Gun bill seen as states' rights issue

Posted: Tuesday, February 02, 2010

JUNEAU - Alaska lawmakers are fighting federal gun regulations with a proposed law of their own: the Alaska Firearms Freedom Act.

The bill is another attempt to assert state rights over federal regulations, this time regarding guns, accessories and ammunition made and distributed in-state. The rationale - which ignores federal court precedents - is that the federal government only has the constitutional power to regulate interstate commerce. The bill passed through the full House last year and was the subject of a hearing in the Senate Judiciary Committee on Monday.

The state is also battling the federal government over land access and Endangered Species Act protections.

The firearms legislation probably would have no practical effect, said Ken Feinman, a spokesman for the largest gun shop in Alaska, Wild West Guns in Anchorage. Alaska gun shops rely heavily on out-of-state components.

"We just don't have the manufacturing capacity here," he said.

Nevertheless, Feinman said he supports the bill for the same reason its primary sponsor does - it sends a message about 2nd Amendment rights and states' rights.

"It makes the statement, 'We're serious,"' Republican Rep. Mike Kelly of Fairbanks told the committee Monday.

That brand of populist libertarian rhetoric is common in Alaska, and driven home by Feinman.

"The federal government has got to cut back in legislating everything in our lives. It's not chest beating, it's, 'Hey, you guys got to step back,"' he said.

According to an analysis by Legislative Counsel Gerald Luckhaupt, U.S. Supreme Court precedents suggest the state has a weak case. In a 2009 memo to House members, he wrote that two Supreme Court cases found federal officials could regulate "intrastate activities" if Congress determined that those activities could effect interstate commerce.

"Similarly, the production of a firearm, even if performed wholly intrastate and with materials found only in that state, could seemingly affect interstate commerce in firearms generally," Luckhaupt wrote.

Luckhaupt also noted that in 2006, the Ninth Circuit Court of Appeals - which covers Alaska - reversed its own position in a case involving a man manufacturing homemade machine guns and machine gun kits wholly within California.

The appeals court also covers Montana, which passed the nation's first "Firearms Freedom Act." It took effect last year.

The Montana Shooting Sports Association and Second Amendment Foundation filed suit in attempt to validate the law. Federal officials have asked that the case be dismissed.

Similar acts have been introduced in Texas, South Carolina, Minnesota and Florida.

Several Alaska residents testified in the Senate Judiciary Committee hearing Monday to urge lawmakers to move forward, regardless of potential lawsuits.

The initial bill required the attorney general to defend a citizen prosecuted by the federal government in a relevant case. Changes in the House last year softened the language to "may defend."

Committee Chairman Sen. Hollis French, D-Anchorage, said the legal questions are "very, very interesting" and will be discussed in an upcoming committee meeting. He wouldn't offer any other indication of where the legislation is headed.

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