Two legal scholars say Pennsylvania Attorney General Kathleen Kane is within her rights not to represent the state government in a case involving a new gun law.
Kane said she is not defending legislation that allows outside groups such as the NRA to sue municipalities over their gun ordinances. Lawmakers from Philadelphia, Pittsburgh and other parts of the state have filed a challenge to the legislation.
Republicans contend that Kane is abdicating her responsibility to represent Pennsylvania government and defend the law. But Kermit Roosevelt, a law professor at the University of Pennsylvania, said Kane can decline to stand up for the rule if she thinks it is unconstitutional.
“Whenever anyone, state official or not, goes into court, they have an obligation to be honest with the judge [and] not to present arguments that they don’t believe in,” he said. “So if this is actually her belief, she thinks it’s unconstitutional, she’s certainly within her rights, and she might well be obligated to say so.”
Theodore Ruger, another Penn professor, agreed that Kane has the right to walk away from the case if she thinks the gun law is unconstitutional. But even if she’s refusing for policy reasons, Ruger said, her position is still defensible.
“State attorneys general are different than the federal attorney general. They are not appointed by the chief executive,” he said. “They are independently elected and there’s been numerous recent examples where [attorneys general] have made their own decision on whether or not to defend state laws.”
Those challenging the gun law say it violates a provision in the Pennsylvania Constitution that requires legislation to deal with only one topic. They say the gun rule was tacked onto a bill that raised the penalty for stealing metals such as copper wire.
Kane’s office declined to explain why she is not representing the state.
In May, that ban was struck down by a federal court judge who agreed with Kane that it violated the U.S. Constitution.