04/11/2009 09:00 AM House FINANCE

HOUSE BILL NO. 186                                                                                                            
                                                                                                                                
     "An Act declaring that certain  firearms and accessories                                                                   
     are exempt from federal regulation."                                                                                       
                                                                                                                                
9:37:17 AM                                                                                                                    
                                                                                                                                
Representative  Mike Kelly,  Sponsor,  described support  for                                                                   
the  legislation   in  Alaska   because  of  concerns   about                                                                   
increased federal  regulation of firearms. He  explained that                                                                   
the bill would separate firearms  manufactured in Alaska from                                                                   
federal regulation.                                                                                                             
                                                                                                                                
DEREK  MILLER,  STAFF, REPRESENTATIVE  MIKE  KELLY,  SPONSOR,                                                                   
provided an overview of the legislation:                                                                                        
                                                                                                                                
   · Section 1: Finds the authority of the bill in the                                                                          
     Second  Amendment, the  right  to bear  arms; the  Ninth                                                                   
     Amendment, guaranteeing  rights to people  not listed in                                                                   
     the Constitution;  and the  Tenth Amendment,  protecting                                                                   
     states'  rights. The  section also  finds that  Congress                                                                   
     has  not   expressly  pre-empted  state   regulation  of                                                                   
     interstate commerce pertaining  to the manufacture on an                                                                   
     interstate basis of firearms and accessories.                                                                              
                                                                                                                                
   · Section 2: States that a personal firearm or accessory                                                                     
     manufactured  in  the  state and  remaining  within  the                                                                   
     borders of  the state is  not subject to federal  law or                                                                   
     regulation.  The  firearm  must have  "Made  in  Alaska"                                                                   
     clearly stamped on a central metallic part. The section                                                                    
     also includes definitions of all parts of firearms and                                                                     
     accessories.                                                                                                               
                                                                                                                                
   · Section 3: Applies the legislation to firearms built                                                                       
     and retained in Alaska after October 1, 2009.                                                                              
                                                                                                                                
9:41:05 AM                                                                                                                    
                                                                                                                                
Representative Gara  pointed to page 2, line  23, saying that                                                                   
a  firearm  manufactured  in  the state  is  not  subject  to                                                                   
federal  regulation.  He  did   not  think  the  state  could                                                                   
determine the  reach of federal  legislation. He  queried the                                                                   
point  of the  provision. Representative  Kelly replied  that                                                                   
the federal  government increasingly  impinges on  the rights                                                                   
of  individual states.  He  thought Alaska  was  particularly                                                                   
targeted and listed examples.                                                                                                   
                                                                                                                                
Representative  Kelly  understood   that  the  measure  would                                                                   
challenge  the federal  government. He  gave some history  of                                                                   
the evolution  of the legislation.  He acknowledged  that the                                                                   
citizen  manufacturing  firearms  may be  challenged  in  the                                                                   
future by the  federal government and would  not be protected                                                                   
by the  state's attorney general.  He did not think  the risk                                                                   
could be avoided.                                                                                                               
                                                                                                                                
9:44:13 AM                                                                                                                    
                                                                                                                                
Representative Gara  did not think a state  statute could say                                                                   
federal rules do  not apply. The federal rules  apply or they                                                                   
do not in Alaska  regardless of what the state  may argue. He                                                                   
questioned the point of the legislation.                                                                                        
                                                                                                                                
Representative  Kelly emphasized  that the legislation  could                                                                   
send a message  that the federal government  is overreaching.                                                                   
He stressed the need to make a strong statement.                                                                                
                                                                                                                                
Representative  Gara   understood  the  argument.   The  U.S.                                                                   
Supreme  Court  says the  federal  government  has a  certain                                                                   
amount  of  authority  to regulate  firearms  in  states;  he                                                                   
thought  the issue  should be  argued  in court  and not  the                                                                   
legislature. Representative Kelly  thought the issue could be                                                                   
argued in court.  He pointed out other areas  where Alaska is                                                                   
"talking back" to the federal government.                                                                                       
                                                                                                                                
Co-Chair Hawker  stated his support  for the bill.  He stated                                                                   
that  he liked  the original  version and  asked whether  the                                                                   
committee   should  return   to   it.  Representative   Kelly                                                                   
acknowledged concerns about the original version.                                                                               
                                                                                                                                
9:48:22 AM                                                                                                                    
                                                                                                                                
Representative  Gara clarified that  he is not  nervous about                                                                   
standing up  to the  federal government.  He opined  that the                                                                   
language  in  the  bill  was   meaningless.  He  thought  the                                                                   
language belonged in a resolution.                                                                                              
                                                                                                                                
Representative  Gara asked  whether  violating federal  rules                                                                   
was   a  crime.   Representative  Kelly   responded  in   the                                                                   
affirmative.                                                                                                                    
                                                                                                                                
Representative  Gara asked  what  would happen  if the  state                                                                   
encouraged    individuals    to   violate    federal    laws.                                                                   
Representative   Kelly  understood   that  the  concern   was                                                                   
constitutional.  He acknowledged  that  an  Alaskan could  be                                                                   
sued by the federal government while following Alaskan law.                                                                     
                                                                                                                                
9:52:00 AM                                                                                                                    
                                                                                                                                
Co-Chair Hawker pointed to precedent  in the state related to                                                                   
the private use of marijuana.                                                                                                   
                                                                                                                                
Representative  Gara reiterated  his  concerns with  allowing                                                                   
Alaskans   to  violate   federal  law   through  state   law.                                                                   
Representative Kelly emphasized  how frequently Alaskans came                                                                   
up  against  the issue.  He  acknowledged  that the  bill  is                                                                   
contentious.                                                                                                                    
                                                                                                                                
Representative Gara  referred to an  April 8, 2009  memo from                                                                   
Legislative Legal Services saying  that violating federal law                                                                   
can lead  to prosecution, and  that the bill will  not change                                                                   
federal law  (copy on  file). He  emphasized that passage  of                                                                   
the   bill   would   set   Alaskans   up   for   prosecution.                                                                   
Representative  Kelly replied  that he  had studied  the memo                                                                   
and agreed with it: Someone following  state law could get in                                                                   
trouble with the federal government.  He stated he is leaning                                                                   
towards putting the attorney general  out there to defend the                                                                   
rights   of  Alaskans   where  the   federal  government   is                                                                   
infringing.                                                                                                                     
                                                                                                                                
HB 186 was set aside until later in the meeting.                                                                                
                                                                                                                                
9:56:27 AM     AT EASE                                                                                                        
9:57:25 AM     RECONVENED                                                                                                     
                                                                                                                                
HOUSE BILL NO. 186                                                                                                            
                                                                                                                                
     "An Act declaring that certain firearms and accessories                                                                    
     are exempt from federal regulation."                                                                                       
                                                                                                                                
10:28:05 AM                                                                                                                   
                                                                                                                                
Representative Kelly MOVED to  return to the original version                                                                   
of HB 168, 26-LS0627\R.  There being no OBJECTION,  it was so                                                                   
ordered.                                                                                                                        
                                                                                                                                
Representative Kelly MOVED to ADOPT Amendment 1:                                                                                
                                                                                                                                
     Page 1 line 10:                                                                                                            
     Delete: "understood"                                                                                                       
     Insert: "intended"                                                                                                         
                                                                                                                                
     Page 2 line 2:                                                                                                             
     Delete: "understood"                                                                                                       
     Insert:   "intended"                                                                                                       
                                                                                                                                
     Page 2 line 12:                                                                                                            
     Delete: "understood"                                                                                                       
     Insert:   "intended"                                                                                                       
                                                                                                                                
Co-Chair Stoltze OBJECTED for DISCUSSION.                                                                                       
                                                                                                                                
Representative Kelly  explained that the  Judiciary Committee                                                                   
(JUD)  had one  amendment to  replace  the word  "understood"                                                                   
with "intended" in three places.                                                                                                
                                                                                                                                
Representative  Fairclough queried  the  discussion that  had                                                                   
taken place in JUD regarding the  word change. Representative                                                                   
Kelly  replied  that  he agreed  with  JUD's  statement  that                                                                   
"intended"  was a  better  way  to describe  what  HB 186  is                                                                   
attempting to do. "Understood"  meant that everyone had to be                                                                   
on the same page.                                                                                                               
                                                                                                                                
Co-Chair  Stoltze  removed  his  OBJECTION.  There  being  no                                                                   
further OBJECTION, Amendment 1 was ADOPTED.                                                                                     
                                                                                                                                
10:29:55 AM                                                                                                                   
                                                                                                                                
Co-Chair Hawker  pointed to two  provisions on page  3(d). He                                                                   
liked  the first  provision saying  that  the state  attorney                                                                   
general shall defend citizens  if they are prosecuted through                                                                   
acting in compliance  with HB 186. He had concerns  about the                                                                   
second  provision  regarding  the  attorney  general  seeking                                                                   
declaratory  judgment from  the  courts that  the section  is                                                                   
consistent with  the U.S. Constitution. He  requested further                                                                   
explanation.   Representative   Kelly  responded   that   the                                                                   
provision had come from Montana.  The sponsors were concerned                                                                   
that intent did not carry enough weight.                                                                                        
                                                                                                                                
Co-Chair Hawker thought that intent  to manufacture a firearm                                                                   
was a  lot different than  an accessory.  He did not  want to                                                                   
inadvertently  trap someone.  He  asked  whether the  sponsor                                                                   
would accept  leaving in  the first  sentence and taking  out                                                                   
the notice and intent sentence.                                                                                                 
                                                                                                                                
10:32:47 AM         AT EASE                                                                                                   
10:37:07 AM         RECONVENED                                                                                                
                                                                                                                                
Co-Chair Hawker proposed conceptual Amendment 2:                                                                                
                                                                                                                                
     Page 3, commencing on line 22, remove the sentence                                                                         
     beginning with "On receipt of" and ending with "the                                                                        
     Constitution of the United States."                                                                                        
                                                                                                                                
Representative Gara  OBJECTED for discussion. He  agreed with                                                                   
the amendment  and guessed it  could save the  state $200,000                                                                   
each year.  With the  sentence, the state  would have  to pay                                                                   
costs   for  anyone   wanting   to  file   civil   litigation                                                                   
challenging the federal regulation.  He anticipated that lots                                                                   
of people would want to litigate  and the state would have to                                                                   
respond each time.                                                                                                              
                                                                                                                                
Co-Chair Stoltze stated his concerns.                                                                                           
                                                                                                                                
Co-Chair Hawker maintained the amendment.                                                                                       
                                                                                                                                
Representative  Gara removed  his OBJECTION.  There being  no                                                                   
further OBJECTION, conceptual Amendment 2 was ADOPTED.                                                                          
                                                                                                                                
10:39:27 AM                                                                                                                   
                                                                                                                                
Co-Chair Hawker  clarified for the record that  the committee                                                                   
was moving HB 186 as amended, not the JUD version.                                                                              
                                                                                                                                
Representative  Crawford commented  that the  bill was  about                                                                   
manufacturing,  not just  about  firearms.  He wondered  what                                                                   
would happen to a person who wanted  to manufacture something                                                                   
else, such  as a pesticide to  use in state that  was against                                                                   
federal  law. He  thought equal  protection  issues could  be                                                                   
opened up. Representative  Kelly responded that  the focus of                                                                   
the bill is strictly on the Second  Amendment. He agreed that                                                                   
similar  arguments   could  be   made  for  other   federally                                                                   
regulated  materials that  the  state believes  it should  be                                                                   
regulating.                                                                                                                     
                                                                                                                                
Representative Crawford  asked if the legislation  could then                                                                   
have   far-reaching   ramifications.   Representative   Kelly                                                                   
thought the concept of arguing  state sovereignty could carry                                                                   
over,  but   he  did  not   believe  the  legislation   would                                                                   
necessarily trigger the response.                                                                                               
                                                                                                                                
Representative  Crawford  reiterated his  question  regarding                                                                   
the manufacture  of federally  regulated goods in  the state.                                                                   
He   thought   others   would    want   similar   protection.                                                                   
Representative  Kelly  agreed   that  other  areas  could  be                                                                   
discovered  where the  federal  government was  overreaching,                                                                   
but  thought  the focus  of  the  bill  was more  on  state's                                                                   
rights.                                                                                                                         
                                                                                                                                
Representative  Crawford  returned  to  the  example  of  the                                                                   
pesticide. The  federal government  had strong concerns,  but                                                                   
he could foresee someone in the  state wanting to manufacture                                                                   
the pesticide because it would  be profitable. Representative                                                                   
Kelly agreed, but  reiterated his belief that  the bill would                                                                   
not trigger the response.                                                                                                       
                                                                                                                                
10:44:30 AM                                                                                                                   
                                                                                                                                
Representative Fairclough asked  whether the "Made in Alaska"                                                                   
reference was  tied to Alaska's  procurement code  or defined                                                                   
elsewhere. Representative  Kelly replied  that the  stamp was                                                                   
simply stating where the product  was made. The provision was                                                                   
not attempting to connect to any other definition.                                                                              
                                                                                                                                
DEREK  MILLER,  STAFF, REPRESENTATIVE  MIKE  KELLY,  SPONSOR,                                                                   
added   that  the   provision  was   modeled  after   Montana                                                                   
legislation. He offered to check the procurement code.                                                                          
                                                                                                                                
Representative  Fairclough  pointed  out that  inserting  the                                                                   
code would strengthen  the legislation. She  explained anyone                                                                   
could stamp  "Made in  Alaska" on a  product and  trigger the                                                                   
interstate commerce clause. Specific  criteria must be met by                                                                   
a manufacturer if  the defined procurement code  is used. Mr.                                                                   
Miller offered to find the "Made in Alaska" statute.                                                                            
                                                                                                                                
Representative  Gara turned  to page  3, lines  15 to 17.  He                                                                   
wondered  whether there  were rules in  Alaska regarding  the                                                                   
proper  and safe  manufacturing  of firearms.  Representative                                                                   
Kelly thought  there were rules governing the  manufacture of                                                                   
products, although not specifically firearms.                                                                                   
                                                                                                                                
Representative  Gara noted that  under federal law  there may                                                                   
be regulations that some view  as abusive, but there are also                                                                   
rules that  are good, such  as prohibiting the  production of                                                                   
guns that blow  up and safety rules that protect  hunters. He                                                                   
cautioned against  putting a "Made in Alaska" stamp  on a gun                                                                   
that does not follow those rules.                                                                                               
                                                                                                                                
10:49:12 AM                                                                                                                   
                                                                                                                                
Co-Chair  Hawker requested  the citation  for the  applicable                                                                   
federal  statute. Representative  Gara  thought  it would  be                                                                   
helpful  to go  through  the  federal statutes.  He  believed                                                                   
certain kind of dangerous firearms were regulated.                                                                              
                                                                                                                                
Representative  Kelly emphasized  that HB  186 would  trigger                                                                   
Alaska regulation.  He believed the issue would  be addressed                                                                   
through the regulatory process.                                                                                                 
                                                                                                                                
Co-Chair Hawker pointed  out that the paragraph  (c) does not                                                                   
deal with the manufacturing process  but only provides for an                                                                   
Alaskan identifier. Representative  Kelly added that the bill                                                                   
does  not  purport  to  be  the   only  thing  governing  the                                                                   
manufacture process.                                                                                                            
                                                                                                                                
Representative Gara  pointed to page  2, line 23,  which says                                                                   
that  a personal  firearm manufactured  in the  state is  not                                                                   
subject to federal  law, and maintained that  a firearm could                                                                   
be manufactured in the state without  following federal rules                                                                   
about  safety. He  cautioned that  an unintended  consequence                                                                   
could be advertising to the public  the possibility of unsafe                                                                   
weapons, which  could have a damaging  effect on the  sale of                                                                   
Alaska  products.  Co-Chair Hawker  did  not  agree that  the                                                                   
provision was saying that the product was inferior.                                                                             
                                                                                                                                
10:53:03 AM                                                                                                                   
                                                                                                                                
Representative     Gara    suggested    protecting     Alaska                                                                   
manufacturers  from possible unintended  consequences  by not                                                                   
exempting  firearms from  federal rules  related to  consumer                                                                   
safety.  He  stressed  that  the law  as  written  would  not                                                                   
require regulation that included safe manufacture.                                                                              
                                                                                                                                
Representative  Kelly stated  that  the law  intended to  get                                                                   
away from federal  regulation. He emphasized that  it did not                                                                   
preclude state  regulation, particularly  related to  safety.                                                                   
He added that general rules regarding safety would apply.                                                                       
                                                                                                                                
Representative Gara  wondered if the sponsors  would consider                                                                   
a provision  saying manufacturers  are not exempted  from the                                                                   
safety portions of federal law.  Representative Kelly replied                                                                   
that he  would object  because  that would  gut the bill.  He                                                                   
thought that federal safety regulations  adopted by the state                                                                   
would then be state regulations.                                                                                                
                                                                                                                                
Representative  Gara  reiterated  concerns: first,  the  bill                                                                   
communicates approval of committing  a federal crime; second,                                                                   
the state  will pay for legal  fees when someone  commits the                                                                   
crime; and three, safety issues.                                                                                                
                                                                                                                                
Representative  Kelly  thought  the safety  issues  would  be                                                                   
addressed  in regulation.  Regarding the  second concern,  he                                                                   
believed the  state had  been mistaken  in failing  to defend                                                                   
rights  to  manage  fish  and  game  and  regulate  navigable                                                                   
waters.  He wanted the  state to  defend individual  Alaskans                                                                   
from the federal government.                                                                                                    
                                                                                                                                
10:57:54 AM                                                                                                                   
                                                                                                                                
Co-Chair  Hawker  MOVED  to  report CS  HB  186(FIN)  out  of                                                                   
Committee   with    individual   recommendations    and   the                                                                   
accompanying fiscal  note. There  being NO OBJECTION,  it was                                                                   
so ordered.                                                                                                                     
                                                                                                                                
CS  HB  186(FIN)  was  REPORTED  out  of  Committee  with  no                                                                   
recommendation and attached new  indeterminate fiscal note by                                                                   
the Department of Law.