HB69, introduced into the Alaska House on January 16, 2013, passed out of the House Judiciary Committee Monday, Feb. 18, 2013. The bill is now before the House Finance Committee and is expected to pass. HB69 amends Alaska Statute 44.99.500.
According to the sponsor’s statement, HB69 is “An Act exempting certain firearms and firearm accessories in this state from federal regulation; providing criminal penalties for federal officials who enforce or attempt to enforce a federal law, regulation, rule, or order regulating certain firearms and firearm accessories in this state; and providing for an effective date.”
The sponsor’s statement goes on to state:
“The legislation was drafted in anticipation of President Obama's executive orders based on recommendations of a work group led by Vice President Biden. This group was charged with developing a set of concrete policy proposals for reducing gun violence. These proposals were the basis for the Presidential Executive Orders that were announced on January 16, 2013. The plan combines executive actions and calls for legislative action that "would help keep guns out of the wrong hands, ban assault and high-capacity magazines, make our schools safer, and increase access to mental health services." Although the executive orders did not carry the force of law, the recommendations calling for Congressional action could affect Second Amendment rights and the rights of states as well.”
The major amendment to AS 44.99.500 is the provision for the charging of a federal agent who acts to enforce the federal law with a Class C felony. The original bill called for a Class C misdemeanor–a relatively minor charge, but, one which might result in the arrest of the federal officer. The House Judiciary Committee increased the challenge to the federal overreaching represented by the various national gun control proposals made by President Obama, VP Biden, and Senator Diane Feinstein.
Given Alaska’s citizen arrest law under AS 12.25.030, HB69 could prove interesting in its application, were a federal agent to attempt to enforce a violation of federal law and then be charged by the Alaskan who is the subject with a Class C felony under Alaska law.
The lone opposition on the committee was made by Democrat Max Gruenberg who opined that we all have to live under federal rules, as Alaska is part of the United States. Gruenberg also opined that the bill might result in a litigation burden upon the State, because of the changes to AS 44.99.500(d). This section allows the attorney general to defend a citizen of the State prosecuted by the federal government using the interstate commerce clause for violation of federal law concerning the manufacture, sale, transfer, or possession of a firearm, a firearm accessory, or ammunition possessed in this state or manufactured and retained within this State.
Kathleen Strasbaugh, a Legislative attorney, had opined to the committee that in her considered opinion the bill was unconstitutional. Her basis rested on the idea that nullification of a federal law by a State was unconstitutional.
Rep. Max Gruenberg, the dissenting voice on the House Judiciary Committee, agreed with Strasbaugh. Gruenberg also stated that the “feds don’t blink at this, they will enforce federal law. And, if people attempt to rely on this, they may find themselves facing a federal jury.”
Gruenberg’s and Strasbaugh’s position is common among Democrats who hold the States as subordinate in standing to federal power after the Civil War.
Yet, there is nothing in the Constitution that prohibits nullification under the 10th Amendment by a State or States of a federal law that is held by those States as unconstitutional and as overreaching by the federal government. The courts have upheld nullification, if the federal law is found to be unconstitutional. In that case, such overreaching would act to nullify the Supremacy Clause in Article VI §2 of the Constitution.
The counter to both Strasbaugh’s and Rep. Max Gruenberg’s argument regarding their opposition to HB69 was that prior to the Civil War, the northern states effectively nullified federal slavery laws using the authority of the 10th Amendment.
Of course, the Democrats of the time were in opposition to ending slavery and in opposition to freed slaves practicing their Second Amendment rights post the Civil War. The first gun control laws were passed by Democrats in the State legislatures to prevent gun ownership by freed slaves, bringing about the 14th Amendment to the Constitution.
It is interesting that with respect challenging unconstitutional overreach by the federal government, the Democrats argue against the use of nullification under the 10th Amendment.
Has Nullification under the 10th Amendment been used to nullify the effects of federal overreach by the States in the 20th century?
Rep. Gruenberg and Ms. Strasbaugh seem to overlook the fact that the State of Montana effectively nullified the 55mph National Maximum Speed Limit by ignoring it. Many states enacted work arounds that assessed an energy wasting fine of $5-$15 if the individual was still within the pre-NMSL speed limit. The NMSL was enacted in 1974 and repealed in 1995. The federal government never failed to provide Montana and any other state enacting work arounds with their share of federal highway funds during the period the NMSL was in effect.
Would the federal government use force to uphold federal law?
Given Waco and Ruby Ridge, federal armed response is always possible.
However, usually the federal government responds with threats to end funding or to cause a federal agency to expend public money and time on bullying the State into compliance. The Obama Administration has threatened through the IRS to revoke the tax exempt status of churches should their clergy offer political opinion in alleged violation of the 1st Amendment. In each and every case, the IRS has backed down. Why? There is no such restriction.
The specter of the federal government bringing in the 4th ID and carpet bombing neighborhoods or villages by B52s and B1 Lancers to enforce a federal firearms law nullified under the 10th Amendment is highly unlikely. If our federal government were that insane, that event would certainly signal the start of the second Great American Revolution. Such questions of law and constitutionality should be left to the courts.
It is doubtful, that the federal government would be foolish enough to engage in an armed confrontation with State agencies over a questionable gun control law. Although, there are some compelling arguments to be made to the contrary regarding the confiscation of firearms by police and military personnel, given the experience with the post Katrina response.
During post Katrina response, away from the media cameras, there is video of Sheriff’s deputies shown with AR15s to their shoulders kicking down residential doors without warning or provocation and, while pointing the weapon at the occupants, screaming for them to produce their firearms, or face arrest. Interviews with an Oklahoma National Guardsman out on patrol supporting such activity and the comments by a USMC PAO major, indicates that there are troops who will follow orders, no matter the issue of constitutionality or how those orders strike their conscience.
Would the courts reject a nullification law enacted by a State? Yes, if the federal law were found to be constitutional.
Alaska Statutes 35.05.500-505 directly challenge the federal government’s regulation and management of Alaska’s federal lands. Under Alaska’s Statehood Compact, the management of federal lands in Alaska was left to the State of Alaska. Under the Alaska National Interest Lands Conservation Act (ANILCA), that authority was illegally taken by the federal government with the Katie Johns decision by the 9th Circuit Court of Appeals decision. Then Governor Walter J. Hickel and the Legislature enacted AS 35.05.500-505 to counter the federal encroachment upon Alaska’s sovereignty.
Unfortunately, the lawsuit filed by Governor Hickel and the State of Alaska against the federal government in response to the Katie Johns decision and ANILCA was withdrawn with prejudice by then Governor Tony Knowles when he took office in 1994, thereby ending Alaska’s challenge to ANILCA and federal management of stateowned waters. No governor since has attempted to redress what Knowles did. The question being, can one governor bind another in perpetuity by such an act as dismissing a lawsuit having such gravity and import to the State?
The Supremacy Clause of the Constitution would be held to apply only if the federal law is constitutional. If, as many maintain, given the “common use” definition under Heller, that the gun and magazine bans are unconstitutional, nullification of the federal law under HB69 would be upheld. Again, this is an issue for the courts.
Article VI § 2: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.”
If indeed, the Supremacy Clause insures the national union, through the supremacy of the Constitution as the supreme law of the land, than why have the various states and the federal Congress failed to recognize the Second Amendment as decided under Heller and the recent 7th Circuit decision?
Why is the Second Amendment the only amendment ignored by the States, and the federal government, under the 14th: “. . . No state shall make any law which shall abridge the privileges or immunities of citizens of the United States . . . “
Yet, the Second Amendment clearly states, an admonition not characterized nor included in any other provision under the constitution:
“A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
If signed by Governor Sean Parnell, Alaska would join Montana, Wyoming, Utah, as upholding state sovereignty over federal overreaching.
For more information:
Constitution of the United States, Art. VI §2
Alaska House Bill 69, version passed out of Judiciary Committee:
HB69 sponsor’s statement:
Fairbanks Daily News Miner:
WND, States Pulling the rug from under Obama gun plans: