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Monday, April 22, 2013

Brownback's Intriguing (and Possibly Incoherent) Gun Rights Crusade

Last week our governor, Sam Brownback, signed into a law a bill titled "The Second Amendment Protection Act," which the bill's proponents trumpeted as "the strictest Second Amendment protection law in the nation." Others suggested that it was a pointless law, really just political chest-thumping and nothing more. You can read the whole thing here (it's not that long) and make up your own mind; for my part, I think it's kind of a fascinating document--and likely a deeply confused one as well. Let's run through the possibilities:

1) The law is designed to substantially expand the rights of gun owners in Kansas.

The problem here, though, is that the law never really talks about what any of those rights are. It does spend a great deal of time--all of sections 6, 7, and 8 of the law--claiming how, under this Kansas law, "any act, law, treaty, order, rule or regulation of the government of the United States regarding a firearm" will be "null, void and unenforceable in the state of Kansas," but all of that is simply a negative, stating that such and such people or agencies won't be allowed to enforce gun laws; it never actually explains what Kansas gun owners themselves actually have a legal right to do. The closest it comes to actually spelling out anything substantive is when it references the 2nd Amendment of the U.S. Constitution and section 4 of the Bill of Rights attached to the Kansas Constitution as guaranteeing "the right to keep and bear arms"--but as it does not assert anything beyond those statements (and indeed, it goes out of its way to emphasize a kind of simplistic literalism in reading those words, stating that this right to keep and bear arms exists "as it was understood at the time" in 1861 when Kansas officially became part of the United States), it doesn't provide any way for Kansas gun owners today, in 2013, to know what their legal rights (regarding gun licensing, or or gun usage, or anything else) positively are. They just know that--according to the state of Kansas, anyway--the federal government can't do anything to their guns, pursuant to the 2nd Amendment and the Kansas Bill of Rights. As one commentator put it, all you really get out of this law when it comes to substantive gun rights is that "federal measures that violate the Second Amendment will be ignored in Kansas." Or, in other words, that unconstitutional gun laws will be considered to be unconstitutional gun laws. Not a whole lot of new substantive defenses there.

2) The law aims to deny the authority of the national government when it comes to guns, and possibly much else.

Perhaps this law isn't really about the defending the rights of gun owners at all, but rather is all about attacking the legitimacy--or at least the reach--of the national government, and maybe the U.S. Constitution itself. The sounds extreme, but still, it's hard to come away from reading the lengthy section 2 of this law, with its rather ornate and very literal references to the 9th and 10th Amendments to the Constitution (both of which, according to the law, reserve rights and powers as "a matter of contract between the state and people of Kansas and the United States...as they were understood at the time that the compact with the United States was agreed upon") and not imagine that the authors perhaps wished we were still governed by the Articles of Confederation. Or, if not the Articles, then at least a reading of the Constitution--one that grants to the states the right to nullify and ignore national laws, given that they are only part of the American "compact" by choice--which has regularly been invoked but has never had much lasting political or legal acceptance in all our post-ratification history. (The one arguable exception to that judgment, of course, was the Civil War, when nullification led to its logical conclusion of secession, and that did enjoy a fair amount of support across the American south, until four years of war and over a half-million deaths led to the idea being basically buried for close to a century.) Personally, I'm rather dubious that Brownback himself actually wants the argument over gun rights to become another Nullification Crisis, or for this law to become another Virginia Resolution, or for him to go down in recent American history as a half-baked John Randolph of Roanoke. I would actually have greater respect for him if any of those possibilities were true, but the fact is his overall policy positions don't seem much at all like those which a supposedly committed states-rights localist or classical republican would hold to. There are, I'm sure, old-school conservatives around him who really are committed to challenging over two centuries of fairly consistent constitutional law (I hear you, Caleb!), but I doubt he's one of them.

3) The law is just trying to attract gun jobs to Kansas.

Some of the proponents of this law are convinced that manufacturers of guns and gun components will want to relocate from Colorado or Maryland or wherever else to operate in a "pro-Second Amendment state." The evidence in support of this assertion is weak at best, especially given the fact that this law itself requires some extensive (and possibly expensive) documentation and labeling of any guns or gun components manufactured in Kansas in order to satisfying the requirement that the items in question be "declared by the legislature...[to] have not traveled in interstate commerce." Whether such contortions could prevent the guns in question from being subject to any hypothetical laws justified under the national government's commerce power is unlikely and at this point impossible to know. More curiously though, it's worth noting that this aim conflicts with the previous one. After all, if you're really trying to draw gun jobs from across the national marketplace to your own state, then presumably you can't really at the same time believe in challenging (or even just getting around) the national government's authority, since it is that authority which makes possible a national marketplace in the first place. A country of state-by-state nullification is also a country which would likely have diverse, state-by-state banking and currency systems, taxation and investment regulations, and quite possibly even internal tariffs. (Many of which characterized life in American under the Articles of Confederation.) I suspect that there is an unreflected-upon intellectual tension here inside the Kansas Republican party. On the one hand, there are a handful of Tea Party quasi-populists who truly embrace the idea of "small government," understanding that to mean leaving government power in local and state hands so as to protect economic sovereignty from overarching national agendas; on the other hand, there are a handful of committed libertarians who also truly desire "small government," but in their case understand that to mean a low-tax, minimal-regulation national government that will enable the marketplace to flourish free from any obstacles...including the priorities of local developers and industries. You can't really satisfy both these groups at the same time, though it may be that some of the superficial thinkers behind The Second Amendment Protection Act somehow think they can.

4) The law simply signals an allegiance to conservative voters, rallying them to Brownback's cause.

So this brings us back to this rather cynical, but also likely, explanation for the law. Obviously, the politics of anything which allows a Republican legislator in Kansas to label themselves as more pro-gun than their hypothetical opponent is easy to understand. Probably Brownback & Co. don't actually have any new and brilliant legal arguments to expand the protections to individual gun owners already provided by the 2nd Amendment and by the Kansas Constitution; probably Governor Brownback (perhaps unlike some true believers around him) isn't really all that enamored of the idea of a radical, Constitution-challenging, states rights/nullification crusade; and probably it's a given that, realistically, gun manufacturers are going to make their decision on the basis of economic conditions and workforce availability, not on the basis of how much the state government claims to be able to legally defend their products. If so, that leaves us with the plain truth that uninformed defenders of gun rights--and reflexive Republican opponents of anything the President Obama has spoken in favor of (including a few fairly reasonable gun control measures)--will probably love this law, no matter how lacking in substance or motivationally incoherent it may be. This law essentially comes from the same place as those posters put up at gun shows and shooting ranges thanking Obama for the great work he's done as a gun salesman. Brownback and his allies may not have any real alternative in mind to our current constitutional order, and most of them almost surely don't want one anyway, but they surely politically benefit from making as though they believe (as some no doubt genuinely do) there is a constitutional crisis at hand regarding gun rights. What more explanation do you need for this strange document than that?

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