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The Second Amendment has limits

Posted: February 20, 2013 - 12:13am

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.

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