn’t end well for the defendants. Federal Judge Thomas Marten sentenced Shane Cox for manufacturing and selling a silencer and other firearms without paying the federal license/tax and Jeremy Kettler for possessing and using that silencer.

The passage of HB2442 would take the long-awaited next step and end state and local enforcement of a wide range of federal gun control.

EFFECTIVE

The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts – including gun control. By simply withdrawing this necessary cooperation, states and localities can nullify many federal actions in effect. As noted by the National Governors’ Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”

Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” represents an extremely effective method to bring down federal gun control measures because most enforcement actions rely on help, support and leadership from state and local governments.

Fox News senior judicial analyst Judge Andrew Napolitano agreed. In a televised discussion on the issue, he noted that a single state taking this step would make federal gun laws “nearly impossible” to enforce.

“Partnerships don’t work too well when half the team quits,” said Michael Boldin of the Tenth Amendment Center. “By withdrawing all resources and participation in federal gun control, states and even local governments can help bring these unconstitutional acts to their much-needed end.”

LEGAL BASIS

The state of Kansas can legally bar state agents from enforcing federal gun control. Refusal to cooperate with federal enforcement rests on a well-established legal principle known as the anti-commandeering doctrine.

Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on five Supreme Court cases dating back to 1842. Printz v. U.S. serves as the cornerstone.

“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty”

However, it’s important to note that no determination of constitutionality is necessary to invoke the anti-commandeering doctrine. State and local governments can refuse to enforce federal laws or implement federal programs for any reason they choose.

WHAT’S NEXT

HB2442 was referred to the House Committee on Federal and State Affairs, where it will need to pass by a majority vote before moving forward in the legislative process.

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