TOPEKA, Kan. – U.S. Attorney General Eric Holder has told Kansas Gov. Sam Brownback that a new state law attempting to block federal regulation of some guns is unconstitutional and that the federal government is willing to go to court over the issue.
But Brownback replied in a letter Thursday that Kansans hold dear their right to bear arms and are protecting the state's sovereignty. Secretary of State Kris Kobach, a former law professor who helped draft the law, accused the nation's top law enforcement official of "blustering" over the issue.
"The people of Kansas have clearly expressed their sovereign will," Brownback said at the conclusion of his letter. "It is my hope that upon further review, you will see their right to do so."
Kansas' law declares that the federal government has no authority to regulate guns, ammunition and accessories manufactured, sold and kept only in Kansas. The law also makes it a felony for a federal agent to enforce any law, regulation, order or treaty covering those items.
The new statute says that Kansas-only guns, ammunition and accessories aren't a part of interstate commerce, which the federal government regulates under the U.S. Constitution. But in a letter to Brownback, Holder said the Constitution prohibits states from pre-empting federal laws.
Holder sent his letter April 26, the day after the Kansas law took effect, and the U.S. attorney's office for Kansas released it Thursday.
"Kansas may not prevent federal employees and officials from carrying out their official responsibilities," Holder wrote in his letter. "And a state certainly may not criminalize the exercise of federal responsibilities."
Patricia Stoneking, president of the Kansas State Rifle Association, said gun rights supporters were prepared for such a response from President Barack Obama's administration. The president has sought new gun control measures since December's deadly mass elementary school shooting in Newtown, Conn.
The Republican governor is a gun rights supporter, and the measure passed the GOP-dominated Legislature by wide margins. Kobach also is a Republican.
"I think the people of Kansas are going to back this up," Stoneking said. "Probably thousands of grass-roots citizens are all in."
Brownback said in his letter to Holder: "The right to keep and bear arms is a right that Kansans hold dear."
The governor added, "The people of Kansas have repeatedly and overwhelmingly reaffirmed their commitment to protecting this fundamental right."
The Kansas law is modeled on a 2009 Montana law that is being reviewed by a federal appeals court, and Alaska lawmakers approved a similar measure last month. Alabama, Missouri and Oklahoma lawmakers are considering similar legislation.
Supporters of the Kansas law softened it — to say that federal agents wouldn't be arrested or detained while trials were pending — and insist that it will withstand court scrutiny. A federal agent convicted for the first time under the Kansas law could face six months in prison, though probation would be the presumed sentence.
"These hard-working federal employees cannot be forced to choose between the risk of a criminal prosecution and the continued performance of their federal duties," Barry Grissom, the U.S. attorney for Kansas, said in a statement Thursday.
But Kobach called Holder's analysis "simplistic and incorrect" and said the Kansas law is valid to protect the state's residents against unconstitutional measures enacted by Congress.
"We are very, very confident of our position," Kobach said in an interview. "The state of Kansas is not in any way afraid of a legal challenge."
The office of Kansas Attorney General Derek Schmidt has already anticipated a potential legal challenge from the federal government, and has asked legislators to increase its budget by $225,000 over the next two years to cover litigation costs.
Stoneking said a dispute could arise after a local gunsmith sells a firearm manufactured in Kansas to a state resident without complying with federal requirements for a background check on the buyer or registering the gun. Kobach agreed.
"Until that actually happens, there won't be any litigation," Stoneking said. "The federal government will have to have some way of finding out."
Supporters of the Kansas law have said they worry about attempts by the federal government to restrict or ban the sale of some weapons — or even confiscate them.
Holder said in his letter that federal law enforcement agencies will "continue to execute their duties to enforce all federal firearms laws and regulations.
"Moreover, the United States will take all appropriate action, including litigation if necessary, to prevent the State of Kansas from interfering with the activities of federal officials enforcing federal law," Holder wrote.
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