134 – Kansas Bill to Nullify Red Flag Laws

You’ve probably heard about the Second Amendment Sanctuary movement in Virginia. While it’s the counties that are standing up for your right in that state, the Kansas legislature has proposed a bill that would protect the rights of all the citizens in their state.

If you went to public school in this country, you should have learned about the checks and balances between the branches of the federal government. Rarely taught is the checks and balances that exist between the federal government and its creators, the states. A bill has been filed in both the state House and Senate in Kansas that would be just such a check, not only on the federal government, but on parts of the state government as well. If enacted into law, this legislation would be called the Kansas anti-red flag act.

I haven’t compared HB2425 and SB245 word for word, but I believe they are very similar. So let’s go over HB2425 and see what it says.

The legislature hereby preempts the entire field of legislation in this state concerning in any way federal or state extreme risk protection orders that have been issued against a citizen of Kansas. No city, county or other political subdivision of this state shall enact any ordinance, resolution or regulation providing for extreme risk protection orders nor enforce or aid in the enforcement of any extreme risk protection order issued pursuant to federal law or the laws of another jurisdiction.

KS HB2425 Section 1(b)

I’m sure someone out there will cry foul, since federal law supersedes state law. If they do, I’d guess they haven’t read Article VI of the U.S. Constitution.

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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

U.S. Constitution, Article VI, Clause 2

Only federal laws made in pursuance of the Constitution are the supreme law of the land, but pursuance doesn’t just mean following the process for passing legislation. As Alexander Hamilton said:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

Alexander Hamilton – Federalist #78

So yes, since Red Flag laws violate all sorts of constitutionally protected rights, they cannot be valid. (I have written several articles and recorded several videos on the constitutional violations of Red Flag laws.) Since both state and federal judges are only bound to federal laws made pursuant to the Constitution, the opposite is also true: Judges are not bound to federal laws not made in line with the Constitution. In fact, their oath or affirmation to support the Constitution means they have a duty to reject any law that was not made in pursuance to the U.S. Constitution. This means that Kansas is not only within their rights to not allow illegal laws to be enforced within their jurisdiction, it is their responsibility to protect their citizens from such laws.

Any federal statute, rule or executive order, federal or state judicial order or other judicial action that would have the effect of enforcing an extreme risk protection order against a resident of Kansas shall be null, void, unenforceable and of no effect in the state of Kansas. Such orders shall be deemed to infringe upon the constitutional rights of such resident including, but not limited to, the right to due process, the right to keep and bear arms and the right to free speech.

KS HB2425 Section 1(c)

It may be petty, but I do have an issue with this clause. Our due process, free speech, and arms rights do not come from the Constitution, so they are not constitutional rights. These are natural, unalienable rights protected by the Constitution. It is the fact that these rights come from our creator and not from government that gives Kansas’ protection of those rights legitimacy, but, hey, no one can be perfect.

No state agency or any city, county or other political subdivision in the state shall accept any moneys to implement any federal statute, rule or executive order, federal or state judicial order or other judicial action that would have the effect of enforcing an extreme risk protection order against or upon a resident of Kansas.

KS HB2425 Section 1(d)

I wrote an article Another Federal Attempt to Bribe States to Enact Red Flag Laws that describes just how the federal government uses our tax money to coerce states to toe the line. I’m glad to see Kansas recognizing this threat to their sovereignty and including protections in this legislation.

For purposes of this act, “extreme risk protection order” means an order or warrant issued by a federal court or a state court or signed by a magistrate or comparable officer of the court, including ex parte orders, for which the primary purpose is to reduce the risk of firearm-related death or injury by doing one or more of the following:

(1) Prohibiting a named individual from owning, possessing, receiving or otherwise having custody or control of a firearm; or

(2) having a firearm removed or requiring the surrender of firearms from a named individual.

KS HB2425 Section 1(e)

If someone has been duly found in a court of law, following the rules of due process, to be a danger to himself or others, HB2425 would prohibit the issuing of a warrant to confiscate the firearms. This may concern you, but realize that if this becomes law, the only way to handle someone who is a demonstrable threat to others would be to incarcerate them. Let’s face it, if someone is a threat with a firearm, they are also a threat with a knife, a car, or just their bare fists. Protecting someone from firearm-related death or injury while leaving them vulnerable to other forms of violence is at best a red herring and at worst a dereliction of duty.

It shall be unlawful for any person, including a law enforcement

officer, to enforce or attempt to enforce an extreme risk protection order

upon a resident of Kansas. Any person violating this act shall be guilty of a

severity level 9, person felony.

KS HB2425 Section 1(f)

Now Kansas wants to put some teeth into this law. If I understand the Kansas sentencing guidelines correctly, depending on the accused’s previous criminal history, a level 9 felony comes with at least a 5-7 year sentence.

Conclusion

Before you get all excited about this legislation, remember Kansas has gone down this road before. In 2013 the Kansas legislature passed, and then Governor Sam Brownback signed, the Second Amendment Protection Act. This law stated:

A personal firearm, a firearm accessory or ammunition that is owned or manufactured commercially or privately in Kansas and that remains within the borders of Kansas is not subject to any federal law, treaty, federal regulation, or federal executive action, including any federal firearm or ammunition registration program, under the authority of congress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce. This section applies to a firearm, a firearm accessory or ammunition that is owned or manufactured in the state of Kansas.

Kansas Second Amendment Protection Act, Section 4(a)

This act went on to say:

It is unlawful for any official, agent or employee of the  government of the United States, or employee of a corporation providing  services to the government of the United States to enforce or attempt to  enforce 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 owned or manufactured commercially or privately in the state of Kansas  and that remains within the borders of Kansas. Violation of this section is a  severity level 10 nonperson felony.

Kansas Second Amendment Protection Act, Section 7

Sound familiar? Back in 2013 Kansas seemed ready to stand up to the federal government for the rights of their citizens. That was until they actually had to do more than just put words on paper. In 2016 the federal government arrested, tried, and convicted two men for possession of a firearm suppressor, one of whom was also convicted of the manufacture and sale of said item. And what did the duly elected representatives of the people of Kansas do? Did they defend their citizens? Did they enforce their shiny new Second Amendment Protection Act? No. Then Governor Sam Brownback and Attorney General Dereck Schmidt did absolutely nothing to enforce the law they had touted. The only thing these men did was hang out to dry two of the citizens they had sworn to represent.

So, to the Legislature and Governor of Kansas I say, this is a good start. But until you show you are willing to stand up for the rights of your citizens, to do more than just put words on paper, you have not earned my trust, nor should you have the trust of the people of Kansas. If, however, you enact this law and protect your citizens when they abide by it, I will stand with you and shout your praises from the virtual rooftop of the Internet.