Half of the State House has signed on as cosponsors to Rep. Mike Chenault’s “Exempt Firearms from Federal Regulation” bill. House Bill 69 is a measure that’s supposed to protect Alaskans’ Second Amendment rights by nullifying any new gun laws passed by Congress in response to last year’s mass shootings in Colorado and Connecticut. However, if HB 69 passes, it will likely be declared unconstitutional. And judging from the U.S. Supreme Court record, Congress may well have the constitutional authority to strengthen gun registration laws and pass a new statute banning the commercial sale of assault weapons.
Chenault’s bill isn’t really breaking new ground. It’s only an amendment to a state law passed in 2009 that exclusively addressed firearms and ammunition manufactured in Alaska.
As former state Rep. Mike Kelly explained in his sponsor statement for that bill, it was a means to circumvent restrictive federal gun laws put in place by Congress under the authority of the Interstate Commerce Clause.
Now I’m not a lawyer or constitutional scholar, and neither is our esteemed Speaker of the House. However, it doesn’t take a legal expert to know there’s no major industry manufacturing anything here. So in reality the 2009 statute was of little consequence. Chenault, however, has taken the existing law and inserted “possessed in this state” in the four places that refer to firearms, accessories and ammunition being manufactured in Alaska. It’s truly a direct challenge to the U.S. Constitution supremacy clause because it’s going to affect a far greater number of weapons by including those purchased outside and transported into the state.
The U.S. Supreme Court has consistently struck down such attempts by the states to nullify federal laws. But the Court has not been so decisive on the matter of individual rights related to the Second Amendment. It was only in 2008, in District of Columbia v. Heller where they overturned a Washington, D.C .handgun law, that the Court declared it “protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”
The militia, of course, is an archaic idea. Aside from the Second Amendment debate, it disappeared from the American conscience almost two centuries ago.
Back at the time our Constitution was drafted though they were means of America’s national defense. In fact, in the Articles of Confederation, which were the original laws of our new nation, the states were required to “always keep up a well-regulated and disciplined militia” that was “sufficiently armed and accoutered.” That’s because Congress was given no power to levy taxes or appropriate funds for defense.
While the Constitution changed that, it still left the authority for training the militias to the states. So it seems reasonable to infer that the Second Amendment was only intended to apply to firearm ownership in relation to service in a state militia. That’s consistent with Justice John Paul Stevens’ dissenting opinion in the D.C. v. Heller case, in which he also argued “there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.” In other words, just as the right to own a horse wasn’t enumerated in the Bill of Rights, owning guns for self defense and hunting needed no constitutional protection.
However, it’s the majority opinion from the same case that implies Congress can regulate the type of guns people can own.
Despite the fact that the 5-4 decision upended 220 years of history, conservative justice Antonin Scalia wrote the rights of individual firearm ownership “secured by the Second Amendment is not unlimited” and “nothing in our opinion should be taken to cast doubt on … laws imposing conditions and qualifications on the commercial sale of arms.” Further, he stated, it’s limited to common firearms and excludes “dangerous and unusual weapons” that have been historically prohibited.
Which category do military style assault guns fall into? They’re not hunting weapons. And the vast majority of Americans don’t think they’re needed for self defense. So if the U.S. Congress bans them, as they should, then it’s highly unlikely Alaska’s lawmakers can do anything about it.
• Moniak is a Juneau resident.
Comments (55)
Add commentLet Chenault and his ilk spin
Let Chenault and his ilk spin their wheels and go for that NRA 'A' rating. Real change is coming with regards to firearms purchase and registration. And the shame that comes from waiting until we have a school full of dead children to make it happen is only matched by the shame that it didn't happen after Aurora, CO or Virginia Tech or Tucson, AZ or (insert tragic incident here).
Oh the blame game...
Yes, the gun went off automatically. This evil, possesed machine. Never mind the fact that the shooter was mentally ill and stole the weapons from his mother, who irresponsibly left them unsecured in her home (with ammo). Other parts of the world where firearms are not readily available they use IEDs, poison gas, machetes, name it. Funny, the most heavily regulated cities such as Chicago (Obamaville) and New York (anti-big gulp Bloomberg) have the highest violent crime rates in the nation. Emotion + knee jerk reaction does not make good policy.
Wrong
The 2nd Amendment is definatly been lawyerized very badly,it is common sence to read the words veewy slowly to understand what it means.
There are a number of facts that are in the constitution that can never be removed,no matter how hard the lefties try.
There always has been and there always will be a militia!!
There is the regulated and state organized militia(National Guard). Then there is the unorganised militia and that is every swinging individual that can carry weapon and pack to come to the aid of a state or nation from an invasion or inserection foreign or domestic.
It would be advisable for the anti constitutionalist to pay attention and stop listening to the carpetbaggers and read the constitution for what it is ,not what other dingle berries tell you.
Clearly unconstitutional
Why is our House Speaker promoting a bill which very obviously is unconstitutional? If another legislator drafted a bill which proposed to seize every Alaskan's guns, the howling from the 2nd amendment crowd would be deafening.
They would pontificate for days about the unerring holiness of our Constitution and the Founding Fathers. They would make highly disparaging remarks about the drafter of the bill and the symbolically scatological things the bill was doing with our Constitution.
And yet when the same level of disrespect is being shown to our Constitution by half of our State House, nary a peep is heard from those courageous defenders of the Constitution. Most curious, eh?
Notwithstanding the fact that our elected representatives are being (well) paid to be here in Juneau doing the people's business, not engaging in pointless political grandstanding which wastes the legislature's time as well as the court's time.
@Banditrider
Chicago and New York historically had high crime rates...add to that funding cuts that gut the police and there you go....
But then YOU like to blame someone instead of the actual problem.
Less guns=Less violence
Register them and transfer titles...track those suckers from manufacture to destruction.
No assault rifles...those are weapons of was and have no place in our homes.
@Banditrider
Chicago and New York historically had high crime rates...add to that funding cuts that gut the police and there you go....
But then YOU like to blame someone instead of the actual problem.
Less guns=Less violence
Register them and transfer titles...track those suckers from manufacture to destruction.
No assault rifles...those are weapons of was and have no place in our homes.
1902 Dick Act
Were you aware of this law?
DICK ACT of 1902 - CAN'T BE REPEALED (GUN CONTROL FORBIDDEN) - Protection Against Tyrannical Government
It would appear that the administration is counting on the fact that the American Citizens don't know this, their rights and the constitution. Don't prove them right.
The Dick Act of 1902 also known as the Efficiency of Militia Bill H.R. 11654, of June 28, 1902 invalidates all so-called gun-control laws.
It also divides the militia into three distinct and separate entities. ** SPREAD THIS TO EVERYONE ** The three classes H.R. 11654 provides for are the organized militia, henceforth known as the National Guard of the State, Territory and District of Columbia, the unorganized militia and the regular army.
The militia encompasses every able-bodied male between the ages of 18 and 45. All members of the unorganized militia have the absolute personal right and 2nd Amendment right to keep and bear arms of any type, and as many as they can afford to buy.
The Dick Act of 1902 cannot be repealed; to do so would violate bills of attainder and ex post facto laws which would be yet another gross violation of the U.S. Constitution and the Bill of Rights.
The President of the United States has zero authority without violating the Constitution to call the National Guard to serve outside of their State borders.
The National Guard Militia can only be required by the National Government for limited purposes specified in the Constitution (to uphold the laws of the Union; to suppress insurrection and repel invasion). These are the only purposes for which the General Government can call upon the National Guard.
Law
I dont need no stinkin law!!
Unconstitutional is what it is!!!
Hey maybe moma t could go to Syria,or any other part of the world and bark that nonsense to them,see what that does for ya.
But as an American that is willing to ride on the blood of Patriots to relay this garbage(about what weapons Ameicans can own) I would say for sure you have no idea of the hornets nest you types have unleashed.
OH YEA
Have a nice Day.:-)
Lawrence love
"The President of the United States has zero authority without violating the Constitution to call the National Guard to serve outside of their State borders."
Right. Tell that to the roughly 28 percent of the combat force that served in Iraq and Afganistan that was comprised on Na'l Guard and Reserve forces.
You are clueless.
Mistaken commentary
Moniak has filled this rant with factual mistakes and misleading conclusions. I don't know whether it will be the gun issue that finally reins in Obama but I do know that the currently serving police officers and US military personnel I have spoken with about the 2nd Amendment will be on our side of the berm shooting out rather than trying to take our guns. Possibly we will learn how what is Constitutional will be decided.
HB69 will be enacted by the 28th Alaska Legislature. Since 59 of the 60 seats were decided only last November it's safe to assume that this legislature reflects the will of Alaskans very well. Every Alaskan should send a note to Speaker Chenault thanking him for HB69.
Mama T...
Chicago and NYC have the most strict gun laws in the nation. Add to this the untold millions of dollars spent on public housing and other programs to try and curtail the atrocious violence. It has all failed. Crooks don't play by the rules, if they want a gun they will get one. Their jobs become much easier when the law abiding citizen has no way to defend themselves.
Oh my!
That's some tough talk there, glacierdogs. Maybe you and your pals can hole up in the Fosbee and hold off the ATF agents.
So when this bill, assuming it's ever signed into law, is found unconstitutional in a federal court, you're proposing to used armed force to defy the court?
In other words, you only support the United States Constitution when you personally agree with it. Understood.
send9line
got plenty of clue,
fact is the constituional law was broken by corrupt officials.
And all the other corrupt officials fell for it!!
And believe you me i am well aware of all our militaries involvement,and i do not buy into the tin foil either.
glacierdogs
"Every Alaskan should send a note to Speaker Chenault thanking him for HB69."
Why?
HB69 has absloutley no chance of ever being applied even if it passes in AK.
If the Speaker does not understand this he is woefully ignorant.
If he does understand it he is disingenuous and pandering to the likes of you.
Either way he is wasting state money, resources, and time and is unfit for public office.
amendments come and amendments get repealed:
that is a fact. The 2nd amendment was added to the Constitution. Too many fail to understand the history regarding the ratification of the Constitution. The Bill of right were added after there was a hesitation by some states to ratify the Constitution as presented.
For the Alaskan legislature to take a position proclaiming they will selectively pick and chose what is or is not enforceable by the federal government regarding the 2nd amendment is absurd. They might as well try to selectively decide who get to be counted for the census.
lawrence love
why persit with an argument that has no intellectual merit or basis in fact or law?
do really believe that every Nat'l Guard member who ever served overseas did so unconstitutionaly?
such graditude.
They did their duty
that is a fact the politicians were and are the corrupt indivduals and quit being so a$$$enind about the subject or even how i feel about the gvmnt.I served my blood and time so pi$$ off!!
lawrence love
if you say you "served my blood an time" i have no reason to doubt it.
if you say politicians are "corrupt" i say yes, some. For example the subject of this editorial. But they are voted into office not appointed.
but when you say it is unconstitutional for the POTUS to federalize the Nat'l Guard for service domestic or abroad you are "clueless" and apparently hopless.
happliy [filtered word]ing off
funny
its better to be pi**ed off than pi**ed on;your welcome.
All the idiots who allowed the Federalizing of the Guard started the same way they are trying to take away the 2nd rights.
A little here and a little there,the fudds dont mine the will never take my 30-06 w a scope on it.
That is just a matter of declaring the weapon a Sniper rifle and not a necessary firearm. Confiscate...
A very slippery slope and the elites have no concern for the rights in our Constitution.
Its for the Children
Not cuttin it.
:-) :-)
Sometimes it's as if some of you believe,
that whenever our president speaks, the thunder rolls down from the heavens, and his will is the law of the land. I find it a little ironic when people post things like "In other words, you only support the United States Constitution when you personally agree with it." You do understand that that pesky amendment with "shall not be infringed", actually is in the Constitution, right? Despite Mr. Moniak's attempts at misdirection regarding militias, SCOTUS did rule in DC v Heller, that the right to keep and bear arms is a personal, not a state right. They further ruled that this right covers arms "in common use at the time" (pp54-56). So my question is, how many legal AR15 type rifles/carbines are in private ownership? Enough that they are "in common use"? If so, then the proposed Federal legislation would be whats in violation of the Constitution.
Has any legislation been
Has any legislation been enacted to take your guns away? Other then debating an issue over half of Americans are currently in favor of, has anyone tried to do anything? Talk about knee jerk reactions.
We do have a problem when school shootings are happening. The gun advocates have done nothing to bring anything to address the issue except saying 'don't touch my guns'. Maybe when you lose your child in such a way you'll be able to understand why so many people want a change. Taking away guns? Not going to happen and I don't think it should. We don't allow someone that committed a felony to have guns because we deem they make desicions that infringe on other people's safety. From that its not a large jump to continue that debate and regulate who is capable of having guns. Mentally unstable people and such. Because of the amount of deadly force that is readily accessible there is a growing population that feel we need to regulate and reduce that. Which I am in favor of. A common idea I read and hear is limiting magazine capacity. If they did that how would that change what you do with your guns? Means you'll have to reload at the gunrange more? Cry a bigger river. There are to many senseless deaths and we should address it. Be apart of the discussion and try and form a compromise that helps reduce these deaths and you still have your guns. There are solutions in the middle. But taking a stand and refusing to allow any debate does only one thing, it allows these murders to continue. Your right to have any gun does not trump my right to not worry that someone will use those guns on my family. How about manditory trigger locks? If that woman had trigger locks and her child didn't have access tithe keys there would be about 30 people alive today.
unacceptable
Any limits on any type of firearm.
I suggest you read the part of the 2nd veewwy slowly
Shal Not be Infringed.
There are a number of items that can be discussed,like enforcing the gun laws on the books.
Not attempting to make more rediculous none funtioning laws.
And there are so many things that are not up for any type of Compromise and that would be anything to do with my Constitutional Rights.
Each and every one of them!!
Not to concerned with the other issues that there is a man made Gun Free Zone and the crazies will always hit a soft target.
:-) :-)
Address This
Ladder death
Automobile Death
Drug Death
Alcohol Death
Drunk Driving Death
Oh i could flat out go on,all these surpass any firearms Deaths in America and all you do is jump on the anti firearms band wagon and attempt to interfere with the American Constitution.
lawrence
What is your suggestion for curbing gun violence in America?
Also
None of those things you listed has a history of mass murder with them? Unless of course, you're referring to the high school ladder massacre, where one student brought in a ladder and killed 30, including some school staff.
thats not funny
what part of enforce the gun laws on the books dont you get!!
As to curbing gun violence in America,
Enforce the gun laws on the books.
Even though a number of them are unconstitutional........
A little bit here A little bit there....
:-) :-)
mass murder
not relavent; ding! ding! mental case can use any tool to commit mass murder
The standard mo is all major cases were seriously mental and no one but no one paid attention to any of the obvious signs!!!
All liberals should
All liberals should immediately surrender their guns……
A good example of a knee jerk reaction, Alaskastu,
would be passing a law restricting weapons that are used in less than 1% of homocides in America. The biggest problem with these guns, is that they have been cosmetically made to look like military firearms. Can you name one person that has been killed with a pistol grip, bayonet lug, heat shield, or for that matter a 30 round magazine? Good luck. The same Senator (Feinstein) that introduced the 1994 Assualt Weapons ban, jumped on the Sandy Hook tragedy to renew and strengthen that failed legislation. She submitted the new version on Jan. 24th.