Friday, February 22, 2013

Gun bill sponsor rebuffs legal concerns

By SCOTT ROTHSCHILD, The Lawrence Journal-World

The chief sponsor of a bill that supporters say will protect Kansas gun owners from federal restrictions has accused the state attorney general’s office of trying to gut the legislation.

Earlier this week, Rep. John Rubin, R-Shawnee, took issue with written testimony from an assistant attorney general who highlighted issues with House Bill 2199, known as the Second Amendment Protection Act.

The bill states that any personal firearm, accessory or ammunition that is owned or manufactured in Kansas and that remains in the state is not subject to federal law. Under the bill, federal authorities trying to enforce any kind of rule on such a firearm would face possible prison time.

And the measure would prohibit doctors — but not psychiatrists — from inquiring whether a patient owns a gun.

In written testimony, Assistant Attorney General Charles Klebe, who is responsible for licensing concealed carry guns, said the office was neutral on the bill.

But he expressed legal concerns with the measure.

“To state the obvious, the Supremacy Clause of the United States Constitution cannot be waived by state law, and any conflict between a valid federal law and a state law will be resolved by the courts in favor of the federal enactment,” Klebe said.

Klebe said if Kansas officers tried to prevent federal authorities from enforcing federal gun laws, the Kansas officers could face charges of obstruction of justice.

And prohibiting doctors from asking questions about a patient’s firearms ownership raised issues about limiting a physician’s First Amendment right to free speech, he said.

A fiscal note attached to the bill states that the attorney general’s office believes the bill would probably result in multiple lawsuits and could cost the state $825,000 during the next three years.

“The cases would probably have to be outsourced and if the state lost the litigation, it would be ordered to pay the attorneys’ fees of the prevailing party,” the fiscal note said.

Rubin, who also is an attorney, said Klebe was “frankly, dead wrong.”

“The Supremacy Clause does not apply to federal laws, regulations or orders that are unconstitutional,” Rubin said.

Klebe’s suggestions, Rubin said, would make the remaining bill meaningless. The measure has 50 legislative sponsors, and Kansas Secretary of State Kris Kobach helped write it.

Jerry Slaughter, executive director of the Kansas Medical Society, testified against the provision that would prevent physicians from asking patients about weapons.

Slaughter said sometimes physicians seek information about guns at home just as a safety precaution when treating patients who may be depressed or taking medications.

Rubin said he could live with dropping that part of the bill, but several members of the House Federal and State Affairs Committee said they wanted to retain it.

Rep. Ken Corbet, R-Topeka, said if he visits a doctor for a sore throat, why would the doctor ask about a firearm? “Why would that even have to come up?” he asked.

Slaughter said it didn’t. He also tried to assure committee members that under the federal Affordable Care Act there was no requirement that a physician ask about guns or that a patient be required to answer.

But several committee members and Rubin said they were suspicious that President Barack Obama would issue an executive order that would require physicians to request that information.

He said the legislation would prevent any gun owned or built in Kansas and remaining in the state from being controlled by “any past, present or future federal law, rule or regulation of any kind.”