Home States Kansas Cherokee County, KS Panel adopts Second Amendment sanctuary plan

Cherokee County, KS Panel adopts Second Amendment sanctuary plan

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By Kimberly Barker – Joplin Globe
14 Feb 2020

COLUMBUS, Kan. — Cherokee County commissioners recently adopted a resolution declaring the county a Second Amendment sanctuary, but a Kansas law expert believes such an action is not legally binding and is symbolic in nature.

The Second Amendment Preservation Resolution was unanimously adopted by commissioners on Monday after they heard from residents for weeks. The resolution says county funds and resources may not be used to enforce any state or federal laws that infringe upon the right to keep and bear arms, such as universal background checks, red flag laws or a ban on assault rifles.

The term “Second Amendment sanctuary” is still relatively new and is based on the concept of certain jurisdictions that refuse to assist federal enforcement of immigration laws. Many governmental entities in states such as California, Colorado, New Mexico, Florida and Virginia have adopted what are termed Second Amendment protections under the rising movement.

Cherokee County’s resolution states that “local governments have the legal authority to refuse to cooperate with state and federal firearm laws that violate those rights and to proclaim a Second Amendment sanctuary for law-abiding citizens in their cities and counties.”

But how much authority do counties have when it comes to federal law? The U.S. Constitution already prevents states from nullifying federal laws.

“States generally do not have the ability to tell the federal government, ‘Get out of our state and stop enforcing your laws,’” Kansas Attorney General Derek Schmidt said in a statement. “But states do generally have the ability to tell the federal government, ‘You are not able to commandeer state resources and compel us to enforce your laws.’”

Second Amendment Protection Act

Kansas is one of the few states that has statewide protections for the Second Amendment; its version was signed into law by former Republican Gov. Sam Brownback in 2013. The Second Amendment Protection Act in Kansas prevents any government interference with the right of individual Kansas residents to keep and bear arms.

Current Gov. Laura Kelly, a Democrat and self-described Second Amendment supporter, said last year she would like to work with Republicans on solutions to end gun violence and address it as a public health crisis. In the past, she has expressed support for what she sees as commonsense gun legislation such as universal background checks for gun purchases, and she voted for a bill that makes it illegal for anyone convicted of domestic violence to possess a gun.

But Cory Moates, a Cherokee County commissioner, said the commission believed a local resolution was necessary to protect residents’ Second Amendment rights. He cited examples from Virginia, where Democratic leaders have been calling for gun-control measures since taking control of both legislative chambers this past November.

“A Second Amendment sanctuary declares your sovereignty from the state, so if the state does something against the Second Amendment right, then it means that the government can’t issue a law or an order in that county boundary,” Moates previously told the Globe. “The problem is that the state government can change their statute with a vote, and this protects us at the local level.”

Myra Frazier, another commissioner, said she believes the Second Amendment resolution is legally binding.

“A resolution is a binding action,” she said. “It’s policy. The meat of the preservation resolution that we just passed specifically talks about how no county funds will be used, which is a binding action.”

On Monday, she had told those gathered at the meeting that she knew “to not vote for it (the resolution) would be seen as opposing the Second Amendment, which could not be further from the truth.”

“I’m going to vote in favor of this, but reluctantly, because I think we were rushed into something that we knew we were going to get there, just wanted a little bit more information,” Frazier said Monday.

She said the panel had been waiting to receive a written opinion from Schmidt on the resolution’s language and whether it was even needed.

In an interview with the Globe on Wednesday, Frazier said she didn’t object to the resolution but just wanted to make sure it was executed properly.

Overreach?

But adopting a county law that somewhat mirrors state law seems like an overreach to others. Kansas Press Association attorney Max Kautsch, who’s been practicing law for nearly 17 years, said there’s no legal basis for Second Amendment sanctuary resolutions, which he said only work if local prosecutors and law enforcement form a consensus to refuse to enforce state laws. Cherokee County Sheriff David Groves could not be reached for comment for this story.

“That seems to be a recipe for chaos that is simply unnecessary and dangerous in a rule-of-law society,” Kautsch said. “What’s the point of federal law if a local government can simply decide not to follow those laws?”

Kautsch said fears of a change to or repeal of the Second Amendment Protection Act in Kansas are likely unfounded, as such a motion would be difficult, if not impossible, in such a politically conservative state.

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